From Clamor to Calm: Restrictions on Speech at Polling Places

From Clamor to Calm: Restrictions on Speech at Polling Places

Legal Sidebari

From Clamor to Calm: Restrictions on Speech
at Polling Places
June 18, 2018
The Supreme Court recently issued its decision in Minnesota Voters Alliance v. Mansky, ruling on the
constitutionality of a Minnesota statute that banned all “political” apparel from polling places. The Court
acknowledged that courts should generally “respect” state laws that attempt to afford “the voter the
opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering,” but
ultimately held that the specific Minnesota provision challenged in that case violated the First
Amendment—even after reviewing it under the relatively forgiving standard of “reasonableness.” The
Court’s opinion may have significant implications for the government’s ability to ban political speech in
certain forums and, even more immediately, may cast doubt on other state laws regulating speech at
polling places.
Background
The provision of the Minnesota statute challenged in this case provides that “a political badge, political
button, or other political insignia may not be worn at or about the polling place on primary or election
day.” Essentially, it prohibits voters from wearing any “political” apparel at polling places. Although the
statute itself does not further define what types of apparel qualify as “political,” state election officials
issued guidelines providing examples of prohibited political items in the run-up to the November 2010
elections. The state gave election judges stationed at the polling places the “authority to decide what is
‘political.’” These guidelines identified as “political” any items that included the names of specific
political parties and candidates, but also included “issue oriented” materials, along with materials
“promoting a group with recognizable political views (such as the Tea Party, MoveOn.Org, and so on).”
On the day of the November 2010 elections, members of the Minnesota Voters Alliance either wore or
wanted to wear political apparel to their polling places. But pursuant to the statute prohibiting political
insignia, some voters wearing Tea Party shirts and buttons that read “Please I.D. Me” were told by
workers at their polling places to cover their shirts—or risk being prosecuted under that statute.
Minnesota Voters Alliance filed suit, arguing that this statute violated the First Amendment.
The Court previously considered the issue of free speech at polling places in the 1992 case Burson v.
Freeman. In Burson, the Court upheld a Tennessee statute prohibiting campaign materials outside of
polling places. Four members of the Court recognized that this prohibition implicated “three central
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concerns in our First Amendment jurisprudence: regulation of political speech, regulation of speech in a
public forum, and regulation based on the content of the speech.” Under First Amendment law, sidewalks
and streets, like those outside polling places, are usually considered traditional “public forums” in which
“the rights of the State to limit expressive activity are sharply circumscribed.” Because the Tennessee law
was “a facially content-based restriction on political speech in a public forum,” a plurality of the Court
concluded that it was subject to strict scrutiny, meaning that the state had to show that its law was
“necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.” In one of the
few Supreme Court free speech decisions to uphold a law that was subject to strict scrutiny, the four
Justices held that the state had met this burden.
Justice Scalia provided the fifth vote to uphold the Tennessee law, but he disagreed with the plurality’s
application of the law governing forums. In his concurring opinion, Justice Scalia argued that the area
outside a polling place is not a traditional public forum because “restrictions on speech around polling
places on election day are as venerable a part of the American tradition as the secret ballot.” In his view,
the Tennessee statute was not subject to strict scrutiny. Instead, he argued that the state could restrict
speech at polling places so long as the restrictions were “reasonable and viewpoint neutral.”
Decision in Minnesota Voter’s Alliance v. Mansky
Minnesota Voter’s Alliance consciously drew from Burson in recognizing the important state interest in
regulating polling places. The Court began its opinion by reviewing the history of polling places in
America, examining the conditions that spurred states to pass statutes restricting speech at polling places
during elections. After accepting the parties’ agreement that Minnesota’s “political apparel ban applies
only within the polling place,” the Court concluded that the interiors of Minnesota polling places are best
characterized as “nonpublic” forums. Thus, the Minnesota law was distinct from the Tennessee law at
issue in Burson, which also applied to the area outside polling places, an area that the Burson plurality
viewed as a traditional public forum. In a nonpublic forum, unlike a traditional public forum, the
government can impose content-based restrictions on speech, so long as they are reasonable and not
imposed solely because a public official opposes the speaker’s view. Ultimately, however, the Minnesota
Voters Alliance Court concluded that Minnesota’s law failed even this more lenient test.
Writing for seven members of the court, Chief Justice Roberts first held that states may reasonably
regulate the interior of the polling place in order for it to reflect the calm, deliberative nature of the act of
voting, including by excluding “some forms of advocacy . . . from the polling place” and protecting the
voter “from the clamor and din of electioneering.” The Court stated that “Minnesota may choose to
prohibit certain apparel there because of the message it conveys, so that voters may focus on the
important decisions immediately at hand.”
However, the Court held that Minnesota’s ban on all “political” apparel was unreasonable and therefore
unconstitutional. The majority opinion emphasized that the word political was undefined in the statute
and could be read expansively, noting that it could cover “a button or T-shirt merely imploring others to
‘Vote!’” And the guidelines interpreting that statute, issued by the state leading up to the 2010 elections,
“raise[d] more questions than [they] answere[d],” in the view of the Court. The majority held that the law
failed to provide “objective, workable standards” to guide the discretion of the election judges who
implemented the statute, raising the specter of arbitrary enforcement. Citing an exchange from oral
argument, the Court noted that, according to lawyers for the state, the law would apparently prohibit a
shirt displaying the text of the Second Amendment, but would allow a shirt with the text of the First
Amendment. The Court concluded that this “unmoored use of the term ‘political,’ . . . combined with
haphazard interpretations the State has provided in official guidance and representations to this Court,”
required it to declare the statute unconstitutional.

