Norris

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

BRYAN NORRIS and

NORRIS FOR ARKANSAS PLAINTIFFS

V. CASE NO. 5:26-CV-5005

TIM GRIFFIN, in his official capacity

as Attorney General of Arkansas, and

COLE JESTER, in his official capacity

as Secretary of State of Arkansas DEFENDANTS

MEMORANDUM OPINION AND ORDER

Bryan Norris, a candidate for the Republican Party’s nomination for Arkansas

Secretary of State, seeks to permanently enjoin enforcement of Act 728 of 2021

(Arkansas Code § 7-1-103(a)(24)), which prohibits entering or remaining in an area within

100 feet of a polling location except for purposes of voting. Defendants Tim Griffin and

Cole Jester (the “State”) now move for Judgment on the Pleadings (Doc. 47), which Mr.

Norris and his campaign oppose (Doc. 53). In the meantime, Mr. Norris and his campaign

moved for leave to file an amended complaint (Doc. 52) to which the State filed no

response. The Court also requested—and the parties submitted—supplemental briefing

on whether Mr. Norris continues to have standing to bring his case. See Docs. 54 & 55.

For the reasons below, the Motion for Judgment on the Pleadings (Doc. 47) is GRANTED,

and Mr. Norris’s Motion for Leave to File an Amended Complaint is DENIED because

amendment would be futile.

I. BACKGROUND

A. Act 728

In 2021, the Arkansas General Assembly enacted Act 728, codified at Ark. Code.

Ann. § 7-1-103(a)(24), which provides that “[a] person shall not enter or remain in an area

within one hundred feet (100’) of the primary exterior entrance to a building where voting

is taking place except for a person entering or leaving a building where voting is taking

place for lawful purposes.”

Act 728 was motivated by alleged complaints that nonpartisan organizations and

their employees were electioneering and disrupting polling operations under the guise of

“voter support” efforts. The complaints stated that groups were handing out food and

water to voters, but the legislature’s concerns swept broader. As one supporter of the bill

noted during debate, the Act was intended to create a 100-foot “sacred zone” to prevent

electioneering from occurring “under the pretense of goodwill.” See Doc. 44-7, pp. 4–5.

Justifications for the 100-foot safe zone included: “preventing voters from being harassed

or blocking an entrance,” id. p. 6; upholding “election integrity at every single level,” id. p.

8; and preventing people from congregating around the polling site, (Doc. 44-8, p. 8).

Although legislators recognized during the debate that much of the allegedly partisan

activity that was the basis for the citizen complaints was already prohibited by Arkansas’s

electioneering statute, they nonetheless justified Act 728 as a precautionary measure

made necessary by the difficulties of enforcing the statute already on the books. Senator

Jason Rapert spoke in favor of Act 728 because “it’s hard to stop” electioneering when

someone claims to be nonpartisan, so it was unfortunately necessary to bar the activity

“wholly altogether.” (Doc. 44-7, p. 10). Representative Karilyn Brown made clear that the

conduct the legislature was concerned about was not organizations “passing out water or

sandwiches” which formed the basis of the citizen complaints, but instead all activities

which “quite easily could be electioneering,” as poll workers have “their hands full”

enforcing election statutes. (Doc. 44-8, pp. 4–5).

Act 728 has since been enforced against two individuals—Conrad Reynolds and

Dustin Black—who the State has alleged were advocating for the use of paper ballots

under the guise of “exit polling” thirty feet from a polling location. See Doc. 44-9.

B. This Case

Plaintiff Bryan Norris is a candidate for Arkansas Secretary of State. See Doc. 19,

p. 8 n.1. He sought the Republican Party’s nomination for that office during the March 3,

2026 primary election. Mr. Norris filed this lawsuit on January 8, 2026, asserting a

violation of his First Amendment rights. See Doc. 2. Mr. Norris simultaneously moved to

preliminarily enjoin the State’s enforcement of Act 728 against him so that he could

conduct exit polling in the primary, arguing that Act 728 as applied runs afoul of the First

Amendment. After an evidentiary hearing on February 26th, the Court denied his motion.

See Doc. 39.

Mr. Norris then finished first in the March 3 primary election. (Doc. 44, ¶ 1).

However, because no candidate obtained a majority of votes, the election proceeded to

a runoff. Id. Mr. Norris then filed an Amended Complaint, and the State filed its Motion

for Judgment on the Pleadings. (Docs. 44, 47).

