MINNESOTA VOTERS ALLIANCE ET AL.
MANSKY ET AL.
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT No. 16-1435.
February 28, 2018
law prohibits individuals, including voters, from wearing a
"political badge, political button, or other political
insignia" inside a polling place on Election Day. Minn.
Stat. §211B.11(1) (Supp. 2017). This "political
apparel ban" covers articles of clothing and accessories
with political insignia upon them. State election judges have
the authority to decide whether a particular item falls
within the ban. Violators are subject to a civil penalty or
prosecution for a petty misdemeanor.
before the November 2010 election, petitioner Minnesota
Voters Alliance (MVA) and other plaintiffs challenged the ban
in Federal District Court on First Amendment grounds. In
response to the lawsuit, the State distributed an Election
Day Policy to election officials providing guidance on
enforcement of the ban. The Election Day Policy specified
examples of prohibited apparel to include items displaying
the name of a political party, items displaying the name of a
candidate, items supporting or opposing a ballot question,
"[i]ssue oriented material designed to influence or
impact voting, " and "[m]aterial promoting a group
with recognizable political views." App. to Pet. for
Cert. I-1 to 1-2. On Election Day, some voters ran into
trouble with the ban, including petitioner Andrew Cilek, who
allegedly was turned away from the polls for wearing a
"Please I. D. Me" button and a T-shirt bearing the
words "Don't Tread on Me" and a Tea Party
the other plaintiffs argued that the ban was unconstitutional
both on its face and as applied to their particular items of
apparel. The District Court granted the State's motion to
dismiss, and the Eighth Circuit affirmed the dismissal of the
facial challenge and remanded the case for further
proceedings on the as-applied challenge. The District Court
granted summary judgment to the State on the as-applied
challenge, and the Eighth Circuit affirmed. MVA, Cilek, and
petitioner Susan Jeffers (collectively MVA) petitioned for
review of their facial First Amendment claim only.
Minnesota's political apparel ban violates the Free
Speech Clause of the First Amendment. Pp. 7-19.
Because the political apparel ban applies only in a specific
location-the interior of a polling place-it implicates the
Court's " 'forum based' approach for
assessing restrictions that the government seeks to place on
the use of its property." International Soc. for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678. A
polling place in Minnesota qualifies as a nonpublic forum
under the Court's precedents. As such it may be subject
to content-based restrictions on speech, see, e.g.,
Cornelius v. NAACP Legal Defense & Ed. Fund,
Inc., 473 U.S. 788, 806-811, so long as the restrictions
are "reasonable and not an effort to suppress expression
merely because public officials oppose the speaker's
view, " Perry Ed. Assn. v. Perry Local
Educators' Assn., 460 U.S. 37, 46. Because the text
of the statute makes no distinction based on the
speaker's political persuasion, the question is whether
the apparel ban is "reasonable in light of the purpose
served by the forum": voting. Cornelius, 473
U.S., at 806. Pp. 7-9.
prohibition on political apparel serves a permissible
objective. In Burson v. Freeman, 504 U.S. 191, the
Court upheld a Tennessee law imposing a 100-foot zone around
polling place entrances in which no person could solicit
votes, distribute campaign materials, or "display . . .
campaign posters, signs or other campaign materials."
504 U.S., at 193-194 (plurality opinion). In finding that the
law withstood even strict scrutiny, the Burson
plurality-whose analysis was endorsed by Justice Scalia's
opinion concurring in the judgment-emphasized the problems of
fraud, voter intimidation, confusion, and general disorder
that had plagued polling places in the past. Against that
historical backdrop, the plurality and Justice Scalia upheld
Tennessee's determination that a campaign-free zone
outside the polls was necessary to secure the advantages of
the secret ballot and protect the right to vote.
argues that Burson considered only active
campaigning outside the polling place by campaign workers and
others trying to engage voters approaching the polls, while
Minnesota's ban prohibits passive self-expression by
voters themselves when voting. But although the plurality and
Justice Scalia in Burson did not expressly address
the application of the Tennessee law to apparel-or consider
the interior of the polling place as opposed to its
environs-the Tennessee law swept broadly to ban even the
plain "display" of a campaign-related message, and
the Burson Court upheld the law in full. The
plurality's conclusion that the State was warranted in
designating an area for the voters as "their own"
as they enter the polling place, id., at 210,
suggests an interest more significant, not less, within that
basis exists for rejecting Minnesota's determination that
some forms of campaign advocacy should be excluded from the
polling place in order to set it aside as "an island of
calm in which voters can peacefully contemplate their
choices." Brief for Respondents 43. Casting a vote is a
weighty civic act, and the State may reasonably decide that
the interior of the polling place should reflect the
distinction between voting and campaigning. And while the
Court has noted the "nondisruptive" nature of
expressive apparel in more mundane settings, see, e.g.,
Board of Airport Comm'rs of Los Angeles v. Jews for
Jesus, Inc., 482 U.S. 569, 576, those observations do
not speak to the unique context of a polling place on
Election Day. Pp. 9-12.
