A TIME FOR CHOOSING AND A TIME FOR FREE SPEECH: MINNESOTA VOTERS ALLIANCE V MANSKY AND THE CONSTITUTIONALITY OF ELECTION DAY APPAREL BANS.

• Author: Kasper, Eric T.

INTRODUCTION

In Minnesota Voters Alliance v. Mansky, (1) the U.S. Supreme Court held by a vote of seven to two that a state's Election Day political apparel ban violated the Free Speech Clause of the First Amendment. (2) Using a forum analysis, (3) Chief Justice John Roberts, writing for the majority, found that a polling place on Election Day constitutes a nonpublic forum. (4) In applying a test for nonpublic forums, the Court held that banning voters from wearing specific types of expressive apparel or accessories while inside a polling place was a reasonable state goal. (5) According to Chief Justice Roberts, at a polling place on Election Day, "[i]t is a time for choosing, not campaigning." (6) However, the Court went on to declare that the state's ban on "political" apparel was unreasonable because of the lack of clarity in that subjective standard. (7) Justice Sonia Sotomayor penned a dissent--joined by Justice Stephen Breyer--where she argued that the case should have been certified to the Minnesota Supreme Court to specifically define what the relevant statute prohibited. (8)

We engage in a critical analysis of the opinion of the Court in Minnesota Voters Alliance. We begin by recounting the relevant facts of the case in Part I of this Article. After examining the Court's reasoning on forum analysis, Part II contends that the Court in Minnesota Voters Alliance glossed over the complexity of the type of forum that such a location constitutes. In other words, while we generally agree with the Court that the interior of a polling place during voting hours on Election Day is a nonpublic forum, that is not always the case; even when some parts of a building that serve as a polling place may be a nonpublic forum, not all portions of a building that serve as a polling place will always constitute a nonpublic forum.

In Part III, we explain why we believe that the Court was correct to find the statute unconstitutional for its lack of clarity in defining the word political, but we also argue that the Constitution protects the freedom of expression more than the Court did in its ruling; we find this to be the case, in part, because of the Court's overly narrow definition of the word political in this context.

In Part IV, we assert that the First Amendment protects any political apparel worn at a polling place during voting hours on Election Day--including apparel displaying names or logos of candidates for elective office, political parties, ballot issues, and organizations--unless the person wearing the apparel is either doing so with intent to intimidate other voters or is being materially and substantially disruptive of the electoral process. Put another way, a polling place on Election Day is a time for choosing, but it is also a time for free speech.

1. THE HISTORY OF MINNESOTA'S BAN ON POLITICAL APPAREL AT POLLING PLACES ON ELECTION DAY AND RELEVANT LOWER COURT RULINGS

   As explained by the Court in Minnesota Voters Alliance, all fifty states plus the District of Columbia have laws that limit expression inside and around polling places on Election Day. (9) Minnesota, like most states, has had restrictions in place that prohibit this type of activity for more than 100 years. (10) The law at issue in Minnesota Voters Alliance has multiple parts, (11) but the portion at issue before the U.S. Supreme Court was the third sentence of Minnesota Statute section 211B.11(1), (12) which states that a "political badge, political button, or other political insignia may not be worn at or about the polling place." (13) The restriction in question is applied inside a polling place, thus not limiting expressive activities that occur outdoors. (14) Whether or not anyone at a polling place on Election Day was in violation of the law at issue was decided by state election "judges" who are temporarily hired by Minnesota to work at polling places during elections. (15)

   As designed, the law required election judges to ask anyone wearing forbidden items to cover them or remove them. (l6) If someone refused to comply with this request, the alleged offender was still permitted to vote (assuming they were otherwise eligible to do so), but the election judge was required to inform the person that incident would be documented and submitted to the Minnesota Office of Administrative Hearings. (17) If that office found at a hearing that a violation of the law occurred, it could "issue a reprimand or impose a civil penalty." (18) The Minnesota Office of Administrative Hearings could also refer the case to a state prosecutor, and if one was convicted of violating the law, it is to be considered a misdemeanor offense, whereby one could face a fine of up to $300. (19) A total of thirty-three states and the District of Columbia have laws prohibiting voters from wearing some sort of apparel or accessory at a polling place on Election Day. (20) More specifically, several states have laws that, like Minnesota, restrict the wearing of political buttons, shirts, and hats in polling places on Election Day. (21)

