Minn. Majority v. Individual

• Decision Date: 29 April 2011
• Docket Number: Civil No. 10–4401 (JNE/SER).
• Citation: 789 F.Supp.2d 1112
• Parties: MINNESOTA MAJORITY, Minnesota Voters Alliance, Minnesota North Star Tea Party Patriots, Election Integrity Watch, Susan Jeffers, individually and as an election judge, Dorothy Fleming, Jeff Davis, Dan McGrath and Andy Cilek, Plaintiffs,v.Joe MANSKY in his individual and official capacity as the Elections Manager for Ramsey County, Rachel M. Smith in her individual and official capacity as the Elections Manager for Hennepin County, Mike Freeman in his individual and official capacity as Hennepin County Attorney, Susan Gaertner in her individual capacity, John J. Choi in his official capacity as Ramsey County Attorney, and Mark Richie in his individual and official capacity as Secretary of State, Defendants.
• Court: U.S. District Court — District of Minnesota

789 F.Supp.2d 1112

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

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

Civil No. 10–4401 (JNE/SER).

United States District Court, D. Minnesota.

April 29, 2011.

Erick G. Kaardal, Mohrman & Kaardal, P.A., Minneapolis, MN, for Plaintiff.John P. Edison, Kevin M. Lindsey, Christie B. Eller, Kenneth E. Raschke, Jr., Nathan J. Hartshorn, Minnesota Attorney General's Office, Leanne L. Matchen, Dorsey & Whitney LLP, St. Paul, MN, Beth A. Stack, Daniel P. Rogan, Marcia–Na F. Johnson–Blanco, Mark–Na A. Posner, Robert–Na A. Kengle, Not Admitted, Mariah L. Reynolds, Vernle C. Durocher, Jr., Dorsey & Whitney LLP, Minneapolis, MN, for Defendant.

ORDER

JOAN N. ERICKSEN, District Judge.

Individual and institutional Plaintiffs assert violations of the United States and Minnesota constitutions against Defendants, Elections Managers of Ramsey and Hennepin Counties, County Attorneys for Ramsey and Hennepin Counties, and the Minnesota Secretary of State, in their individual and official capacities.¹ In broad terms, the claims arise out of allegations that Minnesota Statutes section 211B.11, subdivision 1 (2010), which prohibits the wearing of political buttons, badges, and insignia in and around the polling place, is facially unconstitutional and that Defendants, in their implementation and enforcement of the statute, violated Plaintiffs' rights to free speech, association, vote, equal protection, and due process under both the United States and Minnesota constitutions. The case is before the Court on Defendants' motions pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the Amended Complaint. For the reasons set forth below, the Court grants the motions.

I. BACKGROUND

On Monday, November 1, 2010, the Court heard Plaintiffs' motion for a Temporary Restraining Order (TRO) and preliminary injunction. Treating the motion as one for a TRO, the Court found that Plaintiffs were not likely to succeed on the merits of their claims and denied the motion. On November 18, 2010, after the November election took place, Plaintiffs filed the Amended Complaint. The institutional Plaintiffs, Minnesota Majority, Minnesota Voters Alliance, and Minnesota North Star Tea Party Patriots, assert that they are Minnesota 501(c)(4) nonprofit organizations and that together they form a grass roots coalition called Election Integrity Watch (EIW). The individual Plaintiffs, Susan Jeffers, Jeff Davis, Dorothy Fleming, Dan McGrath, and Andy Cilek, are eligible voters in Ramsey or Hennepin County; Susan Jeffers is also an election judge in Ramsey County.² Plaintiffs allege that Minnesota Statutes section 211B.11, subdivision 1, and the way it was enforced, wrongfully prohibited or chilled the wearing of North Star Tea Party Patriots T-shirts and EIW buttons to the polls. The buttons state “Please ID. Me” and include an image of an open eye, a telephone number, and a website address including the word “integrity.” (Am. Compl. Ex. A) The T-shirts bear a “Tea Party Patriots” logo along with one of several slogans including “Don't Tread on Me” and “Fiscal Responsibility, Limited Government, Free Markets.” (Am. Compl. Ex. B) The institutional Plaintiffs do not endorse candidates for election and, while the question of whether Minnesota law should be changed to require voters to identify themselves at the polling place is the subject of public and legislative debate, there was no issue relating to voter identification on the November 2, 2010, ballot.