the line the State draws must be reasonable. The State
therefore must be able to articulate some sensible basis for
distinguishing what may come in from what must stay out. The
unmoored use of the term "political" in the
Minnesota law, combined with haphazard interpretations the
State has provided in official guidance and representations
to this Court, cause Minnesota's restriction to fail this
statute does not define the term "political, " a
word that can broadly encompass anything "of or relating
to government, a government, or the conduct of governmental
affairs." Webster's Third New International
Dictionary 1755. The State argues that the apparel ban should
be interpreted more narrowly to proscribe "only words
and symbols that an objectively reasonable observer would
perceive as conveying a message about the electoral choices
at issue in [the] polling place." Brief for Respondents
13. At the same time, the State argues that the category of
"political" apparel is not limited to campaign
Court considers a State's authoritative constructions in
interpreting a state law. But far from clarifying the
indeterminate scope of the provision, Minnesota's
"electoral choices" construction introduces
confusing line-drawing problems. For specific examples of
what messages are banned under that standard, the State
points to the Election Day Policy. The first three categories
of prohibited items in the Policy are clear. But the next
category-"issue oriented material designed to influence
or impact voting"-raises more questions than it answers.
The State takes the position that any subject on which a
political candidate or party has taken a stance qualifies as
an "issue" within the meaning of that category.
Such a rule-whose fair enforcement requires an election judge
to maintain a mental index of the platforms and positions of
every candidate and party on the ballot-is not reasonable.
next broad category in the Election Day Policy-any item
"promoting a group with recognizable political
views"-makes matters worse. The State does not confine
that category to groups that have endorsed a candidate or
taken a position on a ballot question. As a result, any
number of associations, educational institutions, businesses,
and religious organizations could have an opinion on an
"issue confronting voters." The State represents
that the ban is limited to apparel promoting groups with
"well-known" political positions. But that
requirement only increases the potential for erratic
application, as its enforcement may turn in significant part
on the background knowledge of the particular election judge
"self-evident" that an indeterminate prohibition
carries with it "[t]he opportunity for abuse, especially
where [it] has received a virtually open-ended
interpretation." Jews for Jesus, 482 U.S., at
576. The discretion election judges exercise in enforcing the
ban must be guided by objective, workable standards. Without
them, an election judge's own politics may shape his
views on what counts as "political." And if voters
experience or witness episodes of unfair or inconsistent
enforcement of the ban, the State's interest in
maintaining a polling place free of distraction and
disruption would be undermined by the very measure intended
to further it. Thus, if a State wishes to set its polling
places apart as areas free of partisan discord, it must
employ a more discernible approach than the one offered by
Minnesota here. Pp. 12-19.
F.3d 749, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which
KENNEDY, Thomas, Ginsburg, Alito, Kagan, and Gorsuch, JJ.,
joined. So-TOMAYOR, J., filed a dissenting opinion, in which
BREYER, J., joined.
Roberts Chief Justice.
Minnesota law, voters may not wear a political badge,
political button, or anything bearing political insignia
inside a polling place on Election Day. The question
presented is whether this ban violates the Free Speech Clause
of the First Amendment.
Americans going to their polling places on Election Day
expect to wait in a line, briefly interact with an election
official, enter a private voting booth, and cast an anonymous
ballot. Little about this ritual would have been familiar to
a voter in the mid-to-late nineteenth century. For one thing,
voters typically deposited privately prepared ballots at the
polls instead of completing official ballots on-site. These
pre-made ballots often took the form of "party
tickets"-printed slates of candidate selections, often
distinctive in appearance, that political parties distributed
to their supporters and pressed upon others around the polls.
See E. Evans, A History of the Australian Ballot System in
the United States 6-11 (1917) (Evans); R. Bensel, The
American Ballot Box in the Mid-Nineteenth Century 14-15
physical arrangement confronting the voter was also
different. The polling place often consisted simply of a
"voting window" through which the voter would hand
his ballot to an election official situated in a separate
room with the ballot box. Bensel 11, 13; see, e.g.,
C. Rowell, Digest of Contested-Election Cases in the
Fifty-First Congress 224 (1891) (report of Rep. Lacey)
(considering whether "the ability to reach the window
and actually tender the ticket to the [election] judges"
is "essential in all cases to constitute a good offer to
vote"); Holzer, Election Day 1860, Smithsonian Magazine
(Nov. 2008), pp. 46, 52 (describing the interior voting
window on the third floor of the Springfield, Illinois
courthouse where Abraham Lincoln voted). As a result of this
arrangement, "the actual act of voting was usually
performed in the open, " frequently within view of
interested onlookers. Rusk, The Effect of the Australian
Ballot Reform on Split Ticket Voting: 1876-1908, Am. Pol.
Sci. Rev. 1220, 1221 (1970) (Rusk); see Evans 11-13.
documented in Burson v. Freeman, 504 U.S. 191
(1992), "[a]pproaching the polling place under this
system was akin to entering an open auction place."
