Even if Minnesota voting becomes a battle of T-shirts, we’ll be OK

No doubt there will be plenty of kvetching about today’s U.S. Supreme Court decision striking down Minnesota’s law against wearing politically affiliated clothing at the polling place, a relic from the 19th century.

But let me ask you this: When’s the last time a T-shirt, a bumper sticker, or a lawn sign influenced your vote?

Minnesota enacted the law as part of a package designed to make the polling place “an island of calm” in the world of politics.

Fat chance. Fewer and fewer people are going to vote anymore with any sense of calm and little desire to find it. Regardless of what party they’re in, they’re unhappy and anxious to let the world know about it.

The state also believes the law provides a line between campaigning and voting. Taken together, it treats voters like children. We know the difference between the cacophony of nonsense that constitutes campaigning, and the act of voting. Give me my ballot, get out of my way, and, oh yes, say nothing about my “I’m With Stupid” T-shirt.

And the problem is that election judges make the call. What one judge may consider inappropriate attire at one polling place, another may find proper at another. Do people really want to have their speech regulated without specific standards?

The present law doesn’t define what “political” means in its ban of political speech. That’s a problem given that everything in civic discourse is now political.

“We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary,” Justice Roberts wrote, adding:

But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as ‘political.’ And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be be undermined by the very measure intended to further it.

This all started with two Republicans who filed suit against the law because of buttons that said “Please I.D. me,” a reference to the voter identification push at the time. It failed and failed big and it didn’t fail because people weren’t wearing enough buttons on its behalf.

It failed because voters in Minnesota were smart enough to see how the proposal has been used in other states to keep “those people” from voting, more than a response to a legitimate concern about fraud.

Only two justices — Breyer and Sotomayor — saw this any other way.

“There is no evidence that any individual who refused to remove a political item has been prohibited from voting, and respondents maintain that no one has been referred for prosecution for violating the provision,” Justice Sotomayor wrote in her dissent.

“Freedom of political speech is a cornerstone of the First Amendment,” Minnesota Secretary of State Steve Simon said, indicating he’d provide clearer guidance about what can be worn. “As Minnesota’s chief elections official, I am gratified that the Supreme Court today provided clarity for Minnesotans, while also recognizing the vital interest of maintaining an ‘island of calm’ in our polling places. The legislature now must change Minnesota law so that it is entirely consistent with the right of free speech and expression – while also maintaining the sanctity of the polling place. Until they do so, my office will work with local election administrators to ensure that the current law is administered in a manner faithful to the Court’s decision.”

Here’s the full opinion.