Good Example for Minnesota Political Apparel Case at SCOTUS: 2008 Dispute over Whether Toilet “Plungers Represent Support for a Political Candidate”

One of the issues which came out at the oral argument in Minnesota Voters Alliance v,. Mansky  is whether election officials can make a good faith effort to determine whether something is political and needs to be excluded from the polling place.

MR. ROGAN: So, Your Honor, the — I think the — the answer is that it has two components to it. It has to be understood as relating to electoral choices and it has to be well-known. So many of the examples that — that you talked about simply wouldn’t be well-known. It’s — it’s a reasonable observer sitting in the polling place on Election Day, after there’s been a campaign, after there’s been the issues that have been raised that are relevant to the election, deciding whether or not they believe that it’s reasonable to understand the message being -­

JUSTICE ALITO: Yeah. Well, that makes it worse, that it has to be — well, it’s not only does it have to be a political message, but it has to be well-known. What -­ what is well-known?

MR. ROGAN: Well, Your Honor, the political has a — has a plain meaning in our statute based on that it — it’s influencing elections. What I — all that I’m describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that’s going to be reasonably understood by voters in the polling place.

A reader recalled a dispute over 1,000 toilet plungers distributed to bring to Texas polling places could be support for John McCain in the 2008 presidential campaign (thanks to support by “Joe the Plumber.”)

The Obama campaign issued a memo taking the position that “plungers represent support for a political candidate” and bringing them to the polling place was electioneering.


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