Challengers of a Minnesota law banning political apparel at polling places are asking the U.S. Supreme Court to decide whether voting should take place in “speech free zones.”

Speech shouldn’t be completely banned at polling places, First Amendment scholars told Bloomberg Law, but they disagree about the extent to which speech could veer into voter intimidation.

Under Minnesota’s law, voters can’t wear political badges, buttons, or insignia at polling places on primary or election days.

Nine other states have laws similar to Minnesota’s and there’s a circuit split about whether the government can impose a blanket ban on political speech in polling places. The Supreme Court will hear argument in the case Feb. 28.

Historically, the high court has had an expansive interpretation of free speech, but the views of its newest member, Justice Neil M. Gorsuch, are unclear.

Here, Andrew Cilek went to vote in the Nov. 2010 general election in Minnesota wearing a Tea Party shirt and “Please I.D. Me” button. An election official told him he couldn’t vote until he removed them or covered them up. Ultimately, he was allowed to vote but an election official took down his name for possible prosecution.

Cilek sued on free speech grounds, alleging that the ban on all political apparel was overbroad and violated the First Amendment. The district court upheld the law, citing the U.S. Supreme Court’s holding in Burson v. Freeman. It found that the ban was reasonably related to Minnesota’s interest in maintaining a safe polling place.

In Burson, a four-justice plurality of the court upheld a Tennessee law that imposed a 100-foot buffer zone around polling places where electioneering was prohibited.

How Much Speech?

Non-disruptive displays of political affiliation or candidate support should be permissible, Alan Chen told Bloomberg Law. Chen is a professor at the University of Denver Sturm College of Law whose scholarship includes First Amendment law.

The idea of saying someone has to cover up a button or t-shirt “in the context of the most important participatory act in our democracy doesn’t sit well with me in terms of the values underlying the First Amendment,” Chen said.

This isn’t about not allowing any speech in the polling place, Daniel I. Weiner told Bloomberg Law. Weiner is an attorney with the Brennan Center for Justice in Washington.

Weiner filed a friend-of-the-court brief on behalf of the state.

The state’s not trying to argue that people have a right not to be confronted by messages they disagree with when they vote, Weiner said.

But the state does have the right to take reasonable steps to make sure that the right to vote isn’t jeopardized by conduct that seeks to confuse or intimidate fellow voters or poll workers inside the polling place, he said.

Chen agreed that the state has a valid interest in protecting the right to vote, but Minnesota’s law goes too far and sweeps in “a lot of non-intimidating peaceful conduct,” he said.

There are less restrictive alternatives the state can take to prevent voter intimidation, he said. It could pass laws regulating the volume of speech in a polling place or prohibit actual disruption during voting, Chen said.

Campaign-Related Speech

Another attorney proposed an alternative remedy: Circumscribe only political speech that is “unambiguously” campaign related.

The details of what “campaign-related” is would have to be ironed out, James Bopp Jr. told Bloomberg Law. To do so, the Supreme Court would need to clarify its 1992 holding in Burson, he said.

Bopp’s law practice includes election law and First Amendment law. He filed a friend-of-the-court brief for the James Madison Center for Free Speech Inc., on behalf of the voters challenging the law.

Burson has been used to justify substantial limits on speech, Bopp said.

Weiner agrees speech should be allowed in polling places, but states need to be able to take “reasonable steps” to ensure the integrity of the voting process, he said.

The integrity of the process wasn’t violated here because there were no acts of intimidation, Chen said.

Weiner disagrees. The facts of the case show a concerted effort to disrupt the integrity of the voting process, he said.

There’s already a lot of confusion as to when an ID is required, Weiner said. The “Please I.D. Me” buttons were part of a “vigilante effort” to get poll workers to check IDs even though Minnesota doesn’t require them, he said.

When you go to vote, you don’t “check your First Amendment rights at the door,” but a polling place’s primary purpose—affording citizens the right to vote—"has to be paramount,” Weiner said.