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Here’s a look at exchange in Supreme Court on Minn. voter clothing

The Supreme Court. Washington Post photo by Ricky Carioti

ST. PAUL -- In many ways, the U.S. Supreme Court’s decision Thursday to strike down a decades-old Minnesota voting law can be boiled down to a riveting exchange between one of the justices and a lawyer for the state last winter.

As the case was being argued before the court, Justice Samuel A. Alito Jr. pressed Daniel Rogan, a lawyer representing Minnesota, on what could and could not be worn inside polling places.

The context: during Minnesota’s 2010 election, a new Ramsey County policy — based on an old state law — offered examples of illegal polling place attire, including “issue oriented material designed to influence or impact voting,” and “material promoting a group with recognizable political views.”

“The problem is that so many things have political connotations, and the connotations are in the eye of the beholder,” Alito began. “And on Election Day, you’re going to have hundreds, maybe thousands of officials in Minnesota, and every one of them probably thinks that he or she is the reasonable observer.”

Then Alito got down to specifics.

Would a shirt with a rainbow flag be permitted, he asked Rogan?

“Yes, it would be … unless there was an issue on the ballot that — that related somehow to — to gay rights,” Rogan replied.

How about a shirt that said “Parkland Strong?”

That would be fine, Rogan said.

“Even though gun control would very likely be an issue?” Alito asked.

“I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was ‘Parkland Strong,’ I — I would say that that would be allowed in, that there’s not -”

“Okay. How about an NRA shirt?” Alito pressed.

Prohibited.

“How about a shirt with the text of the Second Amendment?”

“Your Honor, I — I — I think that that could be viewed as political…”

“How about the First Amendment?” Alito asked, to laughter.

“It would be allowed.”

A Colin Kaepernick jersey?

“No, Your Honor, I don’t think that that would be under — under our statute.”

How about “All Lives Matter”?

“That could be, Your Honor, that could be — that could be perceived as political. And I — I think obviously, Your Honor, there — there are some hard calls and there are always going to be hard calls. And that — that doesn’t mean that the line that we’ve drawn is — is unconstitutional or even unreasonable.”

Other Justices chimed in, before Alito got back to it.

“So if a shirt has “#metoo” that would be allowed or not allowed?”

“Your Honor, that would be — that — that would be an insignia. And if that was an issue in the — in — in — in elections in that polling place, that would be political.”

On Monday, the high court disagreed with the state, with a 7-2 decision written by Chief Justice John Roberts.

Not only did they say the Ramsey County policy was wrong — the very state law it was based on was “unconstitutional on its face,” to allow such abuses.

The old state law prohibits “political badges, political buttons, or other political insignia” inside a polling place on primary or election day. But it wasn’t until 2010, when an election judge asked Ramsey County elections manager Joe Mansky whether certain attire should be outlawed, that the law came under scrutiny.

During the 2010 election, Andrew Cilek was turned away form the polls for wearing a “Please I.D. Me” button and a T-shirt saying “Don’t Tread on Me,” with a Tea Party Patriots logo.

When asked why, Mansky produced the new policy, based on the state law, to guide judges. It prohibited “issue oriented material designed to influence or impact voting,” and “material promoting a group with recognizable political views.”

Cilek and his group, Minnesota Voters Alliance, sued on First Amendment grounds. A Federal District Court and the Eighth Circuit both sided with the state.

But the Supreme Court Thursday sided with the Alliance.

“No basis exists for rejecting Minnesota’s determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as ‘an island of calm in which voters can peacefully contemplate their choices,’ ” Chief Justice Roberts wrote, “But the line the State draws must be reasonable.”

The state needed a “sensible basis,” Roberts wrote, for determining what was banned, and what wasn’t. Even the word “political,” Roberts said, could be construed multiple ways.

Roberts called the application of the state law “haphazard,” saying the policy against “issue oriented material designed to influence or impact voting” raised more questions than it answered.

“Such a rule — whose fair enforcement requires an election judge to maintain a mental in­dex of the platforms and positions of every candidate and party on the ballot — is not reasonable,” Roberts wrote.

Even worse was the ban on any item “promoting a group with recognizable political views,” Roberts said — noting the law didn’t confine such groups to those with issues on the ballot. The number of groups could potentially be staggering, he argued.

During a celebratory press conference Thursday at the Minnesota Capitol, Cilek said, “The one thing that I’d like to say is so cool about this whole thing is just how an average person from St. Paul, Minn., can take a case, any kind of case, and stand up and then pool up a little bit of resources and go all the way to the United States Supreme Court. That’s a pretty cool thing.

“And win — that’s an even cooler thing!”

Justice Maria Sotomayor wrote the dissenting minority opinion which stated the high court should have had the Minnesota Supreme Court weigh in before declaring the law unconstitutional.

She argued that such things as the meaning of the word “political,” or what constitutes a “political badge, political button, or other political insignia” could be further narrowed or defined by Minnesota’s own Supreme Court, instead of simply tossing the law.

“The majority believes that the law is not ‘capable of reasoned applica­tion,’ but it reaches that conclusion without taking the preferential step of first asking the state courts to provide “an accurate picture of how, exactly, the statute works,” Sotomayor wrote.

On Thursday, Minnesota Secretary of State Steve Simon issued a statement thanking the Supreme Court for clarity and calling on the state Legislature to change the law “that it is entirely consistent with the right of free speech and expression – while also maintaining the sanctity of the polling place.”

In the meantime, Simon said he would issue “updated guidance to local election officials regarding ‘political apparel’ in the polling place,” and added, “Minnesotans can wear anything they want if they make use of our ‘Vote from Home’ law.”

Early voting in Minnesota starts on June 29 for the Aug. 14 primary.

Bill Salisbury contributed to this report.

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