In the end, Mr. Norris lost the March 31, 2026, runoff election. Nonetheless, he

has made plans to conduct exit polling during the November 3, 2026 general election. As

alleged in Mr. Norris’s proposed Second Amended Complaint, he also plans to seek the

Republican nomination for Arkansas Secretary of State during the March 5, 2030, primary

election, and he intends to keep his state campaign committee active for that reason.

For the November 3, 2026, general election, Mr. Norris has entered into a contract

with Arkansas Voter Integrity Initiative, Inc. to conduct exit polling in at least seven

Arkansas counties: Benton, Craighead, Faulkner, Pulaski, Saline, Sebastian, and

Washington. See Doc. 52, p. 27. Arkansas Voter Integrity Initiative Inc.’s President is

Conrad Reynolds, one of the two individuals who Act 728 was previously enforced against

for his alleged electioneering under the auspices of exit polling. Under the agreement

with Mr. Norris and his campaign, Arkansas Voter Integrity Initiative will publish the results

of its exit polling on its website and X.com account and make the results available to

Arkansas-based news outlets that wish to publish the organization’s exit polling

outcomes. Id. The agreement requires Arkansas Voter Integrity Initiative to conduct at

least one hour of training on the rules and regulations applicable to conduct surrounding

polling places on election day. Among other things, the training emphasizes that exit

pollsters should not electioneer or impede voters’ access to a polling place. Id. at p. 28.

II. LEGAL STANDARD

A party seeking a judgment on the pleadings under Federal Rule of Civil Procedure

12(c) will be granted relief when “the moving party has clearly established that no material

issue of fact remains and the moving party is entitled to judgment as a matter of law.”

Waldron v. Boeing Co., 388 F.3d 591, 593 (8th Cir. 2004).

Motions for judgment on the pleadings under Rule 12(c) are governed by the same

legal standard that applies to motions to dismiss under Rule 12(b)(6). See Westcott v.

City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). To survive a motion to dismiss, a

complaint must provide “a short and plain statement of the claim that [the plaintiff] is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this requirement is to “give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)). The Court must accept all factual allegations in a complaint as true and

construe them in the light most favorable to the plaintiff, drawing all reasonable inferences

in the plaintiffs’ favor. See Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

When considering a motion under Rule 12(c) the Court’s review is generally confined to

the pleadings, but it may also consider “some materials that are part of the public record

or do not contradict the complaint” and materials that are “necessarily embraced by the

pleadings.” Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citing

5A Wright & Miller’s Federal Practice & Procedure § 1357, at 299 (2d. ed. 1990)).

III. DISCUSSION

A. Standing

The first issue before the Court is whether there remains a justiciable controversy

for the Court to decide with Mr. Norris having lost the March 2026 primary. See Whitfield

v. Thurston, 3 F.4th 1045, 1047 (8th Cir. 2021) (“Under Article III of the Constitution, we

may adjudicate only actual, ongoing cases or controversies. When the issues presented

in a case are no longer live, the case is moot and is therefore no longer a ‘Case’ or

‘Controversy’ for purposes of Article III.” (citation omitted)). Both parties agree—as does

the Court—that Mr. Norris continues to have standing to bring this action as a result of his

plans to exit poll during the 2026 general election and 2030 primary.

B. Act 728 Regulates Speech

The First Amendment protects the people from laws “abridging the freedom of

speech.” That commitment is perhaps at its greatest for speech concerning public

affairs—the “essence of self-government”—the protection of which embodies our

“profound national commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)

(citation modified). But not all laws are put to First Amendment review: non-expressive

conduct, for example, is not protected by the Free Speech Clause. See Redlich v. City

of St. Louis, 51 F.4th 283, 288 (8th Cir. 2022) (“The Supreme Court has extended First

Amendment protection only to conduct that is inherently expressive.”) (citation omitted).

Sometimes, a law will regulate speech, conduct, or both at the same time. Even

ostensibly neutral statutes that do not distinguish between speakers or viewpoints can

still operate to restrict speech: For example, statutes which are “directed at activity with

no expressive component” but “impose a disproportionate burden upon those engaged in

protected First Amendment activities” are sometimes subject to First Amendment scrutiny.

