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Minnesota Voters Alliance v. Mansky

United States Supreme Court

June 14, 2018



          Argued February 28, 2018

         Minnesota 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.

         Days 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 Patriots logo.

         MVA and 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.

         Held: Minnesota's political apparel ban violates the Free Speech Clause of the First Amendment. Pp. 7-19.

         (a) 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.

         (b)Minnesota's 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.

         MVA 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 place.

         No 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.

         (c) But 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 test.

         The 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 apparel.

         The 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.

         The 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 applying it.

         It is "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.

         849 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.

         Under 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.



         Today, 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 (2004) (Bensel).

         The 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.

         As 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).

         By the 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.

         Minnesota's 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).

         There 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).


         Petitioner 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.

         In 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 ...

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