Analysis Law and Policy

Justice Roberts Lands Another Blow in the Fight Against Voters

Lisa Needham

Roberts’ opinion in the "political apparel" case ignores the real goal of groups like the Minnesota Voters Alliance: to simply cause enough disruption, confusion, and fear that voters leave the polls.

On Thursday, the U.S. Supreme Court handed down a decision in Minnesota Voters Alliance v. ManskyThe Minnesota Voters Alliance’s ostensible goal in bringing the lawsuit was to be able to wear political apparel at the polls, but the case is really about using that political apparel to intimidate voters.

The split 7-2 decision strikes down a century-old Minnesota law prohibiting the wearing of political apparel to the polls. It’s a disappointing, but not unexpected, victory for the conservative group at the heart of the case, Minnesota Voters Alliance (MVA). It’s also yet another decision from Chief Justice John Roberts that has the net effect of making it harder to vote.

The case came about when MVA Executive Director Andrew Cilek deliberately wore two items while casting his vote in 2010 in Minnesota—a “Don’t Tread On Me” t-shirt and a button that said “Please ID Me”—and was subsequently turned away. Both of these items were designed to provoke people. The former is inextricably associated with the conservative Tea Party and the latter was seemingly designed to sow confusion in a state that doesn’t have voter ID requirements. They were also both designed to provoke a lawsuit: MVA had already tried to have Minnesota enjoined from enforcing its ban on political apparel for the 2010 election and been denied.

Roberts’ opinion explains this in the most cursory terms, noting only that Cilek wore the two items of clothing. He gives no context to the meaning of that clothing, and he takes at face value MVA’s assertion that it is simply a non-profit that “seeks better government through election reforms.” In reality, MVA is a voter suppression group. They’re deeply committed to restricting the franchise of voting and creating barriers for people of color, people with low incomes, re-enfranchised ex-felons, and people whose living situation is in flux.

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Unfortunately for MVA, their members live in Minnesota, a state that is known for fiercely protecting the right to vote. In 2012, MVA sued the state to try to limit its same-day voting registration system, but lost that lawsuit. Same-day voting registration improves turnout, and, in fact, Minnesota consistently has the highest voter turnout in the nation. Same-day voting registration also allows people to update their registration as late as Election Day, which is key for individuals who have transient living situations and relocate during election season.

In 2016, MVA brought another lawsuit to try to make voting harder for people who had been convicted of a felony but had their voting rights restored.

Minnesota’s citizens have made clear they don’t endorse the views of groups like MVA by resoundingly rejected a ballot initiative for a voter ID constitutional amendment back in 2012.

Roberts ignored all of this in his opinion in favor of an oddly misplaced discussion of the history of voting in the United States, noting that it used to be much more chaotic, with groups forming to harass people they perceived to be voting for the other side. Over time, all 50 states passed laws to restrict that sort of behavior, and back in 1992, the Supreme Court upheld a Tennessee law that barred the display or distribution of campaign materials within 100 feet of the entrance of a polling place. Because of that decision, any state with a similar restriction should not run afoul of the law.

Minnesota’s law is somewhat broader than Tennessee’s. It bars the wearing of a “political badge, political button, or other political insignia” at or near the polling place on Election Day. Though Roberts agreed that it was permissible for Minnesota to decide that the interior of a polling place should be an “island of calm” where voters can contemplate their voting choices in an undisturbed fashion, he found that Minnesota’s law went too far and barred too much speech. The Court said that, by interpreting the ban to cover issue-oriented material designed to affect voting, Minnesota state officials could end up stopping people from wearing any number of things. For example, the Court said, someone wearing an ACLU shirt, Chamber of Commerce apparel, or even Boy Scout gear, could be prohibited if any of those groups had taken a position on something during the election.

It’s likely true that Minnesota’s voting law could be better written and more narrowly tailored. In fact, in striking down the law, that’s what the Supreme Court is really supposed to do: provide guidance on how the law could be made better. Alternatively, it could just tell Minnesota that it can’t ever have a law that prohibits anything other than actual campaign slogans, insignias, and candidate names. However, the Court here tried to thread a needle and failed.

The opinion praises the more narrowly-written laws of other states, such as California—which prohibits the display of information advocating for or against any candidate or measure—or Texas—which prohibits wearing anything related to a candidate, measure, or political party appearing on the ballot. However, neither of those actually get at Minnesota’s concern: stopping groups like MVA from sowing discord and confusion at the polling place. Cilek’s display of the “Please ID Me” button was specifically designed to imply, particularly to new or infrequent voters, that Minnesota had a voter ID requirement and that they would be asked for their ID as well. Or Cilek was staking out a political position: Minnesota should have voter ID. 

