Court Upholds Banning Political Insignia on Clothing at Polling Places

By William Vogeler, Esq. on March 01, 2017 | Last updated on March 21, 2019

If at first you don't succeed, act like it never happened in the first place.

That's my personal takeaway from a case about whether Tea Party representatives could sue election officials for making them remove political insignia from their clothing at polling places. But you have to dig through the opinion to find that nugget to take away.

The U.S. Eighth Circuit Court of Appeals said the Tea Party could not state a claim because polling places are not public forums and the "no political insignia" rule was a reasonable content-neutral regulation. That's the legal gist of the decision.

My personal takeaway is about how the Tea Party members tried to get around the law as applied to their case. It makes the drudgery of case law amusing, if not memorable.

No Political Insignia

The case arose after plaintiffs challenged a Minnesota statute prohibiting anyone from wearing a "political badge, political button, or other political insignia ... at or about the polling place on primary or election day."

To help determine which materials were political, Minnesota election officials distributed an Election Day Policy with examples including: "Issue oriented material designed to influence or impact voting" and "Material promoting a group with recognizable political view."

A trial judge dismissed their First Amendment claims on a summary judgment motion, finding the law was constitutional on its face. The court of appeals gave the plaintiffs a chance on remand to show facts that banning Tea Party apparel was not reasonable as applied.

The trial court dismissed again, and the plaintiffs returned to the Eighth Circuit.

Not a Political Party

This time the plaintiffs argued that the statute was not reasonable because "the Tea Party is not a political party."

Of course, there is more to the quote and the opinion. But sometimes you have to stop and wonder at creative moments in life, like stopping to watch a rainbow before it disappears.

That's how the plaintiffs thought they could get around the statutory ban on political insignia: "The Tea Party is not a political party."

So it's more like a "tea party," and its insignia are about herbal issues not politics?

Political speech? Never happened.

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