Does Minnesota’s Restriction on Individuals Wearing “Political Badges, Political Buttons, or Political Insignia” in the Polling Place Violate the First Amendment?
CASE AT A GLANCE
Some Minnesota voters wore shirts to their polling places in the 2010 election that bore the Tea Party emblem and slogans. Enforcing a state ban on wearing “political badges, political buttons, or political insignia” at the polls, election officials asked the voters to conceal the messages or remove them before voting. In one instance, the voter refused. Officials nevertheless eventually allowed him to vote, but recorded his name and address for referral for violation of state law.
Under the First Amendment, the government cannot restrict speech based on its content, unless the government can show that its restriction is necessary to achieve a compelling government interest. Moreover, the government cannot restrict substantially more speech than the First Amendment allows. On the other hand, the government can restrict speech in a government-controlled space (called a “nonpublic forum”), so long as the restriction is reasonable and viewpoint-neutral.
Does the First Amendment permit a state to prohibit individuals from wearing “political badges, political buttons, or political insignia” in a polling place?
Minnesota, like every other state, regulates campaign speech at polling places in order “to allow voters to cast ballots in peaceful, orderly polling places unhampered by coercive, intimidating, or disorderly conduct.” For example, Minnesota law prohibits persons from displaying campaign material, posting signs, and attempting to influence other voters. It also prohibits persons from providing “political badges, political buttons, or other political insignia to be worn at or about the polling place” on election day. Finally—and relevant here—Minnesota law prohibits persons from wearing a “political badge, political button, or other political insignia” at a polling place on primary or election day. (This ban also applies at absentee voting locations.)
In order to implement this last provision in the 2010 election, election managers for Hennepin and Ramsey Counties sent out an identical memorandum—the “Election Day Policy”—to city clerks within those counties. The Election Day Policy listed examples of the kinds of “political badges, political buttons, or other political insignia” that fell within the statutory ban. These included, but were not limited to, the following:
- Any items including the name of a political party in Minnesota, such as the Republican, Democratic-Farmer-Laborer (DFL), Independence, Green, or Libertarian parties.
- Any item including the name of a candidate at any election.
- Any item in support of or opposition to a ballot question at any election.
- Issue-oriented material designed to influence or impact voting (including specifically the “Please I.D. Me” buttons).
- Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).
The Policy directed election judges to ask individuals to conceal or to remove prohibited political apparel while inside the polling place. If the voter refused, the Policy required election judges to permit the voter to vote, but to record the violator’s name for referral to “appropriate authorities.”
Violators of the statutory ban are subject to an administrative process in the Minnesota Office of Administrative Hearings (OAH). If a complaint is filed, OAH may dismiss it, reprimand the violator, or impose a civil penalty up to $5,000 on the violator. OAH may also refer a complaint to a county prosecutor. If there is a criminal prosecution, the penalty is a petty misdemeanor, which is not a crime under Minnesota law.
Prior to the 2010 election, the North Star Tea Party Patriots, a private organization, began distributing shirts with the Tea Party emblem and related political slogans. Around the same time, the North Star Tea Party Patriots, the Minnesota Voters Alliance (MVA), and other private organizations formed the Election Integrity Watch (EIW), “a grass-roots effort to protect election integrity.” EIW distributed buttons with the phrase “Please I.D. Me” stamped in yellow letters below an image of a human eye. The buttons listed a toll-free phone number and website where voters could report “suspicious activity” on election day. The buttons were part of a broader EIW campaign to give the false impression to voters at the polls that Minnesota required a photo ID to vote. (It doesn’t, although the issue was “the subject of public and legislative debate.”) Members of the organizations planned to wear the apparel and buttons while voting.
On election day in 2010, Andrew Cilek, the executive director of MVA, wore a “Please I.D. Me” button and a Tea Party shirt to his polling place in Hennepin County. An election worker told Cilek that he could not vote unless he covered or removed the shirt and button. Cilek refused and left. (This happened twice.) Cilek later returned (again with the shirt and button), but this time election officials allowed him to vote and recorded his name and address. Cilek alleges that he was deprived of his right to vote “for over five hours.” (In addition, election officials asked another voter to cover or remove his “Please I.D. Me” button under threat of prosecution.)
After the election, several individuals and organizations sued the Minnesota Secretary of State and other government officials, arguing that the statutory ban on political apparel violated the First Amendment both on its face and as applied to them. The district court dismissed the case.
The United States Court of Appeals for the Eighth Circuit affirmed with regard to the plaintiffs’ facial challenge. But the Eighth Circuit reversed and remanded the case for further proceedings on the plaintiffs’ as-applied challenge. The district court again rejected the plaintiffs’ as-applied challenge as to both the “Please I.D. Me” buttons and the Tea Party shirts. The plaintiffs again appealed, but only with regard to the shirts (and not the buttons). The Eighth Circuit affirmed. This appeal followed.
Because the plaintiffs declined to pursue their challenge as to the buttons, this case deals only with their facial challenge to the statutory ban and their as-applied challenge with regard to the shirts.
The plaintiffs argue first that the statutory ban is unconstitutionally overbroad. That is, they say that the ban proscribes substantially more speech than the First Amendment allows. “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 preferences, to messages about current issues.” They contend that this is especially pernicious in the context of political speech—the highest value speech under the First Amendment. Moreover, the plaintiffs claim that the ban’s use of the broad term “political” allows election officials to interpret the ban to include other forms of protected speech, “such as religious or environmental messages.” This sweep, they say, makes the ban unconstitutionally overbroad.
