Does Minnesota Statute Section 211B.11(1), which prohibits individuals from wearing “political badges, political buttons, or political insignia” in the polling place, violate the First Amendment?
In this case, the Supreme Court will decide whether Minnesota’s Statute section 211B.11(1) political-apparel ban at polling sites violates the First Amendment. Petitioners Minnesota Voters Alliance, et al. (“MVA”) contend that the statute jeopardizes the right of voters to peacefully express themselves. According to MVA, the statute’s vague use of the word “political” allows poll workers to arbitrarily discriminate against voters wearing anything arguably political. MVA contends, under a strict-scrutiny analysis, that the ban on speech is not narrowly tailored to the government’s interest in promoting voting decorum and that there is no government interest that justifies a ban on all political apparel. Respondents Joe Mansky, et al. (“Mansky”) counter that the statute and its application have only prohibited political apparel that, from the perspective of a reasonable person, is related to ballot issues on election day in order to ensure that Minnesotans have the right to vote freely, without undue influence. Mansky maintains that the non-public forum analysis is the proper test to determine the statute’s constitutionality, and that the statute is reasonable and viewpoint neutral in light of the government’s goal to have polling sites focus on voting. This case will clarify the scope of the right to vote versus the right to self-expression, as well as analyze the rights of individuals when participating in democratic deliberation.
Questions as Framed for the Court by the Parties
Is Minnesota Statute Section 211B.11(1), which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?
Section 211B.11, entitled “Election Day Prohibitions,” of the Minnesota Fair Campaign Practices Act regulates behavior “near polling places.” The third sentence of § 211B.11(1) on “[s]oliciting near polling places” declares that “[a] political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” The Office of Administrative Hearings may file a complaint against those who violate § 211B.11(1). Violators face civil penalties of up to $5,000 or criminal prosecution.
Before the 2010 election, Joe Mansky, an Election Manager in Minnesota, distributed an Election Day Policy that provided enforcement guidelines for § 211B.11(1). The Election Day Policy instructed election officials to ask individuals wearing a political item to cover or remove the item. The policy further directed election officials to permit individuals who refuse to remove or cover political material to vote, but to record their name, address, and a description of the “political” item for referral to “appropriate authorities.” The Election Day Policy also gave election officials the authority to decide what is “political” under § 211B.11(1), but it also provided some examples of “political” apparel. The examples included items containing names of political parties in Minnesota or a candidate at any election, items supporting or opposing a ballot question at any election, “[i]ssue oriented material designed to influence or impact voting,” and material that promotes a group with recognizable political views, such as the Tea Party and MoveOn.Org.
Before the 2010 election, the North Star Tea Party Patriots in Minnesota created and distributed t-shirts and hats with its logo and slogans like “Fiscal Responsibility, Limited Government, Free Markets,” “Liberty,” “Remember Me in November,” and “Don’t Tread on Me.” The North Star Tea Party Patriots also worked with Minnesota Voters Alliance (“MVA”) and Minnesota Majority to form Election Integrity Watch, a “grass roots effort to protect election integrity.” Election Integrity Watch also produced and disseminated buttons with the phrase “Please I.D. Me” written above an image of an eye, a toll-free number, and a website including the word “integrity.”
On election day, Andrew Cilek, the Executive Director of MVA, entered the polling place wearing a “Don’t Tread on Me” t-shirt and a “Please I.D. Me” button. Cilek waited “for over five hours” to vote after election judges twice “refused to allow [him] to vote.” Additionally, an election official told another voter to cover his Tea Party Patriot shirt or face prosecution.
MVA filed a complaint alleging that § 211B.11(1) and the Election Day Policy violated the First Amendment both on its face and as the policy was applied during the 2010 election, but the district court dismissed MVA’s complaint. On appeal, the Eighth Circuit upheld § 211B.11(1) but sent the case back to the district court to determine whether, after further fact development, the application of § 211B.11(1) was unconstitutional as applied on election day in 2010. MVA filed a petition for a writ of certiorari, but the Supreme Court declined to hear the case. Subsequently, both the district court and Eighth Circuit found that § 211B.11(1) was constitutional as applied on election day in 2010. MVA once again petitioned for the Supreme Court to hear the case, and the Supreme Court granted the petition on November 13, 2017.