See Tiktok Inc. v. Garland, 604 U.S. 56, 68 (2025) (quoting Arcara v. Cloud Books, Inc.,

478 U.S. 697, 703–04 (1986)). The Court’s determination is based on the “particular

activity in which an actor seeks to engage.” Ness v. City of Bloomington, 11 F.4th 914,

923 (2021).

The State contends that Act 728 regulates only conduct, not speech, and the

conduct that it does regulate is not inherently expressive. The State’s argument, however,

appears to treat the issue as if Mr. Norris is challenging Act 728 on its face (i.e., he is

attempting to establish that no set of circumstances exist under which it would be valid)

and not challenging Act 728 as it is applied against him. The distinction is important

because the State relies principally on Virginia v. Hicks, 539 U.S. 113, 123 (2003) for the

proposition that Act 728 does not implicate the First Amendment, a case that involved an

overbreadth challenge to a Virginia trespassing statute. But as the Supreme Court

explained there, “[t]he First Amendment doctrine of overbreadth is an exception to our

normal rule regarding the standards for facial challenges.” Id. (emphasis added). Hicks’s

reasoning is inapplicable here, where Mr. Norris does not seek to invalidate “all

enforcement of [Act 728].” Id.

The State argues in the alternative that if the First Amendment does come into play

under Act 728, it is because Act 728 regulates expressive conduct. There is at least some

question here, as exit polling does combine “speech” and “nonspeech” elements in the

same course of conduct, which is required for the “relatively lenient standard” outlined in

United States v. O’Brien, 391 U.S. 367 (1968) to apply. See Texas v. Johnson, 491 U.S.

397, 407 (1989).1 Yet O’Brien applies only “to those cases in which ‘the governmental

interest is unrelated to the suppression of free expression,’” which is plainly not the case

here. The State justifies Act 728 as an “anti-influence prohibition” meant to ensure that

voters are free from “intimidation, threat, improper influence, or coercion.” How, then, can

one ‘influence' another person’s beliefs or conduct without communicating or expressing

1 Under O’Brien, government regulation of conduct is justified where it is “within the

constitutional power of the Government,” “furthers an important or substantial government

interest,” where the interest is “unrelated to the suppression of free expression,” and “if

the incidental restriction on alleged First Amendment freedoms is no greater than is

essential to the furtherance of that interest.” O’Brien, 391 U.S. at 377.

a message? At least in the case of Mr. Norris’s proposed exit polling, “these [anti-

influence] concerns blossom only when” the exit pollster “communicates some message,

and thus are related ‘to the suppression of free expression’ within the meaning of O’Brien.”

Id. Indeed, Act 728’s prophylactic attempts to address electioneering make sense only if

the Act is seeking to prioritize some speech and expression over others—here, the State

has prioritized the right to vote over the right of campaigns and pollsters to communicate

with and influence voters.

The Court thus comes to the easy conclusion that, at least as applied to Mr. Norris,

Act 728 regulates speech.

C. Act 728 is Constitutional

Having determined that Act 728 regulates speech, the Court must next determine

the appropriate level of constitutional scrutiny to apply. Because the ban applies only in

a specific location (the 100 feet surrounding a polling place), the Court must first

determine the speech’s forum. See Int’l Soc. For Krishna Consciousness, Inc. v. Lee,

505 U.S. 672, 678 (1992) (when the government seeks to place restrictions on its

property, courts conduct forum based First Amendment analysis). The law recognizes

three types of government-controlled spaces, or forums: “traditional” public forums,

traditionally used for public communication, “designated” public forums, which have been

intentionally opened up for that purpose, and “nonpublic” forums, which are “not by

tradition or designation a forum for public communication.” See Minnesota Voters

Alliance v. Mansky, 585 U.S. 1, 12 (2018). The notion of “tradition” in a traditional public

forum is ill-defined, and the Supreme Court has taken two approaches to try to give the

term some life—one looks to a forum’s purpose and function, see, e.g., Int’l Soc. For

Krishna Consciousness, 505 U.S., and the other to the forum’s historical use and

regulation, see, e.g., Burson v. Freeman, 504 U.S. 191 (1992).

As the State notes, Mr. Norris does not engage in forum-based analysis. The State

does only a cursory analysis, but urges the Court to adopt the view that the public

sidewalks and streets surrounding a polling place are nonpublic forums, at least on the

day of an election. If the State is correct, the Court applies a less stringent standard of

review because the government “no less than a private owner of property, retains the

power to preserve the property under its control for the use to which it is lawfully

dedicated.” Mansky, 585 U.S. at 12 (cleaned up).