Minnesota Statutes section 211B.11, subdivision 1 provides:

A person may not 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, or anywhere on the public property on which a polling place is situated, on primary or election day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. 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 complaint alleging a violation of section 211B must be filed with the Office of Administrative Hearings (OAH). After OAH has finally disposed of the complaint, the alleged violation can be prosecuted by a county attorney as a petty misdemeanor. Minn.Stat. § 211B.11, subd. 4.

For present purposes, the Court assumes that the allegations of the Amended Complaint, summarized below, are true. Plaintiff and election judge Sue Jeffers approached Joe Mansky, Elections Manager for Ramsey County, asking about “rumors” she had heard about “Please I.D. Me” buttons and Tea Party T-shirts. Mansky told Jeffers that the buttons and Tea Party messages of any kind would be prohibited at the polls. Subsequently, but prior to November 2, Mansky told election judges that individuals at or “within 100 feet” of the polling place would be asked to cover any “political shirt, hat button, badge or insignia.” He also stated that no individual would be denied the right to vote. Rachel Smith, Elections Manager for Hennepin County, and Secretary of State Ritchie subsequently adopted the same policy. The Amended Complaint alleges that this policy applied “particularly” to the “Please I.D. Me” buttons and Tea Party apparel. (Am. Compl. ¶¶ 57–59) Hennepin County Attorney Mike Freeman stated that poll watchers wearing buttons asking voters for identification “won't be allow[ed] in polling stations.” (Am. Compl. ¶ 61) On October 30, 2010, Mansky drafted a memorandum on the subject of “Displaying Campaign Materials in the Polling Place” (Election Day Policy).³ The Election Day Policy directed election judges who saw individuals wearing political materials to remove or cover the materials while “in the polling place.” ( Id.) Under the Election Day Policy

[e]lection judges have the authority to decide what is “political.”

Examples include, but are not limited to:

• Any item including the name of a political party in Minnesota, such as Republican, 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).

Even if individuals refused to remove or cover prohibited items, the Election Day Policy directed that they must be allowed to vote, though their names and addresses would be recorded and referred “to appropriate authorities.” ( Id.)

On election day, Jeff Davis, a registered voter in Ramsey County who had learned of this policy, was deterred from wearing a Tea Party T-shirt and a “Please I.D. Me” button. Dan McGrath, a registered voter in Hennepin County, wore a “Please I.D. Me” button. An election judge asked McGrath to cover the button, McGrath refused, and the election judge obtained his name. Andy Cilek, also registered to vote in Hennepin County, wore both a “Please I.D. Me” button and a Tea Party T-shirt. Election judges “refused to allow Mr. Cilek to vote” on two occasions. Cilek did not vote “for over five hours.” ⁴ One voter wearing a Tea Party T-shirt was “interrupted” “during the voting process” and asked to remove or cover his Tea Party T-shirt. He was warned that if he did not, he could be prosecuted. Some Hennepin County election judges allowed individuals, including Plaintiff Dorothy Fleming, to wear the “Please I.D. Me” buttons without asking them to cover or remove the buttons. In unidentified counties, unidentified voters were allowed to vote wearing buttons affiliated with the Sierra Club and Minnesota Common Cause. The Sierra Club endorses candidates and Minnesota Common Cause lobbies for legislation to reform the electoral process.⁵

Aspects of Plaintiffs' Amended Complaint are somewhat imprecise or otherwise difficult to decipher. For example, the Amended Complaint alleges that the policy “exercises a standardless discretion over what expressive conduct is electioneering,” when the word “electioneering,” while it appears in Arizona's statute, see Reed v. Purcell, No. CV 10–2324, 2010 WL 4394289, at *1 (D.Ariz. Nov. 1, 2010); Ariz.Rev.Stat. § 16–515 (2010), does not appear in either the policy or the statute being challenged here. Nonetheless, the Court has determined that Plaintiffs' four-count Amended Complaint alleges: (1) that Minnesota Statutes section 211B.11, subdivision 1, is a facially unconstitutional restriction of First Amendment rights under the United States Constitution and parallel rights under the Minnesota constitution (Count IV); (2) that section 211B.11, as applied in the Election Day Policy adopted by Hennepin and Ramsey Counties and the Secretary of State, violated Plaintiffs' First Amendment rights, their constitutionally protected right to vote, and parallel rights under the Minnesota constitution (Counts I and IV); (3) that the Election Day Policy violated Plaintiffs' due process rights under both the United States and Minnesota...