State v. Francis

Decision Date20 July 2016
Docket NumberNo. 20150280.,20150280.
Citation882 N.W.2d 270
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Curtis Vernon FRANCIS, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Katherine M. Naumann (argued), Assistant State's Attorney, Jamestown, ND, for plaintiff and appellee.

Ariston E. Johnson (argued), Watford City, ND and Thomas A. Dickson (on brief), Bismarck, ND, for defendant and appellant.

Lori S. Mickelson, Office of the Attorney General, Bismarck, ND, for amicus curiae North Dakota Attorney General.

KAPSNER, Justice.

[¶ 1] Curtis Francis appeals from a criminal judgment after conditionally pleading guilty to gathering signatures within 100 feet of a polling place. We conclude the electioneering law he was charged under does not violate the First Amendment to the United States Constitution, and it is a reasonable restriction on the North Dakota Constitution's initiated ballot measure provision. We also conclude Francis has failed to show he was selectively prosecuted. We affirm the judgment.

I

[¶ 2] Francis and another man, Michael Dax, were collecting signatures near the Jamestown Civic Center, a designated polling place, on voting day. They were doing so in an effort to get an initiated measure regarding environmental concerns placed on the next ballot. While they were collecting signatures, it began to rain. They moved under a canopy covering an entrance to the polling place. They continued collecting signatures as individuals walked past them to vote.

[¶ 3] One voter told an election clerk about Francis and Dax's activities. The clerk informed the county auditor. The auditor, along with a plain-clothed security officer, went to speak with Francis and Dax. They informed the two it was illegal to collect signatures within 100 feet of a polling place. Dax began arguing with the auditor; Francis continued collecting signatures. A police officer was dispatched. The officer confiscated the signatures, but did not arrest Francis or Dax. After the incident, the officer forwarded a report to the county prosecutor.

[¶ 4] The prosecutor filed charges against Francis for collecting signatures within 100 feet of an open polling place in violation of N.D.C.C. § 16.1–10–06.2. Francis filed a motion to dismiss the charges. He argued the law infringes upon his right to free speech and violates the North Dakota Constitution's ballot initiative provision. He also argued he was selectively prosecuted because of his support for the environmental initiative in a county where the measure was unpopular. He asserted others, both supporting and opposing the same initiated measure, broke the same election law but were not prosecuted in other counties based on the popularity of the initiated measure in that county. The district court denied Francis's motion. Francis conditionally pled guilty and appealed.

II

[¶ 5] On appeal, Francis argues N.D.C.C. § 16.1–10–06.2 is an unconstitutional violation of the First Amendment both on its face and as applied to him.

[¶ 6] We review constitutional challenges to a statute de novo. Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d 505. “All regularly enacted statutes carry a strong presumption of constitutionality.... The presumption of constitutionality is so strong that a statute will not be declared unconstitutional unless its invalidity is, in the court's judgment, beyond a reasonable doubt.” State v. Baxter, 2015 ND 107, ¶ 5, 863 N.W.2d 208 (quoting Beylund v. Levi, 2015 ND 18, ¶ 17, 859 N.W.2d 403 ).

[¶ 7] Section 16.1–10–06.2, N.D.C.C., provides:

A person may not approach a person attempting to enter a polling place, or who is in a polling place, for the purpose of selling, soliciting for sale, advertising for sale, or distributing any merchandise, product, literature, or service. A person may not approach a person attempting to enter a polling place, who is in a polling place, or who is leaving a polling place for the purpose of gathering signatures for any reason. These prohibitions apply in any polling place or within one hundred feet [30.48 meters] from any entrance leading into a polling place while it is open for voting.
A

[¶ 8] Francis argues N.D.C.C. § 16.1–10–06.2 is unconstitutional because it violates his right to free speech under the First Amendment to the United States Constitution. The State asserts it is a constitutional time, place, and manner restriction on speech.

[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.

McCullen v. Coakley, ––– U.S. ––––, 134 S.Ct. 2518, 2529, 189 L.Ed.2d 502 (2014) (alteration in original). We first examine whether the statute is content neutral.

The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.

Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (emphasis in original) (citations omitted).

[¶ 9] We determine N.D.C.C. § 16.1–10–06.2 is content neutral. The statute's purpose is to facilitate citizens' right to vote. Its enforcement does not depend on a particular message or viewpoint; enforcement depends on whether an individual collects a signature at the prohibited time within the prohibited area, regardless of the purpose for collecting the signature. See, e.g., McCullen, 134 S.Ct. at 2531 (The Act would be content based if it required enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred. But it does not. Whether petitioners violate the Act depends not on what they say, but simply on where they say it.”) (citations omitted). In Bolinske v. North Dakota State Fair Ass'n, 522 N.W.2d 426 (N.D.1994), we upheld a statute that prohibited individuals from gathering signatures for petitions at the state fair unless they did so from a rented booth. Id. at 429. We held the statute was content neutral because [i]t applies to all persons and organizations desiring to ... gather signatures for any petitions at the state fair.” Id. at 433. In the present case, the statute is even less specific. It prohibits “gathering signatures for any reason.” N.D.C.C. § 16.1–10–06.2.

[¶ 10] Having determined N.D.C.C. § 16.1–10–06.2 is content neutral, we must decide whether it is narrowly tailored to serve a significant government interest.

For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not burden substantially more speech than is necessary to further the government's legitimate interests. Such a regulation, unlike a content-based restriction of speech, need not be the least restrictive or least intrusive means of serving the government's interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.

McCullen, 134 S.Ct. at 2535 (citations omitted).

[¶ 11] We conclude the government's interest in facilitating citizens' right to vote is more than significant; it is compelling. In Burson v. Freeman, the United States Supreme Court was presented with “a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote—a right at the heart of our democracy.” 504 U.S. 191, 198, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). The Court determined states have a compelling interest in preventing voter intimidation and election fraud. Id. at 199–200, 112 S.Ct. 1846.

[¶ 12] The more difficult question is whether the statute is “narrowly tailored.” In Emineth v. Jaeger, 901 F.Supp.2d 1138, 1146 (D.N.D.2012), a North Dakota statute prohibiting all electioneering speech on election day, besides permanent advertisements and bumper stickers, was held unconstitutional by a federal district court. After that case, the Legislature amended N.D.C.C. § 16.1–10–06.2 to apply only at times when a polling place is open, rather than “on election day” generally. See 2013 N.D. Sess. Laws ch. 173, § 3. Francis cites to a more recent federal case, McCullen, 134 S.Ct. 2518, and argues the law, despite the amendment, still is not narrowly tailored. In that case, the United States Supreme Court ruled on the constitutionality of a statute prohibiting persons from being within thirty-five feet of a reproductive healthcare facility during business hours unless they are employees, emergency personnel, or are coming or going from the facility. Id. at 2526. The Court determined the statute “burden[ed] substantially more speech than necessary.” Id. at 2537.

[¶ 13] The State, on the other hand, asserts the statute here is comparable to the one upheld in Burson. In that case, a statute created a 100–foot buffer zone around polling places. The buffer zone specifically prohibited electioneering speech. 504 U.S. at 193–94, 112 S.Ct. 1846. The Court, applying strict scrutiny because the statute at issue applied only to political speech, upheld the restriction:

A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right. Given the conflict between these two rights, we hold that requiring solicitors to stand 100 feet from the
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