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Each of the 50 states has a law creating a campaign-free buffer zone outside polling places, laws the Supreme Court has long upheld. Today the court examined even stricter laws inside polling places. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Every state has some sort of a ban on political apparel and buttons inside of polling places. All were enacted in the late 1800s and early 1900s to end rampant violence and intimidation on election days. Minnesota and some 10 other states have the strictest laws. Minnesota bars voters from wearing apparel, buttons or badges that bear a, quote, "political message." Under the state's enforcement guidelines, poll watchers are told to ask any voter wearing such a message to either cover it up with a jacket or sweater or take it off. The guidelines give as examples Tea Party or moveon.org T-shirts.
Enter Andrew Cilek, a conservative political activist who wore a T-shirt to the polls that said, Tea Party patriots, don't tread on me. He refused to cover it up, and though he was still allowed to vote, he challenged the law in court, contending it violated his First Amendment right of free speech.
ANDREW CILEK: I think the fundamental principle is that I had a right to wear that T-shirt.
TOTENBERG: Inside the Supreme Court today, the justices weren't so sure, but both sides got quite a grilling. First up was Cilek's lawyer, David Breemer. Justice Kennedy - a statute that bans buttons that say vote for X or Y - would that be constitutional? Answer - no, I don't think it would be.
Chief Justice Roberts - there's a difference between actually interfering with someone's right to vote and intimidating them. Replied Breemer, there's no right to vote without being bothered at all. The chief justice persisted. Maybe after a sharp, bitter campaign, people should be able to vote in peace and quiet without being bombarded by all the sturm und drang of the campaign.
Justice Ginsburg noted that Mr. Cilek and his group were wearing please I.D. me buttons which falsely suggested that voters needed a photo ID to cast ballots. Answer - those could've been dealt with under the state's anti-intimidation and anti-fraud statutes. But try as they might, the justices couldn't get lawyer Breemer to give them a rule to measure permissible and impermissible regulation at the polling place. Justice Kennedy, perhaps the court's most aggressive advocate of free speech, all but threw up his hands. Why should there be speech inside the election booth at all? You're there to vote.
Defending the Minnesota law, attorney Daniel Rogan argued that the statute is aimed at protecting the decorum and integrity of the polling place. Chief Justice Roberts appeared skeptical. The law, he said, does reach quite a bit beyond what I think a reasonable observer would think is necessary. Justice Ginsburg - how far does this go? Can you wear a pin saying #MeToo or the ACLU defends free speech? Rogan replied that the line the state has drawn is to bar material that a reasonable person would understand as a message aimed at influencing electoral choices in the polling place.
Justice Alito - the problem is that so many things have political connotations that are in the eye of the beholder, and they are an invitation to arbitrary enforcement. Alito, the justice who expressed the most overt hostility to the law, then asked Rogan a series of questions aimed at poking holes in the state's argument.
Would the state ban a shirt with a rainbow flag? Answer - only if a gay rights question was on the ballot. How about a shirt that said #ParklandStrong? Would that be allowed - answer, yes. How about an NRA shirt - no. A shirt with the text of the Second Amendment - no because that would be viewed as political. The First Amendment - yes, it would be allowed - a Colin Kaepernick shirt, no.
Justice Breyer, exasperated - you can do this with all kinds of places where certain kinds of speech is limited - hospitals, schools, courtrooms. So if we're trying to have a place where a person has reflective thought for a moment after the hurly-burly of the campaign, this problem will inevitably arise. Picking up that thread, lawyer Rogan said there are always hard cases at the edge of any line, but just as the Supreme Court has banned all kinds of speech and banners on its own plaza, Minnesota has done the same thing at polling places. The polling place, he said, is not a public forum. It's a place to vote.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.