While the Supreme Court has determined that on Election Day, the interior of a

polling location is a nonpublic forum, it has yet to definitively determine whether the “public

sidewalks and streets surrounding a polling place qualify as a nonpublic forum.” Id. On

non-election days, these areas occupy a “special position in terms of First Amendment

protection because of their historic role as sites for discussion and debate.” McCullen v.

Coakley, 573 U.S. 464, 476 (2014). They enjoy this status because they have

“immemorially been held in trust for the use of the public land and, time out of mind, have

been used for purposes of assembly, communicating thoughts between citizens, and

discussing public questions.” Hague v. Committee for Indus. Organization, 307 U.S. 496,

516 (1939). But although Justice Roberts in Hague gave public sidewalks and streets

pride of place as the first public forum so-recognized by the Supreme Court, there was

always a problem: no historical analysis was done in Hague, and it is unclear whether

sidewalks and streets have actually been held in public trust “immemorially,” or just since

1939 when the case was decided. Moreover, Hague offers little help where the historical

record is mixed or where regulation has evolved over time, as it has here.

Justice Scalia’s concurrence in Burson tackles this issue head on. Although Hague

propped up the sidewalk and public street as the quintessential public forum, statutes like

Act 728 have a “long history of general use,” at least post-Reconstruction. Burson, 504

U.S. at 215. “By 1900 [39 years before Hague was decided], at least 34 of the 45 States

. . . had enacted” viewpoint neutral restrictions on election day-speech within a specified

distance of a polling place. Id. Thus, as Justice Scalia concluded, the “streets and

sidewalks around polling places have traditionally not been devoted to assembly and

debate.” Id. The Supreme Court has determined too that not every street or sidewalk is

a public forum—sidewalks on military bases, for example, are nonpublic forums because

the notion that they have “traditionally served as a place for free public assembly and

communication of thoughts by private citizens” is “historically and constitutionally false.”

Greer v. Spock, 424 U.S. 838, 838 (1976). Even the Burson plurality, which determined

in passing that sidewalks surrounding election locations are public forums, noted that by

1896, almost 90 percent of States had transitioned from a system where voters cast public

paper ballots surrounded by partisans—something like a fan in a burnt orange Longhorn

jersey wading through a sea of red at Razorback stadium—to a secret ballot system.

Burson, 504 U.S. at 202. If there was a tradition of public assembly outside of election

places, States did their best to end that tradition before the start of the 20th century.

The Court therefore concludes that, like the interior of a polling location, the area

surrounding it on election day is a nonpublic forum. As a nonpublic forum, the State must

meet only a lenient standard: The government “may reserve such a forum for its intended

purposes, communicative or otherwise, as long as the regulation on speech is reasonable

and not an effort to suppress expression merely because public officials oppose the

speaker’s view.” Mansky, 585 U.S. at 12 (emphasis added). Both sides agree that Act

728 does not suppress expression based on a speaker’s view, i.e., it is content neutral.

See Doc. 6, p. 9 and Doc. 48, p. 8. The only question, as applied to Mr. Norris, is thus

whether Act 728’s ban on exit polling is “reasonable in light of the purpose served by the

forum: voting.” Mansky, 585 U.S. at 13. As the Court previously concluded, the answer

is yes. “Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a

representative’s vote on a piece of legislation.” Id. at 15. The problems of “fraud, voter

intimidation, confusion, and general disorder” undermine the public’s ability to and

confidence in their vote, and the State was within its constitutional limits in deciding that

the time a voter spends in the 100 feet around a polling location should be a citizen’s

“own, as free from interference as possible.” Id. at 13–14.

But, Mr. Norris counters, this was not what the legislature was concerned about:

he contends that the only concern expressed by legislators was “the need to counter the

concrete problem of ostensibly non-partisan groups who had recently conducted covert

electioneering while handing out food and drinks to people standing in line to vote.” (Doc.

53, p. 17). Exit polling was not discussed, and the State cannot now defend Act 728 on

post-hoc justifications concocted in litigation.

The Court’s view, however, is that Mr. Norris misreads the legislative record. Mr.

