U.S. Supreme Court Considers Invalidating Ban on Politics-Themed Apparel in Polling Places
Minnesota Voters Alliance: "We have two people that were told they either had to remove their clothing or have their name and address taken down for potential prosecution in order to vote. We also have a number of people that didn't even try to wear apparel because they were afraid of enforcement…."
Justice Sotomayor: "…. Let's not forget who these people were and what they were wearing, 'Please ID me,' which for some people was a highly charged political message, which was found, on remand, was intended to intimidate people to leave the polling booth …."
— Minnesota Voters Alliance v. Mansky (U.S. Supreme Court, Oral Argument, Feb. 28, 2018)
By Catherine Park
Minnesota Voters Alliance v. Mansky began as a lawsuit filed by political activists (who are lawful voters), who wore "Please I.D. Me" buttons on Election Day on November 2, 2016. They were stopped by Minnesota election officials, asked to remove or cover up the buttons, and were questioned before being allowed to vote. The Government officials acted pursuant to Minnesota Statute Section 211B.11(1), which provides in relevant part, "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."
Minnesota Voters Alliance argued in its brief to the U.S. Supreme Court that Section 211B.11(1) is:
unconstitutional under the First Amendment overbreadth doctrine because it bans and penalizes substantial amounts of passive political speech. To state the statute's reach is to confirm its unconstitutionality. The law prohibits and potentially criminally punishes every variety of political speech on clothing, from that which simply names a political group, to messages supporting political causes, to ideological or party references, to messages about current issues.
On "overbreadth": Minnesota Voters Alliance asserts Section 211B.11 violates not only their rights but the rights of every voter in Minnesota—this type of constitutional challenge is a "facial challenge," which seeks to strike down the law, rather than asking the Court to invalidate the law merely as applied to the claimant (which is an "as applied" constitutional challenge).
The federal district court found that the activists intended to intimidate by wearing the "Please I.D. Me" buttons. As the Government (State of Minnesota) argued in its brief to the U.S. Supreme Court:
[T]he goal of the "Please I.D. Me" campaign was to convey to voters queueing in polling places the false impression that Minnesota law required photographic identification to vote:
"When you go to vote on November 2, wear your Election Integrity Watch button and show your photo ID when you sign-in to vote. While Minnesota does not require an individual to show an ID, let's act like it does. This simple act of showing an ID will likely result in a spontaneous reaction from others in line behind you to show their ID as well. Any person in line thinking about committing voter impersonation will likely be dissuaded from doing so. (Although polls show that over 80% of Minnesotans support requiring a photo ID to vote, this measure has been repeatedly block [sic] by leaders in the Minnesota state legislature.)"
The activists might claim they intended merely to stop voter fraud. However, as amicus curiae for the Government emphasized, the tactic could have deterred lawful voters:
[V]oters entering the polling place might mistakenly believe the people wearing the buttons were poll workers and that voters are required to have an ID to vote in Minnesota. One consequence would likely be that voters without an ID would leave and not cast a vote. See U.S. Gov't Accountability Office, Elections: Issues Related to State Voter Identification Laws 48 (Sept. 2014), permanent.cc/9849-TMAS (finding that voter ID laws depress turnout by two to three percentage points). Poll workers who notice this problem would be diverted from their other duties to explain that an ID is not needed in Minnesota, wasting time that would otherwise be spent aiding voters. This danger is not fanciful: the point of the "Please I.D. Me" button was to generate confusion and intimidation." Amicus Brief of National Association of Counties, et al., p. 17.
The activists were convicted under Section 211B.11(1) and didn't appeal their individual convictions. They abandoned their as-applied challenge to the statute and proceeded with the facial challenge only, exhorting that Section 211B.11(1) still must be struck down, because it bans every type of political speech that can be conveyed on apparel, even if innocuous. The activists maintain that "Minnesota's anti-deception, anti-fraud statute" and "anti-intimidation statute" are available for the prosecution of deceptive or intimidating conduct at the polls, and therefore Section 211B.11(1) is unnecessary.
The Government relies principally upon Burson v. Freeman, 504 U.S. 191 (1992), in which the Supreme Court upheld a Tennessee law prohibiting vote solicitation and display of campaign materials within 100 feet of an entrance to a polling place on election day. The Court held that the 100-foot area was a "public forum":
These forums include those places "which by long tradition or by government fiat have been devoted to assembly and debate," such as parks, streets, and sidewalks. Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)…. At the same time, however, expressive activity, even in a quintessential public forum, may interfere with other important activities for which the property is used. Accordingly, this Court has held that the government may regulate the time, place, and manner of expressive activity, so long as such restrictions are content neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication. United States v. Grace, 461 U.S. 171, 177 (1983); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Burson, supra, at 196-97. During oral argument, the Court questioned whether Section 211B.11(1) sweeps more broadly than the statute in Burson:
Justice Sotomayor: "So you're—you're telling us to overrule Burson? …. Burson basically said the opposite of what you're saying….. Directly and completely."
