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Free Speech

Ban on "Political" Clothing in Polling Places Is Unconstitutionally "Unreasonable"

But a more precise ban on clothing in polling places (which the Court treats as "nonpublic fora") that mentions candidates, parties, or ballot measures may be constitutional.


In Minnesota Voters Alliance v. Mansky, the Supreme Court today struck down a ban on people, including ordinary voters, wearing any "political badge, political button, or other political insignia" in a polling place. Here's the Court's reasoning:

[1.] The inside of a polling place is a "nonpublic forum"—properly owned (or, for some polling places, temporarily borrowed for the day) and controlled by the government. In most places, such as on private property or on "traditional public fora" such as streets and sidewalks and parks, the government may not impose content-based restrictions (unless the restrictions fall within a few narrow exceptions, such as for "fighting words" or "true threats" or libel). But in nonpublic fora, content-based restrictions are fine if they are (a) viewpoint-neutral and (b) reasonable.

[2.] Content-based restrictions on speech in polling places may well be reasonable, because they are aimed at making voting "an island of calm in which voters can peacefully contemplate their choices," which helps keep voting as "a weighty civic act," "a time for choosing, not campaigning." The Court spoke favorably of clear restrictions on speech that mentions parties or candidates (or ballot measures).

[3.] But this ban, which isn't limited to speech that mentions, say, political parties or candidates, is not reasonable:

[T]he statute prohibits wearing a "political badge, political button, or other political insignia." It does not define the term "political." And the word can be expansive. It can encompass anything "of or relating to government, a government, or the conduct of governmental affairs," Webster's Third New International Dictionary 1755 (2002), or anything "[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state," American Heritage Dictionary 1401 (3d ed. 1996). Under a literal reading of those definitions, a button or T-shirt merely imploring others to "Vote!" could qualify.

The State argues that the apparel ban should not be read so broadly. According to the State, the statute does not prohibit "any conceivably 'political' message" or cover "all 'political' speech, broadly construed." Instead, the State interprets the ban 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."

At the same time, the State argues that the category of "political" apparel is not limited to campaign apparel. After all, the reference to "campaign material" in the first sentence of the statute—describing what one may not "display" in the buffer zone as well as inside the polling place—implies that the distinct term "political" should be understood to cover a broader class of items. As the State's counsel explained to the Court, Minnesota's law "expand[s] the scope of what is prohibited from campaign speech to additional political speech." …

[F]ar from clarifying the indeterminate scope of the political apparel provision, the State's "electoral choices" construction introduces confusing line-drawing problems. For specific examples of what is banned under its standard, the State points to the 2010 Election Day Policy—which it continues to hold out as authoritative guidance regarding implementation of the statute. The first three examples in the Policy are clear enough: items displaying the name of a political party, items displaying the name of a candidate, and items demonstrating "support of or opposition to a ballot question."

But the next example—"[i]ssue oriented material designed to influence or impact voting"—raises more questions than it answers. What qualifies as an "issue"? The answer, as far as we can tell from the State's briefing and argument, is any subject on which a political candidate or party has taken a stance. For instance, the Election Day Policy specifically notes that the "Please I. D. Me" buttons are prohibited. But a voter identification requirement was not on the ballot in 2010, so a Minnesotan would have had no explicit "electoral choice" to make in that respect. The buttons were nonetheless covered, the State tells us, because the Republican candidates for Governor and Secretary of State had staked out positions on whether photo identification should be required.

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. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import. Would a "Support Our Troops" shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a "#MeToo" shirt, referencing the movement to increase awareness of sexual harassment and assault? At oral argument, the State indicated that the ban would cover such an item if a candidate had "brought up" the topic.

The next broad category in the Election Day Policy—any item "promoting a group with recognizable political views"—makes matters worse. The State construes the category as limited to groups with "views" about "the issues confronting voters in a given election." The State does not, however, confine that category to groups that have endorsed a candidate or taken a position on a ballot question.

Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an "issue[] confronting voters in a given election." For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry's all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned?

Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation.6 Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform? The State emphasizes that the ban covers only apparel promoting groups whose political positions are sufficiently "well-known." But that requirement, if anything, only increases the potential for erratic application. Well known by whom? The State tells us the lodestar is the "typical observer" of the item. But that measure may turn in significant part on the background knowledge and media consumption of the particular election judge applying it.

The State's "electoral choices" standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State's top lawyers struggle to solve. A shirt declaring "All Lives Matter," we are told, could be "perceived" as political. How about a shirt bearing the name of the National Rifle Association? Definitely out. That said, a shirt displaying a rainbow flag could be worn "unless there was an issue on the ballot" that "related somehow … to gay rights."

A shirt simply displaying the text of the Second Amendment? Prohibited. But a shirt with the text of the First Amendment? "It would be allowed."

"[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." But the State's difficulties with its restriction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the whole point of the exercise is to prohibit the expression of political views.

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." Election judges "have the authority to decide what is political" when screening individuals at the entrance to the polls. We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion 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.

[4.] Justice Sotomayor, joined by Justice Breyer, dissented, arguing that the Court should have certified the case to the Minnesota Supreme Court, to give it an opportunity to issue a clarifying interpretation of the statute "which likely would obviate the hypothetical line-drawing problems that form the basis of the Court's decision today." (For the Court's response to this point, and the dissent's rebuttal, see the opinion; I omit here because it's too tangential to the free speech question.)

[5.] A broader takeaway for future cases: The Court has in recent years somewhat cut back on the void-for-vagueness doctrine, by insisting that courts (even in free speech cases, where the doctrine is stronger than in others) should generally "consider whether a statute is vague as applied to the particular facts at issue, for '[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'" If the law clearly applies to your speech, you can't challenge it as vague even if it's vague as applied to a large zone of other speech. And this means that laws generally can't be challenged as vague on their face (the way they can be challenged as overbroad), unless they are so vague as to be generally indeterminate.

But vagueness arguments can still be made within other First Amendment doctrines, and can thus prevail in facial challenges (such as this one). We saw that in Reno v. ACLU (1997), where the vagueness of terms in the Communications Decency Act led the Court to conclude that the Act was unconstitutionally overbroad. We see that here, where the vagueness led the Court to conclude that the law was unreasonable. The same logic could lead to a conclusion that the law is not narrowly tailored to a government interest, and thus fails intermediate or strict scrutiny in the many cases where such scrutiny is applied. Expect more such challenges to vague statutory terms in First Amendment cases.

NEXT: The Case Against Qualified Immunity, Part IV

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  1. Burson v. Freeman was wrongly decided. None of these electioneering laws that prohibit anything other than intimidation are constitutional. It's absurd to argue that someone speaking out in favor of something within 100 feet of the polls is going to unduly influence anyone.

    1. If the purpose of speech is to have an influence on others, and political speech, to have an influence on others with respect to government composition and operation, then the word "undue" does not belong in any such analysis.

      There can be no undue political influence from conversation and expression, because that's what it is protected so much for.

      1. Right, exactly. Threats or intimidating behavior are not protected whether they occur within 100 feet of a polling place or not. The idea that prior restraint is justified simply because it's near a poll is silly.

    2. The 100 feet buffer zone is more complicated than various other laws involving speech inside a polling place. Inside the polling place, it's government property, and time/place/manner rules are standard.

      Anyway, the idea that no one "speaking out in favor" is going to intimidate is a bit exaggerated given historical practice alone. We are left to determine what "unduly" means -- if noisy often one-sided protests right outside the polls lead some average person to decide "heck with this ... I'm not going thru this just to vote" -- we can say it is not "unduly" doing anything. But, it's fair and reasonable to disagree.

