Marlin v. District of Columbia Board of Elections & Ethics

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2000 Decided January 19, 2001

No. 99-7206

David H. Marlin,

Appellant

v.

District of Columbia Board of Elections and Ethics,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 98cv02566)

Robert K. Kelner argued the cause for the appellant.

Mark H. Lynch was on brief. Michael A. Dawson entered

an appearance.

Rudolph McGann Jr. argued the cause for the appellee.

Kenneth J. McGhie was on brief.

Before: Henderson, Randolph and Garland, Circuit

Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: David H. Mar-

lin appeals the district court's grant of summary judgment to

the District of Columbia Board of Elections and Ethics

(Board). Marlin brought this action alleging the Board's

enforcement of polling place regulations to prohibit him from

wearing a campaign sticker into his polling place on election

day violates the First Amendment to the United States

Constitution. We agree with the district court that the

Board's enforcement reflects reasonable, viewpoint-neutral

regulation of polling place speech and therefore does not

violate the First Amendment. Accordingly we affirm the

district court's summary judgment.

I.

The material facts are not in dispute. On September 15,

1998 Marlin, a resident and registered voter of the District of

Columbia (District), went to his polling place to vote in a

primary election while wearing a campaign sticker in support

of mayoral candidate Anthony Williams. When Marlin at-

tempted to turn in his completed ballot, an election worker

informed him he "could not cast his ballot while wearing the

sticker." Affidavit of David H. Marlin p 10. After a second

election worker accepted Marlin's ballot, the first worker told

Marlin he would not be permitted to vote in the general

election if he was wearing "any sticker, button, emblem, or

clothing that showed support for a candidate." Id. After the

primary Marlin and his counsel contacted the Board, which

told Marlin's counsel that the District's election regulations,

promulgated by the Board,1 prohibited voters from wearing

political paraphernalia inside a polling place but that, if

Marlin insisted on wearing a campaign sticker, he would be

__________

1 The Board is authorized by statute to promulgate regulations

governing conduct of elections. See D.C. Code Ann. s 1-1324.

permitted to vote curbside at the general election. Marlin

wore a sticker and voted curbside on November 3, 1998.

Meanwhile, on October 23, 1998 Marlin filed this action in

the district court challenging the Board's enforcement of the

regulations. In a memorandum opinion and order filed Sep-

tember 8, 1999 the district court granted summary judgment

in favor of the Board. Marlin appealed.

II.

Marlin challenges two District election regulations. The

first provides:

No partisan or nonpartisan political activity, or any other

activity which, in the judgment of the Precinct Captain,

may directly or indirectly interfere with the orderly

conduct of the election, shall be permitted in, on, or

within a reasonable distance outside the building used as

a polling or vote counting place.

3 D.C.M.R. s 708.4. The second defines "political activity" to

"include without limitation, any activity intended to persuade

a person to vote for or against any candidate or measure or to

desist from voting." 3 D.C.M.R. s 708.8. Marlin contends

the Board's enforcement of these regulations to prevent him

from wearing a political sticker when voting inside the polling

place is an unjustified restriction of his right to free expres-

sion under the First Amendment.2 The district court held

that the political activity ban is a reasonable viewpoint-

neutral regulation of a non-public forum and therefore does

not violate the First Amendment. We agree.

The United States Supreme Court has

__________

2 Although section 708.4 broadly prohibits political activity "in, on,

or within a reasonable distance outside" a polling place, Marlin

challenges the regulation only as applied, that is, to prevent him

from wearing the sticker inside the polling place. In addition, the

Board's counsel assured the district court that its policy is to

enforce the ban only "inside the polling place." JA 102.

identified three types of fora: the traditional public

forum, the public forum created by government designa-

tion, and the nonpublic forum. Traditional public fora

are those places which "by long tradition or by govern-

ment fiat have been devoted to assembly and debate."

[Perry Educ. Assn. v. Perry Local Educators' Assn., 460

U.S. 37, 45 (1983)]. Public streets and parks fall into this

category. See Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct.

954, 963, 83 L.Ed. 1423 (1939). In addition to traditional

public fora, a public forum may be created by govern-

ment designation of a place or channel of communication

for use by the public at large for assembly and speech,

for use by certain speakers, or for the discussion of

certain subjects. Perry Education Assn., supra, 460 U.S.,

at 45 and 46, n. 7, 103 S.Ct., at 955, n. 7. Of course, the

government "is not required to indefinitely retain the

open character of the facility." Id., at 46, 103 S.Ct., at

955.

Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S.

788, 802 (1985). A content-based regulation, such as the

District's, which restricts expression in either a traditional

forum or a designated forum will be upheld only if the state

shows it "is necessary to serve a compelling state interest and

that it is narrowly drawn to achieve that end." Perry Educ.