IS SECTION 211B.11(1) OVERBROAD?
MVA contends that § 211B.11(1)’s content-based restriction on political speech is presumptively invalid because it can potentially penalize all protected political speech. MVA claims that the statute prohibits advocating or opposing a candidate; general references to political issues, beliefs, and associations; messages referring to “social, economic, immigration, healthcare, military, foreign affairs, or other political concerns;” political ideology, such as a shirt declaring, “Limited Government;” the names or symbols referring to organizations that are linked to politics; the name of a political party; and anything else that can be tied to politics. MVA contends that apparel plays a major role in the political speech and discourse of a democracy and, as a result, the statute’s restrictions are extraordinarily broad and unconstitutional. MVA further argues that the statute threatens other forms of speech that would not necessarily be defined as political because the definition of the word “political” under § 211B.11(1) is amorphous and left to polling officials’ discretion. MVA notes how a polling official could easily categorize messages that this Court has declared as nonpolitical, such as “Jesus Saves” or “Abortion is Murder,” as political speech. MVA also raises the possibility that polling officials could construe scientific messages, such as “Climate Change is Real,” as political statements. MVA cites examples where poll workers have prohibited people from wearing apparel that most people would consider as nonpolitical, such as when a poll worker prevented a citizen from wearing a shirt with the state of Alaska on it because the poll worker thought that shirt endorsed Sarah Palin. . MVA claims that the statute is overbroad, in part, because it is not limited to election day but extends to political apparel worn 46 days before the election in at least 87 absentee voter areas in a variety of public buildings.
Mansky asserts that § 211B.11 is clear and unbiased. According to Mansky, the statute’s text, structure, and purpose limit the application of what is “political” apparel, only applying to messages that influence Minnesotans choices in the polling place from the standpoint of a reasonable observer. Mansky maintains that although the statute does not explicitly define “political,” Minnesota officials have applied the term consistently with its ordinary dictionary definition—“of or relating to government, a government, or the conduct of governmental affairs.” . Mansky contends that the other activities that § 211B.11 regulates—displaying campaign materials and persuading voters to vote a certain way for a ballot question—all relate specifically to election-day issues on election day and the word “political,” in context, is similarly limited to such issues. . Mansky argues that this limited construction of “political” is confirmed by looking at other terms used in the statute. Mansky notes that the statute does define acting with a “political purpose”: “An act is done for ‘political purposes’ when the act is intended or done to influence, directly or indirectly, voting at a primary or other election.” Mansky reasons that since “political” modifies “purpose” in the definition, the scope of “political” is limited to messages related to voting. Mansky further contends that Minnesota officials have consistently applied the political-apparel ban within the statute’s context to only prohibit items that send a message about governmental affairs facing voters on a given election day. Election officials, Mansky argues, are told to decide whether attire is “political” by asking if a reasonable person would view the attire as portraying a political message. Mansky states that the political-apparel ban is limited to the interior of the polling place and does not impose criminal liability. Thus, Mansky maintains that the statute is neither limitless nor capricious.
WHAT SHOULD THE COURT DO IF SECTION 211B.11(1) IS OVERBROAD?
MVA argues that the Court should disallow the government’s attempt to narrow the statute because the statute’s plain language and construction provide no basis for limiting the ban to certain types of political material. MVA maintains that the Court should analyze the statute as a complete prohibition on political apparel because the government has repeatedly asserted the statute as such.
Mansky, on the other hand, contends that if the Court does find the statute overbroad, then it should ask the Minnesota Supreme Court to interpret it, for the sake of federalism and judicial restraint. Mansky suggests that this would allow the Court to honor the principle of first seeking an interpretation of a statute that will not violate the constitution rather than striking it down for overbreadth and would respect the overriding State interest in applying the statute.
WHAT TYPE OF ANALYSIS SHOULD THE COURT CONDUCT?
MVA contends that the Court should determine the statute’s constitutionality under a strict-scrutiny test, rather than a forum analysis, because the statute is content-based. MVA contends that the Court has granted political speech the First Amendment’s fullest protections. As a result, MVA asserts that restrictions on political speech must be “narrowly tailored to serve an overriding state interest.” MVA argues that uninjured plaintiffs can use the overbreadth doctrine on behalf of others in two situations: when a statute’s restriction on free speech oversteps its purpose and when the statute is not subject to a more limiting construction. MVA maintains that the ban is not limited to “express advocacy” of a candidate or ballot proposal but includes references to political and nonpolitical groups and philosophies—thus, triggering the overbreadth doctrine’s application.