Id., at 202 (plurality opinion). The room containing
the ballot boxes was "usually quiet and orderly, "
but "[t]he public space outside the window . . . was
chaotic." Bensel 13. Electioneering of all kinds was
permitted. See id., at 13, 16-17; R. Dinkin,
Election Day: A Documentary History 19 (2002). Crowds would
gather to heckle and harass voters who appeared to be
supporting the other side. Indeed, "[u]nder the informal
conventions of the period, election etiquette required only
that a 'man of ordinary courage' be able to make his
way to the voting window." Bensel 20-21. "In short,
these early elections were not a very pleasant spectacle for
those who believed in democratic government."
Burson, 504 U.S., at 202 (plurality opinion)
(internal quotation marks omitted).
late nineteenth century, States began implementing reforms to
address these vulnerabilities and improve the reliability of
elections. Between 1888 and 1896, nearly every State adopted
the secret ballot. See id., at 203-205. Because
voters now needed to mark their state-printed ballots on-site
and in secret, voting moved into a sequestered space where
the voters could "deliberate and make a decision in . .
. privacy." Rusk 1221; see Evans 35; 1889 Minn. Stat.
ch. 3, §§27-28, p. 21 (regulating, as part of
Minnesota's secret ballot law, the arrangement of voting
compartments inside the polling place). In addition, States
enacted "viewpoint-neutral restrictions on election-day
speech" in the immediate vicinity of the polls.
Burson, 504 U.S., at 214-215 (Scalia, J., concurring
in judgment) (by 1900, 34 of 45 States had such
restrictions). Today, all 50 States and the District of
Columbia have laws curbing various forms of speech in and
around polling places on Election Day.
such law contains three prohibitions, only one of which is
challenged here. See Minn. Stat. §21 IB. 11(1) (Supp.
2017). The first sentence of §21 IB. 11(1) forbids any
person to "display campaign material, post signs, ask,
solicit, or in any manner try to induce or persuade a voter
within a polling place or within 100 feet of the building in
which a polling place is situated" to "vote for or
refrain from voting for a candidate or ballot question."
The second sentence prohibits the distribution of
"political badges, political buttons, or other political
insignia to be worn at or about the polling place." The
third sentence-the "political apparel ban"-states
that a "political badge, political button, or other
political insignia may not be worn at or about the polling
place." Versions of all three prohibitions have been on
the books in Minnesota for over a century. See 1893 Minn.
Laws ch. 4, §108, pp. 51-52; 1912 Minn. Laws, 1st Spec.
Sess., ch. 3, p. 24; 1988 Minn. Laws ch. 578, Art. 3,
§11, p. 594 (reen-acting the prohibitions as part of
§21 IB. 11).
is no dispute that the political apparel ban applies only
within the polling place, and covers articles of
clothing and accessories with "political insignia"
upon them. Minnesota election judges-temporary government
employees working the polls on Election Day-have the
authority to decide whether a particular item falls within
the ban. App. to Pet. for Cert. 1-1. If a voter shows up
wearing a prohibited item, the election judge is to ask the
individual to conceal or remove it. Id., at 1-2. If
the individual refuses, the election judge must allow him to
vote, while making clear that the incident "will be
recorded and referred to appropriate authorities."
Ibid. Violators are subject to an administrative
process before the Minnesota Office of Administrative
Hearings, which, upon finding a violation, may issue a
reprimand or impose a civil penalty. Minn. Stat.
§§211B.32, 211B.35(2) (2014). That administrative
body may also refer the complaint to the county attorney for
prosecution as a petty misdemeanor; the maximum penalty is a
$300 fine. §§21 IB. 11(4) (Supp. 2017), 211B.35(2)
(2014), 609.02(4a) (2016).
Minnesota Voters Alliance (MVA) is a nonprofit organization
that "seeks better government through election
reforms." Pet. for Cert. 5. Petitioner Andrew Cilek is a
registered voter in Hennepin County and the executive
director of MVA; petitioner Susan Jeffers served in 2010 as a
Ramsey County election judge. Five days before the November
2010 election, MVA, Jeffers, and other likeminded groups and
individuals filed a lawsuit in Federal District Court
challenging the political apparel ban on First Amendment
grounds. The groups-calling themselves "Election
Integrity Watch" (EIW)-planned to have supporters wear
buttons to the polls printed with the words "Please I.
D. Me, " a picture of an eye, and a telephone number and
web address for EIW. (Minnesota law does not require
individuals to show identification to vote.) One of the
individual plaintiffs also planned to wear a "Tea Party
Patriots" shirt. The District Court denied the
plaintiffs' request for a temporary restraining order and
preliminary injunction and allowed the apparel ban to remain
in effect for the upcoming election.
response to the lawsuit, officials for Hennepin and Ramsey
Counties distributed to election judges an "Election Day
Policy, " providing guidance on the enforcement of the
political apparel ban. The Minnesota Secretary of State also
distributed the Policy to election officials throughout the
State. The Policy specified that examples of apparel falling
within the ban "include, but are not limited to":
" • Any item including the name of a political
party in Minnesota, such as the Republican,
[Democratic-Farmer-Labor], Independence, Green ...