Norris is correct that no legislator mentioned exit polling during debates on Act 728, but

this is of no consequence. The legislature need not address every conceivable

application of a law for it to pass constitutional muster. And the concerns that the State

now relies on—preventing intimidation, threat, improper influence, or coercion of voters—

is exactly what the legislature discussed, even if the impetus for the discussion was

groups handing out food and water rather than exit polling. As mentioned above,

proponents of the bill discussed creating a 100-foot “sacred zone” to prevent

electioneering from occurring “under the pretense of goodwill.” See Doc. 44-7, pp. 4–5.

Justifications given for the zone included “preventing voters from being harassed or

blocking an entrance,” id. p. 6; upholding “election integrity at every single level,” id. p. 8;

and preventing people from congregating around the polling site, (Doc. 44-8, p. 8).

Senator Rapert spoke in favor of Act 728 because “it’s hard to stop” electioneering when

someone claims to be nonpartisan, so it was unfortunately necessary to bar the activity

“wholly altogether.” (Doc. 44-7, p. 10). Representative Brown made clear that the

conduct the legislature was concerned about was not organizations “passing out water or

sandwiches” which formed the basis of the citizen complaints, but instead all activities

which “quite easily could be electioneering,” as poll workers have “their hands full”

enforcing election statutes. (Doc. 44-8, pp. 4–5).

It is simply not the case, then, that the Court must look beyond the evidence

attached to the Amended Complaint to find that the State’s justifications for passing Act

728 were exactly of the sort described in Burson. No legislator need use the words “this

is an anti-influence statute” for the Court to conclude from their statements that this was,

in fact, the thrust of their concerns.2 And as Mr. Norris admits, Arkansas legislators are

2 For clarity, the Court is not relying on and need not rely on any evidence related to Mr.

Reynolds’s post-enactment arrest to make this determination. The law is clear that a

State’s political system need not “sustain some level of damage before the legislature

[can] take corrective action. Legislatures . . . should be permitted to respond to potential

deficiencies in the electoral process with foresight rather than reactively . . . .” Burson v.

not required to present “elaborate, empirical verification of the weightiness of their

asserted justifications” to justify their asserted regulatory interest. Miller v. Thurston, 967

F.3d 727, 740 (8th Cir. 2020) (cleaned up). Act 728’s justifications were what the State

says they were, and they meet the low bar for reasonableness in light of the forum’s

purpose (voting).3

Even under the stricter standard applicable to traditional public forums, though, Act

728 is constitutional.4 In traditional public forums, the government may impose

reasonable time, place, and manner restrictions on expressive activity so long as the

restrictions are “content neutral, are narrowly tailored to serve a significant governmental

interest, and leave open ample alternatives for communication.” Burson v. Freeman, 504

U.S. 191, 197 (1992). Act 728 meets these requirements.

As discussed, both parties agree that Act 728 is content neutral. A law is facially

content-based when it “applies to particular speech because of the topic discussed or the

Freeman, 504 U.S. 191, 209 (1992). Mr. Norris’s strategic choice to tether his case to

one of only two people arrested for allegedly electioneering under Act 728 (and to then

contract with Mr. Reynolds for Mr. Reynolds to conduct exit polling) is a bit puzzling, but

of no consequence to this Order.

3 Mr. Norris’s opposition argues that his allegations that “exit polling does not disrupt the

voting process, and that exit polling at a 100-foot distance is not viable) must be taken as

true for purposes of this Order. If this argument is correct, this would affect the Court’s

analysis of whether the regulation is reasonable under the test for regulations in nonpublic

forums (and multiple factors in the Court’s time, place, and manner analysis). But the

Court need not accept the allegations as true both because (1) Mr. Norris did not plead

this; and (2) even if he had, it is not a well-pleaded fact, but a legal conclusion couched

as a fact. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (“A court considering a motion to

dismiss may begin by identifying allegations that, because they are mere conclusions,

are not entitled to the assumption of truth.”) Although Mr. Norris does allege that pollsters

are instructed not to interfere with the election process, he does not allege that exit polling

itself does not disrupt or interfere with the election process. See Doc. 44, ¶¶ 14–15.

4 The Court’s analysis that follows is largely duplicative of its prior order on Mr. Norris’s

motion for a preliminary injunction. See Doc. 39.

idea or message expressed.” Tiktok Inc. v. Garland, 604 U.S. 56, 70 (2025) (citing Reed

v. Town of Gilbert, 576 U.S. 155, 163 (2015)). Act 728 does not “target particular speech

based upon its content.” Id. at 71. It does not “impose a restriction, penalty, or burden

by reason of content” on Mr. Norris or his campaign, nor can he and his campaign “avoid

or mitigate” the effects of Act 728 by altering their speech. Id. Nothing about the Act

regulates speech “because of the topic discussed, or the idea or message expressed.”

