Big Win For MAGA Hats At Supreme Court

In a largely expected decision, the Supreme Court today ruled that the government cannot restrict a person’s clothing choices while they are voting.

The ruling came down 7-2, and perhaps the margin was a bit of a surprise, but the First Amendment arguments made by the majority are not. It’s entirely consistent with majoritarian First Amendment views that white people can harass and intimidate black people — especially black people who dare to try to vote — in a myriad of ways as long as they don’t get physical. Freedom! As long as the whites don’t actually throw the banana at a black person while they are filling out their ballot, well, this Court would allow whites to brandish their potassium-rich snacks in any way they like.

Sorry, I’m butthurt because I’ve been to Mississippi and I know what black people have to go through in order to exercise their franchise. If I pull my Harvard-embossed sweatpants over my red ass, I get the decision here. It’s a totally normal way to view the world, if your “normal” perspective is through the lens of blinding privilege.

The case at issue is Minnesota Voters Alliance v. Mansky. Some guy went to vote in Minnesota, and wore one of those “Don’t Tread On Me” T-shirts. You know, the “MAGA hats before MAGA hats, but after the Klan hood fell out of fashion.”

Minnesota election monitors informed him that the shirt violated Minnesota’s ban on “political insignia” at polling places.

The ban is in place to prevent voter intimidation while people are trying to vote. We already have various bans about “electioneering” in and around polling places. You can’t plant a lawn sign within X feet of a polling station. And these bans have been largely upheld as a necessary impingement on free speech. If you can’t wear a sandwich board in support of a candidate, it stands to reason that you can’t wear a T-shirt in support of a candidate.

Taking it one step further, it stands to reason that you shouldn’t be allowed to wear a shirt with a slogan on it that has been associated with a candidate either. The difference between a voter pasting a “vote for Trump” bumper-sticker on their forehead and wearing a MAGA hat seems irrelevant to me.

But the Supreme Court was not willing to take that extra step. Chief Justice Roberts, joined by the other four conservatives, as well as Justices Ruth Bader Ginsburg and Elena Kagan, struck down Minnesota’s political insignia ban as overbroad:

It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576; see Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981) (warning of the “more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority”). Election judges “have the authority to decide what is political” when screening individuals at the entrance to the polls. App. to Pet. for Cert. I–1. 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. 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 undermined by the very measure intended to further it.

That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms.

Again, there is a universe in which Roberts’s reasoning makes a lot of sense. Damn near anything can be “political” these days. We live in a polarized nation where the very facts of our reality are debated in the political arena. I could wear a shirt with a polar bear on it, and some conservative could tell me I was making a “political” statement about reality of climate change and our need to do something about it. Which of course I would be. The Minnesota ban does indeed have the potential for arbitrary enforcement.

And, not for nothing, but more often than not, arbitrary speech restrictions are more likely to be deployed against minority voters, than for their protection. If I had to guess, this is why Ginsburg and Kagan were on board with Roberts’s opinion. Professor Rick Hasen is on board as well. There is reasonableness in this opinion. I vote in a white suburb, so one can imagine how a white poll worker would react if I walked in wearing a black power shirt and my pick in my hair.

Again, Roberts is being reasonable, at least reasonable from the perspective of white man who need not concern himself with this country’s history of suppressing the vote to non-whites and women. Roberts once gutted the Voting Rights Act because he personally decided that racism was over in the South. He can do a lot worse than this.

Still, as I said in my preview of this case before oral arguments, I would be willing to cede my right to my non-violent sartorial choices while voting, if I could take away the white supremacists’ rights to try to intimidate voters with their sartorial choices.

That’s the aspect that the Court’s majority either doesn’t get or doesn’t care about. These alt-right slogans are speech, sure, but they are code words for the violent destruction of non-white Americans. White supremacists aren’t stupid. They know that they can’t just roll around saying obviously bigoted things — only the President of the United States can get away with that. His fanboys still have to use their GOP-issued dog whistles. So they wear a shirt or a hat to signal to others that they are on the same team… the team of ripping families apart like they are a litter of puppies and making the South rise again.

In dissent, Justice Sonia Sotomayor offered a compromise position. I think poll workers can be trusted to identify the brown shirts, and Roberts thinks that the ban is broad and vague. Sotomayor would have asked Minnesota to simply clarify its ban:

I disagree, however, with the Court’s decision to declare Minnesota’s political apparel ban unconstitutional on its face because, in its view, the ban is not “capable of reasoned application,” ante, at 19, when the Court has not first afforded the Minnesota state courts “‘a reasonable opportunity to pass upon’” and construe the statute, Babbitt v. Farm Workers, 442 U. S. 289, 308 (1979). I would certify this case to the Minnesota Supreme Court for a definitive interpretation of the political apparel ban under Minn. Stat. §211B.11(1) (Supp. 2017), which likely would obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today.

It’s unfortunate there’s no lefty equivalent to the MAGA hat. I would love to wear something that white people could take one look at and know that I’m not here for their BS and it’s dangerous to talk to me about it.

But there can be no lefty equivalent. Because people on the left don’t believe in ethnic cleansing or placing certain people’s children into concentration camps. And if we did believe in that, we certainly wouldn’t put it on a hat for everybody else to see.

Minnesota Voters Alliance v. Mansky [Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at He will resist.


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