Majority v. Mansky

• Decision Date: 07 May 2013
• Docket Number: No. 11–2125.,11–2125.
• Citation: 708 F.3d 1051
• Parties: MINNESOTA MAJORITY; Minnesota Voters Alliance; Minnesota Northstar Tea Party Patriots; Election Integrity Watch; Susan Jeffers, individually and as an election judge; Dorothy Fleming; Jeff Davis; Dan McGrath; Andy Cilek, Plaintiffs–Appellants v. Joe MANSKY, in his official capacity as the Elections Manager for Ramsey County; Rachel M. Smith, in her official capacity as the Elections Manager for Hennepin County; Mike Freeman, in his official capacity as Hennepin County Attorney; John J. Choi, in his official capacity as Ramsey County Attorney; Mark Ritchie, in his official capacity as Secretary of State; Susan Gaertner, in her individual capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

708 F.3d 1051

MINNESOTA MAJORITY; Minnesota Voters Alliance; Minnesota Northstar Tea Party Patriots; Election Integrity Watch; Susan Jeffers, individually and as an election judge; Dorothy Fleming; Jeff Davis; Dan McGrath; Andy Cilek, Plaintiffs–Appellants

v.Joe MANSKY, in his official capacity as the Elections Manager for Ramsey County; Rachel M. Smith, in her official capacity as the Elections Manager for Hennepin County; Mike Freeman, in his official capacity as Hennepin County Attorney; John J. Choi, in his official capacity as Ramsey County Attorney; Mark Ritchie, in his official capacity as Secretary of State; Susan Gaertner, in her individual capacity, Defendants–Appellees.

No. 11–2125.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 14, 2012.

Filed: March 6, 2013.

Rehearing and Rehearing En Banc Denied May 7, 2013.^*

Erick G. Kaardal, argued, Minneapolis, MN, for appellants.

Daniel Patrick Rogan, argued, Minneapolis, MN, for appellee.

Nathan J. Hartshorn, AAG, on the brief, St. Paul, MN, for appellee Mark Ritchie.

Thomas E. Ring, Alexandra Meyer, Certified Student Attorney, on the brief, St. Paul, MN, for appellees Joe Mansky, Susan Gaertner, and John J. Choi.

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Several groups interested in electoral and governmental reform sued the Secretary of State, and Ramsey and Hennepin county election officials (“Minnesota”). Minnesota moved for dismissal, which the district court granted. The groups appeal as to the claims under the First Amendment and the Equal Protection clause.¹ Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

Election Integrity Watch (“EIW”) is comprised of Minnesota Majority, Minnesota Voters Alliance, and the North Star Tea Party Patriots. These groups assert as their mission the improvement of government and governmental processes. Minnesota Majority and Minnesota Voters Alliance advocate electoral reforms. None is a political party, and none endorsed a candidate or ballot issue in the November 2010 election. Before the election, EIW produced “Please I.D. Me” buttons. North Star Tea Party Patriots produced hats and t-shirts with Tea Party logos. The t-shirts also featured either a drawing of a shield or one of several slogans, including: “Don't tread on me,” “Liberty,” “We'll Remember in November,” and “Fiscal Responsibility, Limited Government, Free Markets.”

Shortly before the November 2010 election, EIW sought to enjoin the enforcement of the third sentence of Minn.Stat. § 211B.11, subd. 1: “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” Violation of this sentence is a petty misdemeanor. Minn.Stat. § 211B.11, subd. 4. The first sentence of Minn.Stat. § 211B.11, subd. 1 generally prohibits displaying campaign material or trying to persuade a voter about a candidate or ballot question within a polling place or within 100 feet of the polling place's building.

On the eve of the election, the district court denied a temporary restraining order. Minnesota then distributed an Election Day Policy explaining the statutory ban on political materials in polling places. The Policy gives examples of political materials, including: “[i]ssue oriented material designed to influence or impact voting (including specifically the ‘Please I.D. Me’ buttons)” and “[m]aterial promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).” The Policy instructed election judges to ask persons wearing political material to cover or remove it. If they refused, the Policy instructed election judges to record their names and addresses for potential prosecution but to permit them to vote.

