In an important free speech decision issued on June 14th the US Supreme Court invalidated the application of a Minnesota law banning political speech through the wearing of advocacy paraphernalia inside a polling station. In a 7-2 decision the Supreme Court struck down the State of Minnesota's law barring "political apparel" from a polling place on Election Day. In so doing, the Court affirmed that States (and local governments) may exclude certain forms of advocacy, including passive advocacy like wearing apparel, from polling places in order to provide an island of calm in which voters can peacefully contemplate their choices.
Minnesota, like every other State, has laws that restrict speech in its polling places on Election Day. Under Minnesota law, voters are prohibited from wearing a political badge, political button, or anything bearing a political insignia inside a polling place on Election Day. Minnesota had provided guidance on the political apparel ban to its election judges that stated the ban included any political apparel and not just items bearing the name of a political party or candidate, or that supports or opposes a ballot question. As applied by Minnesota election officials, persons could not wear items that promote an issue on which a candidate has taken a position, or material promoting a group with a recognizable political view (such as the Tea Party or MoveOn).
However, to restrict speech in a nonpublic forum, government must still draw a reasonable line. The Court explained that perfect clarity and precise guidance have never been required of regulations that restrict expressive activity. Consquently, the Minnesota law was ruled to have gone too far by prohibiting even protected forms of speech that did not specifically advocate for or against candidates or measures actually on the ballot.
New Hampshire has a similar statute related to distributing campaign materials at polling places. RSA 659:43, I prohibits any person from distributing, wearing or posting at a polling place any campaign material in the form of a poster, card, handbill, placard, picture, pin, sticker, circular or article of clothing which is intended to influence the action of the voter within the building where the election is being held.
In order to comply with the U.S. Supreme Court’s decision in Mansky it is recommended that the RSA 659:43, I be interpreted to only prohibit the wearing of an item of political paraphernalia that advocates for or against any candidate or meaure on the ballot for that election.