Minnesota Voters Alliance v. Mansky, 061418 FEDSC, 16-1435

Docket Nº:16-1435
Opinion Judge:Roberts Chief Justice.
Judge Panel:ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, Thomas, Ginsburg, Alito, Kagan, and Gorsuch, JJ., joined. So-TOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined. Justice Sotomayor, with whom Justice Breyer joins, dissenting.
Case Date:June 14, 2018
Court:United States Supreme Court

Minnesota law prohibits wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day, Minn. Stat. 211B.11(1), including clothing and accessories with political insignia. Election judges are authorized to decide whether a particular item is banned. Days before the 2010 election, plaintiffs challenged the ban. In response, the state distributed guidance with specific... (see full summary)


585 U.S. ___ (2018)




No. 16-1435

United States Supreme Court

June 14, 2018


Argued February 28, 2018

Minnesota law prohibits individuals, including voters, from wearing a "political badge, political button, or other political insignia" inside a polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017). This "political apparel ban" covers articles of clothing and accessories with political insignia upon them. State election judges have the authority to decide whether a particular item falls within the ban. Violators are subject to a civil penalty or prosecution for a petty misdemeanor.

Days before the November 2010 election, petitioner Minnesota Voters Alliance (MVA) and other plaintiffs challenged the ban in Federal District Court on First Amendment grounds. In response to the lawsuit, the State distributed an Election Day Policy to election officials providing guidance on enforcement of the ban. The Election Day Policy specified examples of prohibited apparel to include items displaying the name of a political party, items displaying the name of a candidate, items supporting or opposing a ballot question, "[i]ssue oriented material designed to influence or impact voting, " and "[m]aterial promoting a group with recognizable political views." App. to Pet. for Cert. I-1 to 1-2. On Election Day, some voters ran into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a "Please I. D. Me" button and a T-shirt bearing the words "Don't Tread on Me" and a Tea Party Patriots logo.

MVA and the other plaintiffs argued that the ban was unconstitutional both on its face and as applied to their particular items of apparel. The District Court granted the State's motion to dismiss, and the Eighth Circuit affirmed the dismissal of the facial challenge and remanded the case for further proceedings on the as-applied challenge. The District Court granted summary judgment to the State on the as-applied challenge, and the Eighth Circuit affirmed. MVA, Cilek, and petitioner Susan Jeffers (collectively MVA) petitioned for review of their facial First Amendment claim only.

Held: Minnesota's political apparel ban violates the Free Speech Clause of the First Amendment. Pp. 7-19.

(a) Because the political apparel ban applies only in a specific location-the interior of a polling place-it implicates the Court's " 'forum based' approach for assessing restrictions that the government seeks to place on the use of its property." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678. A polling place in Minnesota qualifies as a nonpublic forum under the Court's precedents. As such it may be subject to content-based restrictions on speech, see, e.g.,

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806-811, so long as the restrictions are "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view, " Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46. Because the text of the statute makes no distinction based on the speaker's political persuasion, the question is whether the apparel ban is "reasonable in light of the purpose served by the forum": voting. Cornelius, 473 U.S., at 806. Pp. 7-9.

(b)Minnesota's prohibition on political apparel serves a permissible objective. In Burson v. Freeman, 504 U.S. 191, the Court upheld a Tennessee law imposing a 100-foot zone around polling place entrances in which no person could solicit votes, distribute campaign materials, or "display . . . campaign posters, signs or other campaign materials." 504 U.S., at 193-194 (plurality opinion). In finding that the law withstood even strict scrutiny, the Burson plurality-whose analysis was endorsed by Justice Scalia's opinion concurring in the judgment-emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee's determination that a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote.

MVA argues that Burson considered only active campaigning outside the polling place by campaign workers and others trying to engage voters approaching the polls, while Minnesota's ban prohibits passive self-expression by voters themselves when voting. But although the plurality and Justice Scalia in Burson did not expressly address the application of the Tennessee law to apparel-or consider the interior of the polling place as opposed to its environs-the Tennessee law swept broadly to ban even the plain "display" of a campaign-related message, and the Burson Court upheld the law in full. The plurality's conclusion that the State was warranted in designating an area for the voters as "their own" as they enter the polling place, id., at 210, suggests an interest more significant, not less, within that place.

No basis exists for rejecting Minnesota's determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as "an island of calm in which voters can peacefully contemplate their choices." Brief for Respondents 43. Casting a vote is a weighty civic act, and the State may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. And while the Court has noted the "nondisruptive" nature of expressive apparel in more mundane settings, see, e.g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 576, those observations do not speak to the unique context of a polling place on Election Day. Pp. 9-12.

(c) But the line the State draws must be reasonable. The State therefore must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. The unmoored use of the term "political" in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota's restriction to fail this test.

The statute does not define the term "political, " a word that can broadly encompass anything "of or relating to government, a government, or the conduct of governmental affairs." Webster's Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly 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." Brief for Respondents 13. At the same time, the State argues that the category of "political" apparel is not limited to campaign apparel.

The Court considers a State's authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota's "electoral choices" construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category-"issue oriented material designed to influence or impact voting"-raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an "issue" within the meaning of that category. Such 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.

The next broad category in the Election Day Policy-any item "promoting a group with recognizable political views"-makes matters worse. The State does not confine that category to groups that have endorsed a candidate or taken a position on a ballot question. As a result, any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an "issue confronting voters." The State represents that the ban is limited to apparel promoting groups with "well-known" political positions. But that requirement only increases the potential for erratic application, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it.

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." Jews for Jesus, 482 U.S., at 576. The discretion election judges exercise in enforcing the...

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