Minnesota Voters Alliance: "Well, as we read Burson, it didn't deal with the passive wearing of a—any kind of apparel, campaign or more general political apparel. It dealt with active campaigning and material used in conjunction with that conduct."
Justice Sotomayor: "That's the line you're drawing? Because someone puts something on instead of handing it around, that's the line you want us to draw?"
Minnesota Voters Alliance: "Well, that's part of the line. It's not—the passive nature of the material undercuts the state's interest in claiming that it's disruptive, …."
Not surprisingly, the Government argues that Burson is all the more controlling here because a polling place (in contrast to the 100-foot area around the entrance to a polling place) shouldn't be considered a public forum. The Government urges the Supreme Court to decide the case using "forum analysis," which the Court described in United States v. Kokinda, 497 U.S. 720 (1990):
Since Lehman [Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)], "the Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes…. Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. at 45. Regulation of speech on property that the Government has expressly dedicated to speech activity is also examined under strict scrutiny. Ibid. But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness. Id., at 46.
Perry described Government property that remains a non-public forum:
We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Greenburgh Civic Ass'n, 453 U.S. 114, 129 (1981). In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. Id., at 131, n.7. As we have stated on several occasions, "the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Id., at 129; Greer v. Spock, 424 U.S. 828, 836 (1976); Adderley v. Florida, 385 U.S. 39, 48 (1966).
Such is the character of a polling place, the Government urges. However, under Burson, the polling place referenced in Section 211B.11(1) could be held to be a public forum. Or, under Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985), the polling place could be viewed as a "limited public forum":
[A limited public forum] consists primarily of government property which the government has opened for use as a place for expressive activity for a limited amount of time, Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981), or for a limited class of speakers, Widmar v. Vincent, 454 U.S. 263 (1981), or for a limited number of topics, Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175, n.8 (1976). See Perry, 460 U.S. at 45-46, and n.7. In a limited public forum, it is not history or tradition, but the government's own acquiescence in the use of the property as a forum for expressive activity that tells us that such activity is compatible with the uses to which the place is normally put.
In both public and limited public forums, because at least some types of expressive activity obviously are compatible with the normal uses of the property, the Court has recognized that people generally have a First Amendment right to engage in expressive activity upon the property.
Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. at 817-18.
Minnesota Voters Alliance took no position on the forum question, but rely upon a U.S. Supreme Court case holding that a resolution of the Board of Airport Commissioners banning all First Amendment activities in the Central Terminal area of Los Angeles International Airport (LAX), was facially unconstitutional because of overbreadth. Board of Airport Comm'rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987). The Court further held that the forum question need not be decided:
The resolution therefore does not merely reach the activity of respondents at LAX; it prohibits even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some "First Amendment activit[y]." We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable government interest would justify such an absolute prohibition of speech. Id., at 574-75.
The Government asserts Section 211B.11(1)'s ban on political apparel isn't designed to suppress speech but to maintain peace, order, and decorum. The brief of amicus curiae National Association of Counties, et al., emphasized that wait times at the polls are increased with even small disruptions. In the case of "ballot selfies," "minor initial delays at the polling place can cascade into skyrocketing waiting times." Amicus Brief, Nat'l Ass'n of Counties, et al., p. 13. "Other estimates concluded that between 500,000 and 700,00 persons did not vote in [recent] elections due to long lines." Id., p. 15. However, the statistics on wait times could reflect badly on the Government, as well, since poll workers must confront voters wearing a questionable T-shirt, button, or insignia, and such confrontations could be time-consuming.
One of the strongest arguments for Minnesota Voters Alliance is the claim that Section 211B.11(1) gives polling officials unfettered "discretion to decide which messages are 'political' and thus, illegal in polling places, and which messages are non-political and permissible. (quotation omitted) The opportunity for abusive application of the law to disfavored viewpoints, and to protected non-political speech, is obvious and untenable [emphasis added]." Petitioner's Brief, p. 2.
The Government denies arbitrary enforcement, and asserts polling officials can easily distinguish which messages are "political" vs. not political. But the oral argument illustrated how difficult the determination could be, even for the County Attorney General who conducted oral argument, which suggests enforcement by polling officials on election day or primary day could be even more arbitrary and/or capricious:
Justice Alito: "How about a shirt with a rainbow flag? Would that be permitted?"
Government: "A shirt with a rainbow flag? No, it would—yes, it would be—it would be permitted unless there was—unless there was an issue on the ballot that … related somehow to—to gay rights."
Justice Alito: "How about a shirt that says 'Parkland Strong'?"
Government: "No, that would … be allowed…."
Justice Alito: "Even though gun control would very likely be an issue? …. I bet some candidate would raise an issue about gun control…. Well, what's the answer to this question? You're the reasonable person. Would that be allowed or would it not be allowed?"
Government: "…. I—I think—I think today that I—that would be—if—if that was in Minnesota, and it was "Parkland Strong," I—I would say that that would be allowed in, that there's not—"
Justice Alito: "Okay. How about an NRA shirt?"
Government: "An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication—and I think what you're getting at, Your Honor—"
Justice Alito: "How about a shirt with the text of the Second Amendment?"