MVA argues that regardless of the type of analysis (forum or strict) that the Court conducts, there is no government interest that justifies a ban on all political apparel. To support this assertion, MVA cites Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., which held that “wearing a T-shirt or button that contains a political message . . . is still protected speech even in a nonpublic forum.” MVA differentiates Burson v. Freeman, which allowed Tennessee to ban voter solicitation and campaign-literature distribution within one hundred feet of a polling place’s entrance on election day, as those restrictions dealt with “active” political solicitation and thus are not applicable to “passive” political communication at issue in this case. MVA classifies communicating political speech through apparel as passive political speech. MVA reasons that, since the Court has determined that passive political speech is non-disruptive, the fear that peacefully wearing apparel would cause disorder to the voting process is untenable. MVA observes that any disruption that has occurred at polling sites from people wearing t-shirts or other apparel was caused by polling officials trying to enforce the statute. MVA argues that the government’s interest in protecting voters from confusion and undue influence is not strong enough to justify the statute’s wide-reaching ban.
Mansky asserts that since the statute is reasonable and viewpoint-neutral, it is constitutional under a forum analysis. Mansky contends that MVA’s description of the Court’s First Amendment jurisprudence is misguided and rejects the assertion that the Court should conduct strict scrutiny analysis. Mansky states that this Court’s precedents, including Burson, have settled on forum analysis—a reasonableness test—for free-speech questions at nonpublic forums, such as polling places. Mansky argues that the Court has applied a reasonableness test to allow the government to control its polling places for the government’s intended use of voting—citing examples where the Court has upheld a prohibition on political speech at a military site and a prohibition on political advertising in public transportation. Mansky maintains the Court has held that the government can limit speech as long as it has reasonably determined that the speech in question compromises the purpose of the nonpublic forum. Even “passive” political speech, Mansky notes, can run counter to the government’s goal in a nonpublic forum. Mansky references cases where courts have held that political slogans in courtrooms could undermine the public’s perception of a politically neutral court and how an attorney’s wearing of political buttons could undermine the courtroom setting of impartiality and fairness.
Mansky contends that the overbreadth doctrine does not offer a new analysis to determine if a statute is constitutional. Instead, Mansky maintains that the overbreadth doctrine only alters the usual standing requirements and allows one to bring a claim for others even if one is not injured. Mansky argues that MVA’s interpretation of Jews for Jesus is also incorrect—instead of discarding the forum analysis, Mansky maintains the Court held that even when considering that airports are nonpublic forums, the ban on free speech was invalid under a reasonableness test. Mansky notes that to determine the constitutionally of a statute’s free-speech limitation, previous Court decisions have asked whether the restriction is reasonable in terms of the forum’s purpose. Mansky argues that this standard is not strict, in the sense that the statute’s limitation need not be the only or most reasonable limitation nor must the limitation be “narrowly tailored” to the forum’s goal. Mansky points out that if the forum was public, on the other hand, then a strict incompatibility between the speech in question and the public forum’s design would have to be identified—but that is not the case here, according to Mansky. Mansky claims that in this case the free-speech restriction must be consistent with the government’s legitimate interest for designing the nonpublic forum. Mansky states the statute is reasonably tailored to fit Minnesota’s interest in voting integrity: to ensure a peaceful and orderly polling place, to protect voters from confusion or unnecessary influence, and to preserve election-process integrity. . Mansky notes that the free-speech restriction is reasonable considering the nonpublic forum’s singular goal of allowing citizens to vote in a fair and secure manner because the restriction applies only to a limited place and time.