  2. As an election site manager for my county, I applaud this decision. I hated enforcing my state's law on this, because of the rancor it caused, and both sides would get upset in equal measure, the Bernie Bros when I told them that they had to take off the button and the Trump guys in the MAGA hats. Not that everyone pitched a fit, but that most acted like I was "the man" out to stifle their free speech. Now these guys and gals can shuffle in and vote and be gone, and if another voter get upset at a MAGA hat or a gay pride shirt, then that's their problem.

    1. If both sides got upset in equal measure, that sounds like an excellent law to me.

      1. While I can appreciate the sentiment, it's just better that it's gone.

      2. It sounds like a law which serves no purpose.

        1. Some people like those types of laws.

          1. Unfortunately, most those people end up getting elected.

      3. We'll shoot 5% of Democrats and 5% of Republicans. Equally pissed off, I imagine. Excellent?

        1. In a typical busy election day (presidential or mid-term), this only occurs maybe 3-4 times total, out of a thousand or so people coming into a busy polling place. So yea, not very often admittedly, but often enough that it would be a problem.

          1. 3 or four polling places have 5% of their visitors murdered?

        2. Make it 50%, and you've got a deal.

      4. But anyway, as the case made clear, both sides obviously weren't equally upset about the law as applied in Minnesota

    2. The decision at least for now leaves open banning certain apparel if it is done in a clearer way.

  3. Justice Alito's questions on this at oral argument, and the pathetic response of the MN lawyer defending the case, really doomed it, as seen by their extensive quoting in the decision.

    1. The laughable distinction the lawyer made between the First Amendment (allowed) and 2nd Amendment (not allowed) probably alone was sufficient.

      1. This alone should demonstrate that there is bias in the ban process, and that it should not stand.

    2. And, Breyer was right to note that if we wanted to, we can play that "what if" game regarding any number of things, and at some point, yes, there is going to be some discretion. It is a matter of line drawing.

  4. What do we make of the majority's footnote 7 responding to the dissent where it says:

    "The decision to certify, however, "rests in the sound discretion of the federal court." Expressions Hair Design v. Schneiderman, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., concurring in judgment) (slip op., at 8). We decline to exercise that discretion in this instance."

    It looks like Roberts is suggesting that Sotomayor previously agreed that there is broad (or total) discretion to not certify. Yet the quoted language was originally from Lehman Brothers v. Schein, quoted by Sotomayor in the course of stressing the usefulness of certification. It seems strange to pull the quote out-of-context in that way.

    Especially when in the Expressions concurrence, Sotomayor concludes:

    "Given the significant benefits certification offered and given the absence of persuasive downsides identified by the Second Circuit, the decision not to certify was an abuse of discretion."

    It seems a little odd to pull a quote-of-a-quote out-of-context where Sotomayor was being consistent in her view of the usefulness, and sometimes necessity, of certification.

    It's obvious that Sotomayor doesn't deny there isn't generally discretion, so I just wonder what Roberts was aiming at there.

  5. It appears that Justice Sotomayor is more concerned with certifying laws than with determining if they abide by the Constitution. That may work better at the lower levels but she is on the SCOTUS now.

    1. That seems like an odd distinction -- she wants to ask the Minnesota Supreme Court what the Minnesota law means, precisely so the Court can better determine whether the law abides by the Constitution. Indeed, the Minnesota Supreme Court is the ultimate interpreter of Minnesota law in our federal system, and can thus issue an authoritative construction that would bind Minnesota officials, and that the U.S. Supreme Court could then evaluate.

      One can debate whether such certification makes sense in this case, as the Justices do; but I don't think it's sound to cast the issue as certifying the question of what the law means vs. determining whether it's constitutional.

  6. Given a facial challenge to a law that is unconstitutional under one construction but constitutional under another, a federal court can do one of two things:

    1. Strike the law down as unconstitutional, either for vagueness or the underlying constitutional issue)

    2. Certify a question to the state courts to construe/clarify the law and potentially cure both the vagueness and other constitutional issue(s).

    When should courts do which? Right now, there doesn't seem to be any guidance as to when to take which path. It can take either even in First Anendmebt cases.

