U.S. Supreme Court Justice Samuel Alito Jr. Credit: Diego M. Radzinschi / ALM

U.S. Supreme Court Justice Samuel Alito Jr. was on a roll Wednesday with a litany of hot-button, current events tests of what apparel a Minnesota law might prohibit a voter from wearing inside a polling place.

Alito's hypotheticals dominated the questioning of Daniel Rogan, the state's lawyer, in the U.S. Supreme Court arguments in Minnesota Voters Alliance v. Mansky. The Minnesota Voters Alliance and several individuals are challenging the constitutionality of a state law that bans wearing “political badges, political buttons or political insignia” in the polling place.

“The problem is that so many things have political connotations, and the connotations are in the eye of the beholder,” Alito said to Rogan of the Hennepin County Attorney's Office. After Rogan's response that “political has a plain meaning in our statute based on that it's influencing elections,” Alito was off and running:

Alito: How about a shirt with a rainbow flag? Would that be permitted?

Rogan: It would be permitted unless there was an issue on the ballot that related somehow to gay rights.

Alito: How about a shirt that says “Parkland Strong”?

Rogan: That would be allowed. I think …

Alito: Even though gun control would very likely be an issue? I bet some candidate would raise an issue about gun control.

Rogan: I think today if that was in Minnesota, and it was “Parkland Strong,” that would be allowed in.

Alito: OK, how about an NRA shirt?

Rogan: Today in Minnesota, no, it would not, your Honor. I think that's a clear indication …

Alito: How about a shirt with the text of the Second Amendment?

Rogan: I think that could be viewed as political.

Alito: How about the First Amendment?

Rogan: It would be allowed. There are obviously a lot of examples that have been bandied about here.

Alito: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?

Rogan: No, your Honor.

Alito: How about “All Lives Matter?”

Rogan: That could be perceived as political. I think obviously there are some hard calls and there are always going to be hard calls. That doesn't mean that the line we've drawn is unconstitutional or even unreasonable.

But Alito was not deterred. “How about an 'I Miss Bill' shirt? Or, to make it bipartisan, a 'Reagan/Bush '84' shirt? Rogan answered, “Yes, your Honor, I believe that that's political.” And  what about #MeToo, Alito asked. Rogan said that would be political and not allowed if a related issue had arisen in a campaign.

Justice Stephen Breyer saved Rogan, unflappable throughout hypotheticals posed by Alito, by changing the topic.

Rogan persisted in his argument that Minnesota's law, now more than 100 years old, had never caused a problem and that the state had an interest in protecting the dignity and decorum of the polling place. No one has been prosecuted for ignoring an election official's request that he or she cover up or take off the political apparel, he said.

Both Rogan and the challengers' lawyer, J. David Breemer of the Pacific Legal Foundation, were pressed by the justices on where to draw the line on what and how much speech could be restricted by the state in the nonpublic forum of the polling place.

Breemer, who argued the state ban was unconstitutional on its face, frustrated Justices Anthony Kennedy and Elena Kagan. They asked him for a “workable rule” that tells a state how far it can go in restricting speech in a polling place. Breemer said it was “hard to draw a line.”

Kennedy suggested that his response was an argument for “allowing a good faith determination by polling officials on a case-by-case basis” of what apparel violates the state ban.

Eleven states have bans similar to the Minnesota law, according to Rogan. A decision is expected by July.

 

Read more:

Clarence Thomas, in Dissent, Asserts Gun Rights Aren't 'Favored' at High Court

Sotomayor Confronts DOJ's Francisco About Switched Position in Ohio Voter Case

US Justice Department Takes Alito's Side in New Stance Against Union Fees