The Court tries to address this, dropping in a small footnote to say that Minnesota can prohibit messages that are intended to mislead voters about voting requirements or procedures. Some have praised this as a victory, reaffirming that states could indeed bar misleading messages at the polls. However, the rest of the opinion chastises Minnesota for giving too much discretion to its election judges to decide what sort of message is appropriate or inappropriate. It’s unclear how those same judges are not properly equipped to decide if a message is political but are properly equipped to decide if something is designed to mislead voters.

Roberts’ decision also ignores the real goal of groups like MVA: to simply cause enough disruption, confusion, and fear that voters leave the polls. Imagine being an immigrant, newly enfranchised to vote in the 2018 elections after seeing immigrants routinely harassed, arrested, and deported, and seeing an “Immigrants Go Home” shirt at the voting booth. Imagine being a new resident to Minnesota and seeing a “Please ID Me” button and accidentally believing such a thing is required.

MVA’s goal wasn’t to wear political apparel as such; it was to use political apparel to intimidate voters.   

Perhaps the most wrong-headed part of this decision is that there was a much easier—and fairer—way to resolve this, as Justice Sonia Sotomayor’s dissent points out. Usually, when a state statute is challenged in this fashion, the Supreme Court can decline to decide the matter. Instead, they certify, or refer, the case to that state’s supreme court so that the state can provide a definitive interpretation of the statute. That’s because the U.S. Supreme Court has held that state courts should have a reasonable opportunity to construe a state statute.

The dissent notes that federal courts such as the U.S. Supreme Court should always be hesitant to speculate about how to construe a state law if the state court is ready and able to address the construction of that law. The majority opinion dismissed this idea, saying that the case had dragged on for seven years and no request for a referral certification action to the state court had been brought, but Justice Sotomayor’s dissent properly notes that there is no time limit on requesting or receiving certification. By deciding as it did, the Court overstepped and instructed Minnesota on how to interpret its own state law, rather than properly allowing the state to do so.

Worst of all, Minnesota itself has no way to fix this statute prior to the 2018 midterm elections, as Minnesota’s legislature isn’t in session again until January 2019. The law banning political apparel was struck down, but nothing replaces it at this time. Groups like MVA will be free to wear whatever they want to the polls, as long as it doesn’t refer to a specific candidate.

At its root, this decision is yet another instance of Justice Roberts’ utter dismissal of the importance of voting. Even as a young attorney in the U.S. Department of Justice’s Civil Rights Division, he suggested a very narrow interpretation of the Voting Rights Act (VRA). In the early 1980s, as parts of the VRA were about to expire, there was a dispute between Democrats and Republicans about how to extend the act. Democrats favored an interpretation where evidence of the effects of discrimination was sufficient to prove discrimination, where Republicans like Roberts favored a narrower interpretation that required intent. In other words, Roberts’ view would allow a state to engage in a widespread act of discrimination against Black voters as long as there was no obvious statement of intent to discriminate. It was the reading favored by people like Strom Thurmond and think tanks like the Heritage Foundation.

In 2013, he authored the majority opinion in Shelby v. Holder, which functionally killed a key part of the VRA—the provision that required Southern states with a history of discrimination to get federal approval, known as “preclearance,” before changing their election laws. That preclearance review ensured that marginalized communities, including Black, Latino, Asian, Native American, and Alaskan Native voters were protected from discrimination because potentially harmful voting changes were blocked from going into effect. Almost immediately after the decision in Shelby, Southern states began to do things like close early voting locations and move primaries to earlier months, moves which would have needed preclearance prior to the decision. Roberts thinks data on partisan gerrymandering is “sociological gobbledygook.” And of course, he enthusiastically joined the Citizens United decision, which paved the way for letting big money influence elections to the point of incoherence.

Things like the VRA, keeping dark money out of politics, rejecting voter ID laws, and respecting the integrity and sanctity of the polling place are designed to protect all voters. And frankly, the voters that most need protection are people of color and people otherwise marginalized by the political process, such as people with low incomes and re-enfranchised people with a felony conviction.

Justice Roberts is no friend to people of color or people on the margins, and has made clear that he thinks white people and people with money are the ones that should direct elections and vote in elections. This decision is yet another step in executing that vision.

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