   Prior to the November 2010 election, the Minnesota Voters Alliance (MVA) filed a federal lawsuit claiming that the state's political apparel ban was unconstitutional. (22) The MVA is a "[nonpartisan organization focusing primarily on election integrity, research, voter education and advocacy," and it "seek[s] to increase voter participation in the election process and raise public awareness of important issues related to elections." (23) According to the MVA. it "is not affiliated with any political party and does not endorse any candidates," but the organization "reserve[s] the right to associate with any candidate, office holder or party who share [their] views on election integrity matters." (24) One of the eventual co-plaintiffs was Minnesotan Andrew Cilek, the founder of MVA and its executive director since 2004. (25) MVA was joined in its lawsuit by other organizations, including Minnesota Majority and Minnesota Northstar Tea Party Patriots; all of them were part of an association called the Election Integrity Watch (EIW). (26) Organizations that were a part of E1W intended to have their members wear to the polls in 2010 buttons that stated "Please I.D. Me" (27) in what appears to have been a form of protest against the state's lack of a voter I.D. law. (28) One of the plaintiffs also wanted to wear a 'Tea Party Patriots" shirt when voting. (29) The organization and individuals comprising EIW asked a federal district court to enjoin enforcement of the state's restriction on Election Day apparel, (30) but the Court refused to grant a temporary restraining order before Election Day in 2010. (31)

   The relevant Minnesota law did not define the word political. (32) After the MVA filed its lawsuit against the state, the Minnesota Secretary of State disseminated an "Election Day Policy" (developed by officials in two different Minnesota counties) to election judges, to give them more direction on what the political apparel ban prohibited. (33) According to the policy, the relevant law banned several types of expressive apparel at the polls on Election Day. First, no one was allowed to display apparel with names of political parties that existed in the state, including "the Republican, [Democratic-FarmerLabor], Independence, Green or Libertarian parties." (34) Second, the law outlawed "[a]ny item including the name of a candidate at any election." (35) Third, the law disallowed "[a]ny item in support of or opposition to a ballot question at any election." (36) Fourth, proscribed was apparel with "[i]ssue oriented material designed to influence or impact voting." (37) For this fourth example, the policy specifically cited "Please I.D. Me" buttons as being banned. (38) Finally, the policy advised that the statute barred the display of "[mjaterial promoting a group with recognizable political views." (39) For the fifth example, items representing the Tea Party or MoveOn.org were cited as specific types of promotional apparel that was prohibited. (40)

   On Election Day in November 2010. several individual members of the EIW alliance wore relevant apparel to the polls and experienced problems when voting.(41) One voter, Jeff Davis, was not allowed to wear a Tea Party shirt and a "Please I.D. Me" button at his polling place. (42) Another voter, Dan McGrath, wore the same type of "Please I.D. Me" button. When he refused to cover it, an election judge recorded his name. (43) Similarly, another voter who refused to remove or conceal his Tea Party shirt was stopped while voting and cautioned that failure to comply could result in prosecution. (44) Finally, the aforementioned Andrew Cilek wore both a Tea Party shirt and a "Please I.D. Me" button to the polls. (45) He was twice disallowed to vote by election judges, and it took over five hours at the polls before he was allowed to cast his ballot. (46)

   In other cases, though, voters with similar apparel were permitted to vote without incident. For instance, Dorothy Fleming, another plaintiff in the case, wore a "Please I.D. Me" button but was never asked to take it off or conceal it. (47) Some voters were permitted to cast their ballots while wearing attire representing the Sierra Club (which endorses candidates for public office) and Minnesota Common Cause (which lobbies for electoral reforms). (48) Some members of EIW claimed they wished to wear political apparel to vote on Election Day but declined to do so out of fear of potential prosecution. (49)

   Legal action continued after the election passed, with the EIW coalition maintaining that the law was unconstitutional and that its application to voters during the 2010 election violated the First Amendment. (50) The U.S. District Court granted the state's motion to dismiss in 2011. (51) The Court of Appeals for the Eighth Circuit affirmed this decision in part and reversed it in part in 2013. (52) After the district court granted a summary...