Id. The Act also does not restrict based on the identity of the speaker, with the exception

of providing a carve-out for would-be voters. It does not distinguish between political

speakers and other speakers, but instead forbids essentially all activity within 100 feet of

a polling location. See McCullen, 573 U.S. at 465 (finding a geographic buffer zone

around abortion clinics content neutral because “whether petitioners violate the Act

depends not on what they say but simply on where they say it”) (citation modified). The

Act is clearly content neutral.

Act 728 also serves a significant government interest. As the Burson Court

explained, regulations that impose restricted areas in or around polling places arise from

issues in our country’s earliest elections. During the colonial period, government officials

were elected through a public show of hands, which presented opportunities for “bribery

and intimidation” that led to its repeal. Burson, 504 U.S. at 200. States switched to paper

ballots in response, but over time, political parties began to produce their own ballots for

voters marked with “flamboyant colors, distinctive designs, and emblems” so that they

were easily recognizable at a distance. Id. The earlier problems of bribery and

intimidation thus “reinfected the election process,” as vote buyers could watch voters as

they placed the ballot in the polling box to ensure their bribe was effective. A voter’s

experience at the ballot box was marked by “party ticket peddlers” engaged in heated

competition, and all-in-all “these early elections were not a very pleasant spectacle for

those who believed in democratic government.” Id. at 202 (citation modified).

In the years that followed, countries across the world moved to the “Australian

system” of voting, which provided for an official ballot with all candidates as well as polling

booths open only to election officials, election monitors, and voters. Id. at 203. This

system of restriction—intended to prevent “bribery, intimidation, disorder, and inefficiency

at the polls”—made its way to the Untied States in 1888 as Louisville, Kentucky, the

Commonwealth of Massachusetts, and the State of New York adopted the Australian

system. Id. Massachusetts and New York only restricted the public from entering the six-

foot area surrounding the voting compartments under the theory that it provided

“additional monitoring by members of the general public and independent candidates,

who in most States were not allowed to be represented by separate inspectors.” Id. at

204. The New York statute, like Arkansas before Act 728, also prohibited any person from

“electioneering on election day within any polling place, or within one hundred feet of any

polling place.” Id.

But as Burson recognizes, the Massachusetts and New York laws were but one

choice among the many available. The Louisville law “prohibited all but voters,

candidates, or their agents, and electors from coming within 50 feet of the voting room

inclosure,” or, in other words, prohibited more than just electioneering. Id. Similar laws

were enacted across the United States, and “by 1896, almost 90 percent of the States

had adopted the Australian system.” Tennessee, like Louisville, Kentucky, initially forbid

everyone but voters and certain election officials from being “within 50 feet of the

entrance” of the polling location in order to “secure the purity of its elections.” Id. at 205.

So although Burson only dealt with statutes that forbid electioneering within 100

feet of a polling location, it also recognized that bills like Act 728 are rooted in our nation’s

history and tradition. Although the Burson court held—in response to an argument that

the statute at issue there was underinclusive—that there was “simply no evidence that

political candidates have used other forms of solicitation or exit polling to commit such

electoral abuses,” it certainly did not reach the issues in this case. Id. at 207. As Burson

recognized, intimidation and interference with voters may often go undetected and may

drive away voters before remedial action can be taken. Id. at 205–06. Rerunning an

election can negatively impact voter turnout, and the Supreme Court does not

“necessitate that a State’s political system sustain some level of damage before the

legislature [can] take corrective action.” Id. at 209. Moreover, “intimidation and

interference laws” (or in this case, electioneering laws) “fall short of serving a State’s

compelling interests because they deal with only the most blatant and specific attempts

to impede elections.” Id. at 207 (citation modified). Burson cautioned that in election

cases in particular, States need not prove that their regulations are “perfectly tailored to

deal with voter intimidation and election fraud,” because without prophylactic regulation,

the State is left to deal with a tainted election, potentially reduced voter turnout, and

damage to the political system. Id. at 209.