Government: "Your Honor, I—I—I think that that could be viewed as political, that that—that would be—that would be—"
The Minnesota statute apparently sweeps more broadly than similar state laws proscribing various types of conduct and/or speech at polling places. Such laws are commonplace, as the Government discussed in its brief:
All 50 States and the District of Columbia have laws that limit speech to some extent within the polling place. Moreover, most jurisdictions (45 States and the District of Columbia) regulate speech on apparel inside polling places, to various degrees. Eleven States (including Minnesota) have enacted statutes that prohibit individuals from wearing "political" apparel in the poling place. An additional 16 States and the District of Columbia have enacted statutes that prohibit individuals from wearing "campaign" apparel in the polling place. Another 10 States have enacted statutes prohibiting some type of "electioneering" in polling places, a term that is usually understood to encompass the wearing of campaign apparel. And eight States permit only voters to wear campaign apparel in the polling place. Although States have varied in their approach, content-based regulations of speech in the polling place, including apparel, are the rule, rather than the exception. Respondent's Brief, p. 6.
However, the fact that many states have taken a more restrained approach suggests Section 211B.11(1) could be less sweeping while still preserving the Government's interests in peace, order, and decorum in polling places. Even the Government's interests in avoiding confusion and intimidation of voters could be achieved by drafting the statute to reach only those types of messages, which are hardly advanced by a clothing ban, as the oral argument suggested:
Justice Alito: "Let me ask you about one of the interests that you assert in your brief …. 'A voter could well feel confused or intimidated if she walked into a polling place and discovered that every other voter held the opposite point of view, on any number of controversial political issues related to electoral choices, as evidenced by the political messages displayed on other voters' apparel.' Do you think that's a compelling state interest? Do you think that's even a legitimate state interest?"
The enforcement hypotheticals discussed during oral argument were instructive, and several are reprinted here:
Justice Alito: "So somebody goes to the polling place and is wearing a shirt, doesn't say anything about a candidate or a ballot issue, but a particular election judge, one of these people picked by one of the two parties, says, oh, that's political, you—so now this person has a choice. The person can wear a bathrobe or some kind of coverup to go in and vote….
Government: "… [T]he enforcement of the statute is done primarily by election judges telling people to cover up the material. And that has been sufficient in Minnesota to deal with the problem. We have 100 years of elections in Minnesota."
Justice Kennedy: "Are those election officials inside the room? …. In other words, there's the voting booth and the table where you give your registration, and so do other voters see this going on, they see the shirt and they hear the argument, or is that in some different room?"
Government: "No, Your Honor, it happens—it happens right in the same room."
Justice Kennedy: "Well, it seems to me that's more disruptive than wearing the shirt."
Justice Kagan: "I assume that the real work of this statute is being done by the fact that people know about it and so people just don't wear these things for the most part. And you're always going to have cases where people don't know about it or maybe they want to challenge it, but those are going to be few and far between, and—and the real work is that people just approach the polling place in a different kind of way."
Government: "That's correct, Your Honor…. [T]he voting process is one that Minnesotans can be proud of. We often lead the nation in electoral turnout. We have elections that have a high degree of integrity. We've had multiple state-wide recounts that have not had any issues regarding whether or not somebody was—whether or not political material was—was in the polling place. This statute has worked. It's worked well for more than 100 years…."
Such statistics are offered by the Government as either circumstantial evidence of, or circular reasoning alleging that, the ban advances the government's interests in maintaining peace, order, and decorum in polling places. The Government also touted the high integrity of Minnesota's elections—which may have a connection to freedom from undue influence in polling places, although "undue influence" isn't defined in the statute, so the question remains what level of influence is "undue." The polling official makes the call.
Nothing wrong with circumstantial evidence, either. But the Government's discussion of recounts illustrates a problem. The only metric cited by the Government on recounts—whether political clothing was worn in the polling place—doesn't prove anything about recounts and would appear unconnected to recounts. A content-based restriction on speech, even in a non-public forum, must be reasonable. See, e.g., United States Postal Service v. Greenburgh Civic Ass'n, 453 U.S. 114, 131, n.7 (1981). A relevant metric on recounts—as well as "reasonableness"—could be whether keeping political clothing out of polling places accomplishes something besides keeping political clothing out of polling places, such as reducing the need for recounts, guaranteeing the accuracy of recounts, etc.
If the political clothing ban doesn't advance an interest other than banning political clothing, it isn't "reasonable." There can be no justification for forcing people to take actions that have no reasonable relation to the end being sought. Nor is there any justification for punishment if a person hasn't done anything wrong. Wearing a politics-themed shirt at a polling place, in and of itself, isn't wrong, nor is it right. It is a content-based restriction on speech and, generally, will be viewed with disfavor through a constitutional lens. See, e.g., Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) ("As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." (internal quotation marks omitted)).
Offensive messages on apparel rising to the level of "fighting words," which aren't protected by the First Amendment, probably could be banned in polling places because they could cause the very types of disruption that Section 211B.11(1) seeks to prevent. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Why not just ban "fighting words?"