    If it's all a matter of discretion, there is great potential for judges to use the saving path for laws they like and the strike-it-down path for laws they don't like.

    The Supreme Court needs to resolve this by setting standards for when a federal court, themselves included, should take which path.

    1. Agreed. My preference would be for the simple strike-all path because it should be the Legislature's job to cure the vagueness, not the Court's.

  7. I'm intrigued by the logic in the dissent that there's little to worry about because the provision in question has never been interpreted or applied in an unreasonable manner - but that's just because no one has ever been prevented from voting if they didn't remove their allegedly political message or were ever referred for "prosecution" for failure to remove the message.

    This suggests to me it's _more_ important to address the constitutionality of the provision as it surely has a chilling effect. The government is apparently unwilling or uninterested in enforcing this law to the point where it can be tested yet voters' First Amendment rights may be being violated in every election when they are told to remove/cover some message. The fact that some voters do comply with election officials demands due to an implied threat of consequences of not following a (potentially) unconstitutional law and the provision evades review because the government never actually enforces the law is quite concerning.

    Suppose there were a law forbidding wearing shirts showing an aborted fetus in public. When police noticed people wearing such shirts, they were approached and informed the that their shirt was illegal and they must cover or remove it. If they refused the police demanded their name and address, but no one was ever actually prosecuted under the law. Surely the law would be unconstitutional due to its chilling effect on a significant portion of the population.

  8. A number of intermediate positions are possible. Perhaps the simplest is to reverse the burden of proof. Instead of presuming qualified immunity unless the plaintiffs can come up with cases specifically finding the defendants behavior unlawful, qualified immunity wouldn't apply unless the defendants can can come up with prior cases specifically finding their behavior lawful. That way, qualified immunity would continue to apply to conduct that was clearly established as legal, protecting the police from explicit changes in the law. But in the ordinary case where existing law is applied to new facts, the police would be liable.

  9. Yet another in a series of cowardly, tentative, half-assed decisions by the Supreme Court, with yet another thoroughly idiotic dissent by Sotomayor for the cherry on the top of this sh#t sundae. What a dissapointing term for the Supreme Court. I used to be proud of the framed certificate in my office attesting to the fact that I was admitted to practice before a once august tribunal. I may have to take that certificate down in embarrassment and hide it in the closet. It's so sad when not a single Supreme Court Justice seems to take the First Amendment seriously; it's downright baffling when they think that making a polling place a "safe space" for fragile flowers can EVER be more important than the freedom of peaceful expression.

    1. I sense that this term was the Court's none-too-subtle way of saying, "you don't like the results, you don't file the petitions."

      Are they still permitting persons who graduated from law school five minutes ago to determine their caseloads? Is this a good idea? Was it ever?

  10. "But a more precise ban on clothing in polling places (which the Court treats as "nonpublic fora") that mentions candidates, parties, or ballot measures may be constitutional."

    Considering what most people look like, I truly hope that clothing in polling places is not banned...

  11. In my advanced state, we don't even have polling places anymore. You can be in the nude and vote, because you are just filling out a ballot and mailing it in. You don't even need a stamp.

    Of course, issues can come up in this very blue state with motor voter and an extreme disregard for insuring that voters actually are who they represent themselves to be and are legally qualified to vote.

    A cynic might say that civil war looms in a democracy when there is absolutely no assurance that voter fraud does not take place because Democrats have moved heaven and Earth to make it economically and practically impossible to investigate voter fraud, so of course you can't "prove" it exists.

    So there is no alternative but to have a revolution and maybe start over with a system like in the world's largest democracy, India, where hundreds of millions of voters appear at polling places and get iris scanned. Very cheap, very efficient.

    Of course, you still have to purge the voter rolls and have honest computer geeks, so maybe civil war is not avoidable after all.

  12. Would it be too much to ask that the courts clean up their language in addressing these forum concerns? If the government exists by, for and of the public, then describing a place of government activity as a 'nonpublic' forum (which may not be the same as a 'private' forum) makes little sense.

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