June. 20, 2018
Minnesota Voters Alliance v. Mansky, 585 U.S. ___ (2018) (Roberts, C.J.).
Response by Alan B. Morrison
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | SCOTUSblog
Minnesota Voters Alliance v. Mansky: Mixed Message on Polling Place Speech Restrictions
In Minnesota Voters Alliance v. Mansky,1 Chief Justice Roberts gave a victory to the First Amendment petitioners, but the decision rested on a ground so narrow that the State can resurrect virtually the same barriers to free speech if it does so more carefully. Moreover, the Court was very comfortable in upholding restrictions on election-related speech that seem much more harmless to most people than are the massive campaign spending rulings that allow money to have such a major influence on our elections.
Minnesota, like all 50 states and the District of Columbia, restricts Election Day campaigning inside polling places. Minnesota extends that ban to locations “within 100 feet of the building in which a polling place is situated,”2 which for large structures can extend quite far, including into public streets. The statute prohibits not only active campaigning—such as handing out leaflets or carrying signs—but also wearing buttons and articles of clothing such as T-shirts and caps with campaign material on them. Whether there are any ballot initiatives or not, this prohibition also extends to expressions supporting them.
The problem for Minnesota in the Court was that the ban extended not only to materials that named candidates, parties, or ballot measures, but also to “political badges, political buttons, or other political insignia.”3 The State took an expansive view of “political” to include buttons with “Please I.D. Me”—seen as a support for voter ID laws even though none were on the ballot—and a “Tea Party Patriots” shirt.4 Officials took down the names and addresses of voters who wore them in the polling place (but allowed them to vote), and threatened to take action against them by seeking a civil penalty or by filing a misdemeanor complaint, although no such measures were actually taken. At that point, plaintiffs filed suit alleging that the Minnesota law violated their First Amendment right to free speech.
After more than seven years in the courts, the case finally reached the High Court, which proceeded in three steps. First, it concluded that the polling place itself was a “nonpublic forum,”5 which meant that the State had much more leeway in controlling speech there than it would on the sidewalks, where the law also applied (although plaintiffs did not claim that the State sought to enforce the buttons and apparel aspect there). Second, it re-affirmed its ruling in Burson v. Freeman,6 which upheld the restriction as applied to campaign literature inside a polling place. It did so while applying strict scrutiny, on the (dubious) theory that states have the right to assure a place of calm for voting, which might apply if someone were thrusting literature into the hands of a citizen waiting to cast a vote. In Minnesota Voters Alliance, the Court extended that ruling or, more accurately, simply applied it without any additional explanation, to what are clearly election and ballot-related messages on apparel and buttons.
Third, it found that the term “political” was too vague and its contours so indefinite as to be without limits.7 The fear, a common one in First Amendment situations, is that those who enforce the law might use the open-ended nature of the term to single out individuals or ideas with whom they differed while allowing those with whom they agreed to go unimpeded. In dissent, Justice Sotomayor and Justice Breyer would have asked the Minnesota Supreme Court for its interpretation of state law as a means of avoiding the constitutional questions and perhaps saving the law.8 Notably, they did not disagree with what the majority ruled in terms of the basic steps or the need to assure that the law was not unduly vague; they only differed on how the law should be made more specific.
In this posture, Minnesota now has two choices: it can do nothing, in which case only the very specific bans on candidate and ballot measure materials, which probably represent the vast majority of what most voters might otherwise wear, will be enforced; or the state can try to add narrow, but specific categories of “political” messages without using that term, if it thinks it is worth the effort. Minnesota could also wait and see if large numbers of voters start wearing “political” buttons or caps and if anyone objects or even cares, and then try to draft rules that will satisfy the Court.
When most people read or just hear about Minnesota Voters Alliance, they might agree with the Court that civility inside the polling place is a good idea and that these limits on free speech—even election speech, which is entitled to the greatest protection under the First Amendment—are quite modest. But some of us might look at the decision differently. We might ask, how much distraction can there be if you are standing in line next to someone who wears a Trump or Clinton button, or even hands you a paper with recommendations for candidates? The Supreme Court allows sound trucks to bother us, except during certain times during the day, and cities cannot have blanket prohibitions on door-to-door solicitors for nonprofit or political organizations. The same is true for obtrusive dinnertime phone calls from politicians and even for-profit companies, unless we ask that the latter do not call us. And nothing stops the pounds of junk mail and scores of emails filling our inboxes, even for commercial activities. In other words, what’s the big harm from a little political speech in a polling place, unless there is actual interference when you are trying to complete your ballot? Indeed, one wonders if, on the approach endorsed by all nine Justices, a state could forbid me from whispering the name of a preferred candidate to my neighbor standing in the line inside the polling place, on the same theory as used to sustain these laws.
The antispeech position becomes even less tenable when the alleged harm is compared to that of two practices that the Court has found to be constitutionally protected: the right of corporations, as well as individuals, to spend unlimited sums on “independent” political advertising,9 and the right of individuals to send the maximum allowable contribution to every candidate and political party that the individual supports in a federal election cycle, with no overall limits, even if the total probably would reach six million dollars.10 If the purpose of imposing limits on election-related activities, whether spending money or wearing political apparel, is to protect our democracy, most people would be far more concerned about the highly permissive rulings on campaign spending than today’s decision that permits the government to tell me I can’t wear my button or T-shirt supporting my favored candidate or political party once I step inside the polling place.
While perhaps we can muster a small cheer for today’s ruling against vagueness, we ought to be much more concerned about what the Court still allows states to prohibit inside the polling place, with not an expression of concern for this restriction on free speech about our elections.
Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at The George Washington University Law School where he teaches constitutional law. He was also co-counsel for the respondents who lost Burson v. Freeman, a case similar in many respects to Minnesota Voters Alliance v. Mansky.
- No. 16-1435, slip op. (U.S. June 14, 2018).
- Minn. Stat. § 211B.11 (2017).
- Id.
- See Minnesota Voters Alliance, slip op. at 5.
- Id. at 7.
- 504 U.S. 191 (1992).
- Minnesota Voters Alliance, slip op. at 12–19.
- See id. at 1 (Sotomayor, J., dissenting).
- See Citizens United v. FEC, 558 U.S. 310 (2010).
- See McCutcheon v. FEC, 134 S. Ct. 1434 (2014).
Recommended Citation
Alan B. Morrison, Response, Minnesota Voters Alliance v. Mansky: Mixed Message on Polling Place Speech Restrictions, Geo. Wash. L. Rev. On the Docket (June 20, 2018), https://www.gwlr.org/minnesota-voters-alliance-v-mansky.