At least three EIW members were affected by the Policy. One was asked to cover or remove his t-shirt. Another who refused to cover or remove his button had his name and address recorded. Yet another who was wearing both a t-shirt and a button was delayed several hours before voting. EIW asserts that the fear of prosecution stopped others from displaying the apparel. Still others who were wearing materials from EIW and other similar organizations voted without incident.

After the election, EIW amended its complaint to challenge the constitutionality of Minn.Stat. § 211B.11, subd. 1 and the Policy issued under it. The district court granted Minnesota's motion to dismiss.

This court reviews de novo the grant of a motion to dismiss for failure to state a claim. Butler v. Bank of Am., N.A., 690 F.3d 959, 961 (8th Cir.2012). Reviewing a dismissal under Rule 12(b)(6), this court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts most favorably to the complainant. Id. Although a complaint need not contain “detailed factual allegations,” it must contain facts with enough specificity “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

A court reviewing a motion to dismiss may also “consider some public records, materials that do not contradict the complaint, or materials that are ‘necessarily embraced by the pleadings.’ ” Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir.2008), quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999). The complaint refers to the Policy. The parties rely on it in their briefs. No party disputes its contents or authenticity. No party challenged the district court's consideration of it, and this court will likewise consider it as “necessarily embraced by the pleadings.”

II.

EIW alleges that Minn.Stat. § 211B.11, subd. 1 is facially unconstitutional. To succeed in a typical facial attack, EIW would have to establish “that no set of circumstances exists under which [§ 211B.11, subd. 1] would be valid,” or that the statute lacks any “plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, ––––, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010). A First Amendment case is “a second type of facial challenge”: a law may be invalidated as overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Id.,quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). “To be facially invalidated under this doctrine, the overbreadth of an ordinance affecting both conduct and pure speech must be both ‘real’ and ‘substantial’ in relation to its ‘plainly legitimate sweep.’ ” Excalibur Grp., Inc. v. City of Minneapolis, 116 F.3d 1216, 1224 (8th Cir.1997), quoting New York v. Ferber, 458 U.S. 747, 769–70, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

The First Amendment prohibits laws “abridging the freedom of speech.” U.S. Const. amend. I. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The Supreme Court has “adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.” Id. at 800, 105 S.Ct. 3439.

In Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), a Tennessee statute prohibited “campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position on a question” within 100 feet of the entrance to a polling place and the building in which it was located. Burson, 504 U.S. at 193–94, 112 S.Ct. 1846. The plurality noted that the “campaign-free” zones included sidewalks and streets adjacent to the polling places, thus banning speech in public forums. Id. at 196 & n. 2, 112 S.Ct. 1846. Because it banned content-based speech in public forums, the Tennessee statute was subject to strict scrutiny, which requires that the state show that the restriction is necessary and narrowly tailored to achieve a compelling state interest. Id. at 198–99, 112 S.Ct. 1846. The Supreme Court ruled that this was the rare case where a law survived strict scrutiny because of the long history, substantial consensus, and “simple common sense” showing that restrictions around polling places are necessary to protect the states' compelling interests in preventing voter intimidation and election fraud. Id. at 206, 211, 112 S.Ct. 1846.

EIW's challenge includes the first sentence of Minn.Stat. § 211B.11, subd. 1 (prohibiting solicitation inside or within 100 feet of the polling place). To that extent, the Burson case defeats a facial attack on the first sentence of Minn.Stat. § 211B.11, subd. 1.

The third sentence of the Minnesota statute applies only within (“at or about”) the polling place. Minn.Stat. § 211B.11, subd. 1 (“A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”). A polling place is a nonpublic forum. See, e.g., PG Publ'g Co. v. Aichele, 705 F.3d 91, 99–100 n. 10 (3d Cir.2013); Marlin v. D.C. Bd. of Elections & Ethics, 236 F.3d 716, 719 (D.C.Cir.2001); see also Poniktera v. Seiler, 181 Cal.App.4th 121, 104 Cal.Rptr.3d 291, 302 (2010) (“The comments of both Justice Scalia's concurring opinion...