Minn. Voters Alliance v. Mansky

• Decision Date: 14 June 2018
• Docket Number: No. 16–1435.,16–1435.
• Parties: MINNESOTA VOTERS ALLIANCE, et al., Petitioners v. Joe MANSKY, et al.
• Court: U.S. Supreme Court

138 S.Ct. 1876

201 L.Ed.2d 201

MINNESOTA VOTERS ALLIANCE, et al., Petitioners

v.Joe MANSKY, et al.

No. 16–1435.

Supreme Court of the United States

Argued Feb. 28, 2018.

Decided June 14, 2018.

J. David Breemer, Sacramento, CA, for Petitioners.

Daniel P. Rogan, Minneapolis, MN, for Respondents.

Erick G. Kaardal, Mohrman, Kaardal, & Erickson, P.A., Minneapolis, MN, J. David Breemer, Wencong Fa, Deborah J. La Fetra, Oliver J. Dunford, Pacific Legal Foundation, Sacramento, CA, for Petitioners.

Elaine J. Goldenberg, Ginger D. Anders, Munger, Tolles & Olson LLP, Washington, D.C., Jordan D. Segall, Munger, Tolles & Olson LLP, Los Angeles, CA, Daniel P. Rogan, Beth A. Stack, Hennepin County, Attorney's Office, Minneapolis, MN, for Respondents Virginia Gelms and Michael O. Freeman.

Nathan J. Hartshorn, Office of the Minnesota, Attorney General, Saint Paul, MN, for Respondent Steve Simon.

Robert B. Roche, Ramsey County, Attorney's Office, Saint Paul, MN, for Respondents Joe Mansky and John Choi.

Chief Justice ROBERTS delivered the opinion of the Court.

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.

I

A

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, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), "[a]pproaching the polling place under this system was akin to entering an open auction place." Id., at 202, 112 S.Ct. 1846 (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, 112 S.Ct. 1846 (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, 112 S.Ct. 1846. 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, 112 S.Ct. 1846 (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. § 211B.11(1) (Supp. 2017). The first sentence of § 211B.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 (reenacting the prohibitions as part of § 211B.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. I–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 I–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. §§ 211B.11(4) (Supp. 2017), 211B.35(2) (2014), 609.02(4a) (2016).

B

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 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)." App. to Pet. for Cert. I–1 to I–2.

As alleged in the plaintiffs' amended complaint and supporting declarations, some voters associated with EIW ran into trouble with the ban on Election Day. One individual was asked to cover up his Tea Party shirt. Another refused to conceal his "Please I.D. Me" button, and an election judge recorded his name and address for possible referral. And petitioner Cilek—who was wearing the same button and a T-shirt with the words "Don't Tread on Me" and the Tea Party Patriots logo—was twice turned away from the polls...