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The United States Supreme Court really cares about your ability to vote — once you start walking into a polling place. Before you actually cross that magical line, however, the court is okay with a healthy dose of voter suppression.
Minnesota has a law that prohibits people from wearing a “political badge, political button, or other political insignia” in polling places on Election Day. The law pits two important interests against each other — the right to vote in a safe environment and the right to say (and wear) what you want.
On Thursday, the court ruled 7-2 in Minnesota Voters Alliance v. Mansky in favor of the second set of rights, concluding that Minnesota’s political apparel law violates the First Amendment. The Supreme Court struck down the Minnesota law, finding that it is overly broad so people will not know what they can and cannot wear to polling places. The court was right on that point; the law is too broad and leaves too much room for interpretation.
While the court struck down this particular state law, it also waxed poetic about prior Supreme Court case law that does allow the government to limit speech in and around polling places.
But while the court struck down this particular state law, it also waxed poetic about prior Supreme Court case law that does allow the government to limit speech in and around polling places in order to prevent voters from being intimidated, confused, or defrauded. Put another way, the court implied that Minnesota’s problem was that it drafted a law that was too broad, not that it was trying to protect voters at polling places by limiting speech. Indeed, the Supreme Court’s majority decision, written by Chief Justice John Roberts, gave credence to Minnesota’s argument that a polling place should be “an island of calm in which voters can peacefully contemplate their choices.”
This is a lovely sentiment. However, in addition to the fact that it ignores the reality of most voters’ experiences, the decision is excruciatingly ironic in light of recent Supreme Court cases that make it more difficult for Americans to exercise their right to vote in the first place. The court seems fine with state laws that force the voters to swim upstream before arriving at that “island of calm.”
The decision is excruciatingly ironic in light of recent Supreme Court cases that make it more difficult for Americans to exercise their right to vote in the first place.
Indeed just a few days ago, in Husted v. A. Philip Randolph Institute, the court blessed Ohio’s aggressive practice of voter purging. Under Ohio law, if a voter skips one federal election cycle they are sent a notice in the mail asking them to confirm that they still live at their current residence. If that voter does not respond or vote over the next four years, they will be taken off the voter rolls and will not be allowed to vote the next time they do show up to the polls.
In the Ohio case, the court spent a lot of time talking about the need to “protect the integrity of the electoral process.” But lost among this rhetoric is the fact that Ohio’s law disproportionately disrupts the ability of poor and minority voters to vote (not coincidentally these minority voters are disproportionately Democrats).
And lest we forget, just five years ago, the court’s landmark decision in Shelby County v. Holder essentially eviscerated half of our nation’s Voting Rights Act. Congress passed the Voting Rights Act in 1965 to address pervasive discrimination against African American voters. One part of that law required that certain states or localities with a history of voter discrimination clear any changes to their voting laws with the federal government before those changes went into effect.
The Supreme Court is right that polling places deserve some protection. Even in our hyper-partisan climate, voters should have space when they enter a polling place.
But in the Shelby Country case, the court invalidated the formula used to determine which states and localities were subject to this requirement. That had the practical effect of meaning that jurisdictions with a history of discrimination can now pass voting changes that make it more difficult to vote (like implementing voter identification laws, eliminating early voting, or reducing the number of polling places) without having the check in with the federal government first.
The Supreme Court is right that polling places deserve some protection. Even in our hyper-partisan, hyperbolic, vitriolic political climate, voters should have space, both physical and mental, when they enter a polling place. Polling places should not be treated like town squares. Voters should not be inundated with campaign messages while they’re filling in their ballots.
But it’s more than a little depressing that the court can openly acknowledge the importance of the environment in which one votes while also making it exceedingly difficult for some people to get to the environment in the first place.
The polling place is a special place, or so the Supreme Court says. But only for some.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles and president of the Los Angeles Ethics Commission. She tweets at @LevinsonJessica.