Ass'n, 460 U.S. at 45 (citing Carey v. Brown, 447 U.S. 455,

461 (1980)). By contrast, a restriction on speech in a non-

public forum is permissible so long as it is viewpoint neutral

and "reasonable in light of the purpose which the forum at

issue serves." Id. at 46-49.3

The forum here, the interior of a polling place, is neither a

traditional public forum nor a government-designated one. It

__________

3 Although Marlin argues that public forum analysis does not

apply to polling places because they are not "proprietary" to the

government, see Brief of Appellant at 9-12, Supreme Court prece-

dent establishes that the public forum analysis is appropriate. See,

e.g., Burson v. Freeman, 504 U.S. 191 (1992) (applying public forum

analysis to Tennessee statute prohibiting display of campaign mate-

rials in or near polling places).

is not available for general public discourse of any sort. The

only expressive activity involved is each voter's communica-

tion of his own elective choice and this has long been carried

out privately--by secret ballot in a restricted space. See

Burson v. Freeman, 504 U.S. 191, 201-06 (1992) (describing

early problems with voter fraud and intimidation in the

United States and the states' responses, including secret

ballot and restricted zones around polls). In the District of

Columbia specifically, the record demonstrates that at least

as early as 1960 the Board's regulations prohibited all "parti-

san political activity," either written or oral, "in any building

while it is in use as a polling place." JA 28. District

regulations also restrict election day activity at polling places

to "the conduct of the election" and limit polling place access

to Board representatives, police officers, duly qualified elec-

tion watchers, persons engaged in voting and others autho-

rized by the Board. 3 D.C.M.R. s 708.3. Given these long-

standing limitations on polling place speech, we do not see

how the polls can fairly be described either as "places which

'by long tradition or by government fiat have been devoted to

assembly and debate,' " or as places designated by the gov-

ernment "for use by the public at large for assembly and

speech, for use by certain speakers, or for the discussion of

certain subjects." Cornelius, 473 U.S. at 802. As the Su-

preme Court declared in Cornelius: "We will not find that a

public forum has been created in the face of clear evidence of

a contrary intent, nor will we infer that the government

intended to create a public forum when the nature of the

property is inconsistent with expressive activity." 473 U.S. at

803.

Having concluded that polling places are non-public fora,

we further conclude that the Board's enforcement of the

challenged election regulations constitutes reasonable view-

point-neutral regulation of expression within polling places.

In Burson v. Freeman, 504 U.S. 191 (1992), the petitioner

challenged similar but more extensive polling place restric-

tions in force in Tennessee. The challenged statutes prohibit-

ed "the display of campaign posters, signs or other campaign

materials, distribution of campaign materials, and solicitation

of votes for or against any person or political party or

position" within the polling building or 100 feet from its

entrance. The Burson majority concluded the regulation

satisfied at least the reasonableness test applied to regulation

of speech in non-public fora.4 The same result is compelled

here.5

Marlin does not dispute that the regulations, which apply to

all political activity, are viewpoint neutral. Nor does he

question the validity of the interests identified by the Board,

namely protecting "the orderly conduct of elections" by "cre-

ating a neutral zone within the polling place, preventing

altercations over hot-button issues, intimidation of voters,

eleventh hour smear campaigns and the like," Brief of Appel-

lee at 20-21 (emphasis original)--which interests parallel

those endorsed in Burson, namely protecting "the right of

[Tennessee's] citizens to vote freely for the candidates of their

choice" and safeguarding "the right to vote in an election

conducted with integrity and reliability," 504 U.S. at 198-99.

Marlin contends only that the broad ban is unnecessary to

prevent the evils the Board has identified. To pass constitu-

tional muster, however, regulation of speech in a nonpublic

forum need "not be the most reasonable or the only reason-

able limitation" and, "[i]n contrast to a public forum, a finding

__________

4 The plurality in Burson applied the more exacting public forum

test because it concluded the area outside the polling place was a

public forum, noting the Court had characterized as a "quintessen-

tial public forum" "those places 'which by long tradition or by

government fiat have been devoted to assembly and debate,' such as

parks, streets, and sidewalks." 504 U.S. at 196-98 (quoting Perry

Educ. Assn., 460 U.S. at 45). Concurring in the judgment, Justice

Scalia expressed his view that the area outside the polling place was

a non-public forum subject only to the reasonableness test. We are

not concerned with the area outside the polling place because the

Board applies the ban only within the site. See supra note 1.

5 Marlin attempts to distinguish this case from Burson on the

ground the challenge there was facial while his is as applied. That

a challenge is as applied, however, does not alter the level of

scrutiny applied in a nonpublic forum--to wit reasonableness. See,

e.g., United States v. Kokinda, 497 U.S. 720 (1990).

of strict incompatibility between the nature of the speech or

the identity of the speaker and the functioning of the nonpub-

lic forum is not mandated." 473 U.S. at 808 (citing Perry

Educ. Assn., supra; Lehman v. City of Shaker Heights, 418

U.S. 298 (1974)). The "decision to restrict access to a non-

public forum need only be reasonable," id., and the district's

decision to ban campaign paraphernalia from polling places is

a reasonable means of ensuring an orderly and peaceful

voting environment, free from the threat of contention or

intimidation. That narrower regulations might be as effective

or more so, as Marlin contends, does not invalidate the means

the District has chosen. Regulation of a non-public forum,

unlike that of a public forum, need not be "narrowly drawn to

achieve [its] end." Perry Educ. Ass'n, 460 U.S. at 45 (citing

Carey v. Brown, 447 U.S. 455, 461 (1980)). Because the

Board's enforcement of 3 D.C.M.R. ss 708.4 and 708.8 to

regulate political activity inside polling places is "reasonable

in light of the purpose which the forum at issue serves,"

Cornelius, 460 U.S. at 49, given the history and function of

polling places, see Burson, 504 U.S. at 200-09, we hold that

the regulations do not violate the First Amendment.

For the foregoing reasons, the judgment of the district

court is

Affirmed.