The plaintiffs argue next that the state’s interests cannot justify the ban as a content-based restriction on speech. They claim that the ban does not advance the state’s interests in peace and order at the polling place, because wearing clothing with political messages is inherently nondisruptive. And they say that the ban does not advance the state’s interests in protecting voters from confusion and undue influence, because it operates to prohibit even those messages that make no attempt to influence voters (but instead merely name a political group or ideology).
Finally, the plaintiffs argue that the state cannot interpret the ban in order to narrow its reach and bring it within the bounds of the First Amendment. They claim that the statute’s broad language simply does not lend it to a narrowing interpretation.
The state counters that the statute is, in fact, more narrow, and that it bans only expression “that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in that polling place.” The state says that the plain language of the statute and its application by Minnesota’s election officials support its view that “political” apparel includes only clothing that “convey[s] a message about voters’ electoral choices.”
The state argues next that its ban is a reasonable, content-based restriction on speech in the “nonpublic forum” of the polling place. The state contends that the interior of the polling place is government-controlled property designed for the sole purpose of voting. As such, the state says that it can restrict speech at the polls based on content (such as political speech, without regard to political position), even if not based on viewpoint (such as pro-Republican speech), so long as the restriction is merely reasonable.
The state asserts that its ban is both reasonable and viewpoint-neutral, thus satisfying the nonpublic-forum test. As to reasonableness, the state claims that its ban promotes its interests in “peace, order, and decorum in the polling place,” allowing voters to deliberate and allowing election officials to focus on the efficient administration of the process. It also contends that the ban protects voters from the confusion, undue influence, and intimidation that could result when a person displays political messages “inside the confined quarters of a polling place.” The state says that by achieving these aims, the ban also “serves the overarching, compelling objective of election integrity.” As to viewpoint-neutrality, the state says that the ban restricts speech based only on content, not viewpoint, both in its plain language and its application.
Finally, the state argues that because its ban satisfies the nonpublic-forum test, it cannot be facially overbroad. But the state says that if the Court has any concern about this, it should certify a question to the Minnesota Supreme Court for a definitive interpretation of the statute. (As a general matter, the Court looks to state- court interpretations of state laws that might raise constitutional problems, because it might turn out that a state-court interpretation could answer the constitutional question. For example, in this case the state court might interpret the statute the same way the state does—narrowing it to ban only speech that relates to a ballot question, and not to ban any political speech—thus bringing it within, or at least closer to, the kind of speech that the government can ban under the First Amendment. On the other hand, the state court could interpret the statute broadly, like the plaintiffs. Either way, a state-court ruling definitively interpreting the statute could make the Court’s job easier in ruling on its facial constitutionality (but probably not its as-applied constitutionality). At the very least, such a ruling could sharpen the question.
This case tests which First Amendment standard will apply inside the polling place. On the one hand, the plaintiffs argue that the Court should apply “strict scrutiny”—the traditional standard whenever the government restricts speech based on its content. They also argue that the Court should apply its over-breadth doctrine, which prohibits government from restricting substantially more speech than the First Amendment allows. On the other hand, the state argues that the Court should apply “forum analysis.” Under that approach, the government can restrict speech in a “nonpublic forum” (including a polling place), so long as the restriction is merely reasonable and viewpoint neutral.
The difference matters. The plaintiffs’ approach would set the bar very high and likely leave little room for government regulation of speech at the polls, while the state’s approach would give government much more flexibility to regulate that speech. With all 50 states and the District of Columbia limiting speech to some degree within the polling place—and with 45 states and D.C. regulating speech on apparel to varying degrees, and 11 states prohibiting individuals from wearing “political” apparel—the ruling will have wide impact, either way.
The plaintiffs’ facial challenge will turn on the interpretation of the statute. To see why, consider a hypothetical voter who wears a “Greenpeace” T-shirt to the polls. The T-shirt seems to violate Minnesota’s ban, if the ban applies to all political messaging (as the plaintiffs argue). But it does not seem to violate the ban, if the ban applies only to political messaging related to an election or ballot question, say, on an environmental-protection proposal (as the state argues). (This may explain why the plaintiffs dropped their challenge to the ban as applied to the “Please I.D. Me” buttons: voter ID necessarily touches on any ballot question in a state where voter ID is an open, debated political issue.) Because the plaintiffs’ facial challenge will turn on the interpretation of the statute, the Court may accept the state’s invitation to seek an interpretation of it from the Minnesota Supreme Court.
The Court weighed in on issues of polling place speech 25 years ago in Burson v. Freeman, 504 U.S. 191 (1992). In Burson, the Court ruled that a Tennessee law that banned the solicitation of votes and the display or distribution of campaign materials within 100 feet of entrances to polling facilities did not violate the First Amendment. The Court applied forum analysis, determined that the ban was a content-based restriction on speech in a public forum (because it applied to areas outside the polling place, including sidewalks and streets adjacent to a polling place), and applied strict scrutiny. Despite this high standard, the Court nevertheless ruled that the ban satisfied it: “We find that this widespread and time-tested consensus [among the states that an area outside the polling place ought to be free of electioneering] demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.”
Burson doesn’t answer the question in this case, though, and probably foretells little about how this very different Court is likely to address this very different issue.