When the state of Minnesota passed a law in 1912 that prohibited voters from wearing a “political badge, political button or other political insignia” inside a “polling place on primary or election day,” it represented one more step in a two-decade Progressive effort to reform elections. In the elections of the late 19th-century, voting had been a raucous affair where men would boisterously and publicly proclaim their political identity. But the burgeoning Progressive movement sought to make casting ballots a peaceful and orderly experience unfettered by electioneering.
Minnesota was not alone in passing such reforms. By 1912, the vast majority of states had adopted practices intended to civilize voting. Ballots were made secret and government-vetted, and campaigning was banned in close proximity to the polls. These reforms significantly shifted election-day culture but were largely noncontroversial. Occasionally, challenges to these laws arose – a debate over a Tennessee law that banned distributing campaign brochures or soliciting votes within 100 feet of polling places reached the Supreme Court in 1992. The Court upheld the law, though, on the grounds that speech could be limited when it threatened free voting.
When the Minnesota voter apparel law met legal challenge in this year’s Court session, it met a different outcome. In a 7-2 ruling issued yesterday, the Supreme Court struck down the law, saying that its limits on free speech were too broad given its vague definition of “political apparel.” The decision may impact other laws in ten states.
The case and the reaction to it has reopened a debate about speech and conduct in the polls that began more than a century ago. As Richard Bensel, a professor of American politics at Cornell University, writes in his book The American Ballot Box in the Mid Nineteenth Century, polls did not always have the privacy and decorum that we have come to expect of them.
“One of the standards that the courts had for whether an election was free or not was if a man of ‘ordinary courage’ would be intimidated in approaching the ballot box,” he says. “If you were a timid voter and you were deterred, that was fine.”
According to Bensel, the voting process back then was less an effort to uncover the true “democratic will” of the American people and more an opportunity for communities to demonstrate which political party they allied themselves with. Though voting was a civilized affair among elite precincts, where voters often wore topcoats to the polls and had servants discreetly place their ballots in the box, most of the electorate engaged in a publicized, chaotic process to cast their votes. Instead of the secret, government-issued ballots that today’s polls use, entrepreneurs called “party agents” would hawk party-specific tickets at the voting window, trying to issue as many ballots for their candidate as they could. Because all the gathered voters knew which party each agent was allied with, they knew which individuals to cheer or publicly denounce as they approached the ballot box.
“Often there were hundreds of people standing around the voting window, often jostling and making catcalls and comments at the person voting… the jostling was quite vigorous and sometimes violent,” says Bensel. However, he says that despite the chaos (or perhaps because of it), voting was usually a buoyant affair. “Parties would bring barrels of whiskey and supply their voters with them – they were almost like festivals, in which the major event was this voting.”
The particularly unruly election of 1882 even provided the chaotic backdrop for the culmination of the Hatfield-McCoy feud, an infamous and often bloody conflict between two rural families in eastern Kentucky. The election day festivities quickly turned sour when the Hatfield and McCoy sons got into a drunken brawl; Ellison Hatfield was mortally wounded, and his brothers shot the three McCoy men in retaliation. Though this incident was particularly egregious, it exemplified to reformists the need to establish order at the polls.
The unruliness of the mid-19th-century voting experience was undoubtedly exacerbated by the deeply divided identity politics that prevailed at the time. New waves of immigration, especially of Catholics from Ireland, were changing the country’s ethnic and religious makeup, and nativist groups sprang up in backlash. Leaders of the nativist Know-Nothing party in Baltimore, for example, famously distributed shoemaker’s awls with which to stab Irish voters as they collected their Democratic ballots.
“These were very noisy, raucous things in which speech was collective: you would insult Irish voters, or on the other side insult nativist members,” says Bensel. “Belonging to a party was really important, not because of the issues, but because it integrated you into this network of support and public standing.”
As entrenched as the voting chaos had become, the deep corruption in the 1888 presidential election, when Benjamin Harrison just barely ousted incumbent Grover Cleveland, was outrageous enough to incite a movement toward reform. Politicians used large sums of money to buy votes, and the public ballots made it apparent whether the bribed voters upheld their end of the bargain. Election clerks who collected the votes at the precincts tampered with the results, and ballot fraud abounded as people disguised themselves to vote more than once.
This controversy, along with the nascent Progressive movement that aimed to “clean up” local politics, led to the adoption of “Australian ballots,” which were issued by government officials instead of political parties and therefore concealed the voters’ party preference. The move to these ballots had already taken place in Massachusetts and Kentucky before the 1888 election, but it spread quickly throughout the country thereafter. By 1892, 32 of the 44 states had adopted secret ballots, and seven more had done so by 1896.
“Public opinion was so done with corruption, drinking at the polls, all these disreputable practices,” says Bensel. “They would give you this ballot, and you would go and mark it in private and then turn it back in.”
Voter privacy, previously a bourgeois privilege, quickly became the norm in the 20th century, and states like Minnesota adopted laws that wrote precinct civility into law.
While these policies went largely unchallenged for much of the 20th century, controversy arose occasionally about the tension they created between free speech and voting rights. An Alabama law that barred newspapers from publishing election-related editorials on election day, for example, was unanimously struck down by the Supreme Court in 1966. In the opinion of the court, Justice Hugo Black wrote that it was “difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.”
The Minnesota case began when conservative voter named Andrew Cilek tried to enter the polls wearing a Tea Party T-shirt and a “Please I.D. Me” button during the 2010 election. He refused to remove his button or cover his shirt and was twice turned away; he eventually was allowed to vote when he returned a third time with his lawyer.
Cilek argued that the policy infringed on his right to free speech, which his attorneys told the Supreme Court during oral arguments this February “doesn’t stop at the polling place door.” Justices criticized the ambiguity of the laws during arguments, wondering how election officials would determine what sort of clothing was to be considered “too political.”
Supporters of the law, however, argue that clothing like Cilek’s runs the risk of intimidating fellow voters. They take special issue with the “Please I.D. Me” button, which many say perpetuates the false message that Minnesota voters must present identification to vote. Justice Sotomayor, who joined the dissent, said in oral arguments that the button carried “a highly charged political message… intended to intimidate other people to leave the polling booth.”
Chief Justice John Roberts’ majority opinion centered on the difficulty of lawfully enforcing the Minnesota law. “Minnesota, like other states, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering,” he allowed, but continued that “while the choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application.”
According to Amy Howe’s analysis on SCOTUSblog, the majority did not dispute that states may impose reasonable restrictions on speech in order to promote order at the polls, but took issue with what little guidance the Minnesota law provided in assessing what speech would be banned. In its majority opinion, the court left open the possibility of states passing more targeted apparel restrictions, but the lack of specificity exposed voters to possible First Amendment infringements.
Jim Gardner, a professor at the University at Buffalo Law School who specializes in election law, criticizes how seriously the court considered First Amendment interests in the case, advocating instead for the importance of keeping campaigns out of the voting booth. He sides with the dissent, saying that the proper constitutional decision is clear. “The First Amendment interests at stake are trivial,” he says. “Why do you have to wear campaign slogans into the campaign place? The only reason I can think of is influencing another person’s opinion.”