The State’s interests in preventing fraud and interference in elections are

undoubtedly significant in light of Burson’s warnings. And, in any event, the Court sees

no basis for rejecting Arkansas determination that the polling place (and its immediate

vicinity) should be an “island of calm in which voters can peacefully contemplate their

choices.” Mansky, 585 U.S. at 15.

Finally, Act 728 is narrowly tailored towards that interest and leaves open ample

alternatives for communication. “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.” McCullen, 573 U.S. at 486 (citation

modified). These regulations “need not be the least restrictive or least intrusive means of

serving the government’s interests,” but the government “may not regulate expression in

such a manner that a substantial portion of the burden on speech does not serve to

advance its goals.” Id. (citation modified) (emphasis added). The Court again notes that,

in the context of voter regulations, a State’s burden of proof is relaxed. Burson, 504 U.S.

at 208–09. And like in Burson, the Court finds that both history and common sense

indicate that Arkansas has sufficiently tailored its Act to protect speech rights. Id. at 211.

Under Act 728, exit pollers, refreshment purveyors, and any other speakers remain

free to influence voters beyond the 100-foot mark. The Court is not persuaded by

Plaintiffs’ affidavits which suggest exit polling beyond 100 feet is not viable, nor does the

Court accept this as a well-pleaded “fact” that must be accepted as true by the Court.

(Docs. 44-2, 44-3). To the extent exit polling provides accurate information about the

electorate, the Court disagrees that whatever marginal impact Act 728 might have on exit

polling accuracy overrides Arkansas’s interest in free and fair elections. One-hundred

feet is six feet longer than a standard basketball court, roughly a third of a football field,

and in many locations in Arkansas, likely no further than the walk from the polling location

to the parking lot. Although Act 728 might complicate matters for Mr. Norris and his

campaign, the Court is not persuaded that it closes off all avenues of communication.

While there may of course be some distance where Act 728 would present an

impermissible burden on speech, “it is sufficient to say that in establishing a 100-foot

boundary, [Arkansas] is on the constitutional side of the line.” Burson, 504 U.S. 211.

To be clear, nothing in this opinion should be read to suggest that the Court

believes the legislature’s decision here to be wise. But in our system, judges and courts

are meant to be “loyal adherents of the democratic idea, the sovereignty of a people

expressing itself by representatives,” and not wielders of “double axes” with one edge in

“control over legislation by its unconstitutionality” and in the other “such free interpretation

of statutes as suits their purposes.” Learned Hand, Book Review, 37 Pol. Sci. Q. 149,

149 (1922) (reviewing Edouard Lambert, Le Gouvernement Des Juges Et La Lutte Contre

La Législation Sociale Aux États-Unis (1921)). While there is “[n]o doubt our doctrine of

constitutional law has had a tendency to drive out questions of justice and right,” courts

must leave to the legislature the “great range of possible harm and evil” they are entrusted

with, else the government be made “petty and incompetent” by the checking and cutting

down of legislative power. James B. Thayer, The Origin and Scope of the American

Doctrine of Constitutional Law, Harv. L. Rev. 129, 155–56 (1893). Should the people of

Arkansas decide that Act 728 is constitutional but unjust, they and their representatives

have the power and responsibility to repeal it. “Under no system can the power of courts

go far to save a people from ruin; our chief protection lies elsewhere.” Id.

As the statute here passes constitutional muster, the Court’s role is at its end.

Under either the nonpublic forum analysis adopted by the Court here or the more stringent

standard applicable to public forums, Act 728 is constitutional. The State’s Motion for

Judgment on the Pleadings (Doc. 47) is GRANTED.

Finally, Mr. Norris has filed a motion for leave to amend his complaint. The

proposed Second Amended Complaint adds new allegations that discuss the results of

the 2026 primary election and clarify Mr. Norris’s intentions to seek the Republican

nomination for Arkansas Secretary of State in 2030, his plans to exit poll during the 2026

general election, and the means by which he will conduct that exit polling. Because the

Second Amended Complaint is legally infirm for the same reasons as the First Amended

Complaint—explained above—amendment would be futile. As such, Mr. Norris’s Motion

for Leave to File an Amended Complaint (Doc. 52) is DENIED.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Motion for Judgment on the

Pleadings (Doc. 47) is GRANTED; Mr. Norris’s Motion for Leave to File an Amended

Complaint (Doc. 52) is DENIED.

IT IS SO ORDERED on this 1° day of June, 2026.

CHIEF UNITED STATES DISTRICT JUDGE

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