“POLITICAL” MEANING AND THE POSSIBILITY OF VIEWPOINT DISCRIMINATION
MVA argues that § 211B.11(1) invites viewpoint discrimination because poll workers have the discretion to define and apply the indefinite term “political” as used in the provision. Specifically, MVA claims that nearly any “issue, cause, or group” can be linked to politics, so poll workers can broaden the items covered by the provision as well as suppress messages with which they personally disagree. Additionally, the American Civil Liberties Union argues that the Election Day Policy’s examples of prohibited messages on both ends of the political spectrum fail to solve this problem, because poll workers are humans who cannot be expected to abandon their perspectives in applying the political apparel restrictions. Further, MVA contends that the ban prohibits voters from wearing items that only generally refer to political issues, which is too over-inclusive. Similarly, the Institute for Free Speech maintains that permitting poll workers to decide what is prohibited “political” attire allows poll workers to ban attire that the “wearer did not intend to carry a partisan message.”
Mansky counters that the term “political” has a “definite, ascertainable meaning.” The meaning of “political” is clear, according to Mansky, based on its plain meaning and the consistent application of the law by Minnesotan election officials. Moreover, Mansky argues that there is no evidence that Minnesotan poll workers discriminatorily enforced § 211B.11(1). Mansky also asserts there is little risk of viewpoint discrimination in the provision’s enforcement because Minnesota requires that polling places have “election judges from different political parties.” Additionally, Campaign Legal Center claims that eliminating the political-apparel prohibition would encourage discrimination because poll workers could challenge the credentials of those wearing the “wrong” apparel. Mansky argues that voters are free to challenge the provision if they believe polling officials have discriminatorily enforced it. Mansky also refutes that the ban reaches items that only generally refer to political issues—claiming that election officials, the state government, and courts have not applied such a broad construction of “political” apparel.
PROTECTING INDIVIDUAL RIGHTS VS. PROTECTING DEMOCRATIC DELIBERATION
In support of MVA, Goldwater Institute argues that the primary purpose of the First Amendment is to protect individual freedom and that any collective social benefits of free speech, such as democratic deliberation, is a “secondary consequence.” The Cato Institute likewise maintains that this individual First Amendment right includes the right to influence other voters. Additionally, the Cato Institute asserts that this right encompasses an individual’s right of self-expression through wearing political apparel. Furthermore, the Justice and Freedom Fund argues that, by instructing poll workers to record the names and addresses of those who violated the political apparel ban for forwarding to the “appropriate authorities,” Minnesota’s policy unconstitutionally forces voters to choose between the right to vote or the right to self-expression. Moreover, the Cato Institute claims that the ban does not prevent undue influence on voters because the ban itself exerts undue influence on voters by restricting their right to decide which political speech is most convincing. Goldwater Institute also argues that the political-apparel prohibition is more likely to instigate a disturbance at the polls than the political apparel itself because the policy encourages people to monitor and confront voters over their apparel, some of which could be only marginally political due to the ban’s breadth.
By contrast, the Brennan Center for Justice, supporting Mansky, contends that when self-expression and voting rights conflict, the right to vote supersedes the right to self-expression in the polling booth. Any burden on voters’ right to self-expression is minimal under Minnesota’s provision, Campaign Legal Center claims, because voters need only cover their political apparel for minutes while in the polling place. Furthermore, Mansky argues that the political-apparel prohibition is necessary to prevent people from inundating voters with their political views at the polls. Specifically, Mansky maintains that the law’s restrictions allow people to consider their choices and deliberate adequately before voting. Additionally, the Brennan Center for Justice contends that Minnesota’s political-apparel ban prevents voter confusion surrounding voter identification rules—which disproportionately affect voters of color—by prohibiting voters, like those in this case, from wearing “Please I.D. Me” buttons. Moreover, Mansky claims that permitting people to wear political apparel at the polls could incite verbal disputes or physical altercations because tensions between voters in the polling place may be high during a contentious election. National Association of Counties further argues that these altercations cause long lines at the polls, which deter future voting; undermine public confidence in election results; and disproportionately impact minority voters, those who must pay for childcare while voting, and those with physical disabilities that prevent them from waiting in long lines. Similarly, Mansky claims that the provision promotes public confidence in the election process, and therefore, election integrity. Mansky argues that, if election officials were permitted to wear political apparel, the public may view the poll workers, the polling place, and therefore, the election results, as biased towards a political viewpoint.
- Greg Stohr, Political T-Shirts at Polling Place Get U.S. Supreme Court Hearing, Bloomberg Politics (Nov. 13, 2017).
- Barbara L. Jones, U.S. Supreme Court Takes Up Minnesota Voting Case, Minnesota Lawyer (Nov. 15, 2017).