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Justice Sotomayor dissented in an opinion joined by Justice Breyer. She argued that the Court should have
certified the case to the Minnesota Supreme Court, asking the state court to provide “a definitive
interpretation” of the meaning of the disputed state statute. Certification of questions allows federal courts
“faced with a novel state-law question to put the question directly to the State’s highest court, . . .
increasing the assurance of gaining an authoritative response.” In Justice Sotomayor’s view, it was “at
least ‘fairly possible’” in this case “that the state court could” construe the statute in way that would be
“capable of reasoned application” and constitutional. She noted that the word “political” has been given
constitutionally permissible meanings in other contexts. Chief Justice Roberts, however, rejected this
contention, concluding that Minnesota had waited too long—seven years—to request certification and
had not “offered sufficient reason to believe that certification would obviate the need to address the
constitutional question.”
Implications of the Court’s Decision
All 50 states have some form of law that prohibits various types of electioneering at polling places, and
the Court’s decision could have significant implications for these laws. However, as the Court was careful
to note, not all laws reach as broadly as this Minnesota provision. In a footnote, the Court suggested that
states “may prohibit messages intended to mislead voters about voting requirements and procedures.”
States will likely argue that more narrow proscriptions on election-day speech within the polling place
can survive the Court’s opinion, and should instead be judged as constitutional under the precedent of
Burson and the broader language in this opinion. For example, a state might try to distinguish a statute
that prohibits specific electioneering activities like verbally expressing support for or opposition to
particular candidates, or even one that more narrowly bars wearing any insignia “that is designed or tends
to aid or promote the success or defeat of any candidate or ballot issue to be voted upon at the election.”
Even other portions of the Minnesota statute itself remain standing after this decision—although they
could always be subject to future legal challenges.
But the significance of this decision likely reaches beyond electioneering laws. The Court added to its
“forum” jurisprudence by clarifying that a polling place, “set aside for the sole purpose of voting” and
subject to strict rules governing its use, qualified as a “nonpublic forum.” Other forums previously
characterized by the Court as “nonpublic” include a sidewalk owned by the Postal Service, a school
system for internal mail, and a public television debate between candidates for a congressional seat.
However, unlike most cases evaluating speech restrictions in nonpublic forums, the Court here struck
down the challenged law. In one prior case, the Supreme Court upheld a government ban on “political
advertising” in the nonpublic forum of ad space on public transit. The Court’s decision in Minnesota
Voters Alliance, holding that the state law violated the First Amendment, was unusual in light of the
permissiveness of the reasonableness standard that applies in nonpublic forums. Future litigation will
determine whether this more rigorous application of the test for reasonableness will spill over into other
nonpublic forums, or whether it will instead be limited to speech restrictions that aim to protect “the right
to vote—a right at the heart of our democracy.”

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Author Information

Valerie C. Brannon

Legislative Attorney

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