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Supreme Court Rules Political Swag Ban Unconstitutional

The U.S. Supreme Court has struck down Minnesota’s ban on political apparel at polling places, in what can be considered a huge victory for the promotional products industry.

In a 7-2 decision, the justices declared last week that while some forms of advocacy may be excluded from polling places, Minnesota’s law was simply too broad, ABA Journal reported. The state’s legislative language does not define what “political” means and the state’s policy of banning any item promoting a group with recognizable political views was overreaching, said Chief Justice John Roberts.

“The state must be able to articulate some sensible basis for distinguishing what may come in from what must stay out,” Roberts wrote in the majority opinion of Minnesota Voters Alliance v. Mansky. “Here, the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the state has provided in official guidance and representations to this court, cause Minnesota’s restriction to fail even this forgiving test.”

Andrew Cilek, the executive director of the Minnesota Voters Alliance, brought the suit after poll workers confronted him about a shirt with a Tea Party logo that read “Don’t Tread on Me” – a shirt he wore when going to vote in 2010. Cilek argued that the state’s broad law left it up to the subjective judgment of poll workers to determine which messages are political – and thus prohibited – and which are permissible. Previously, a lower court sided with Minnesota, believing the ban advances the government’s interest in “peace, order and decorum” at polling places.

Minnesota gives election judges the authority to decide whether an item is banned, which applies to words and symbols that a reasonable person would perceive as conveying a message about the electoral choices, as well as “issue-oriented material designed to influence or impact voting.” If an issue qualifies as any subject on which a candidate or party has taken a stance, Roberts said that was asking for too much. “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,” the chief justice wrote.

While all 50 states have laws limiting expression to an extent, fewer than 10 have rules as broad as Minnesota’s regulations, according to press reports. Other states such as California and Texas, Roberts said, have more clear descriptions of banned items. California bans the display of information “that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and buttons, hats or shirts containing such information. Meanwhile, Texas bans “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.”

In a dissenting opinion, Justice Sonia Sotomayor said she would certify the case to the Minnesota Supreme Court for a definitive interpretation of the political apparel ban. That “likely would obviate the hypothetical line-drawing problems that form the basis of the court’s decision today,” Sotomayor wrote.