Opposition Brief — Minn. Voters Alliance v. Mansky, 138 S. Ct. 446 (2017) (No. 16-1435)

FILED

a F TRE CLE GK

BT ws

MINNESOTA VOTERS ALLIANCE,

ANDREW E. CILEK, AND SUSAN JEFFERS,

Petitioners,

No. 16-1435

In The

Supreme Court of the Gnited

.

vs.

JOE MANSKY, IN HIS OFFICIAL CAPACITY AS THE

ELECTIONS MANAGER FOR RAMSEY COUNTY;

VIRGINIA GELMS, IN HER INDIVIDUAL AND

OFFICIAL CAPACITY AS THE ELECTIONS MANAGER

FOR HENNEPIN COUNTY; MIKE FREEMAN,

IN HIS OFFICIAL CAPACITY AS HENNEPIN COUNTY

ATTORNEY; JOHN CHOI, IN HIS OFFICIAL CAPACITY

AS RAMSEY COUNTY ATTORNEY: STEVE SIMON,

IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE,

Respondents.

—«

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

.+-

RESPONDENTS’ JOINT BRIEF IN OPPOSITION

—?*

ROBERT B. ROCHE DANIEL P. ROGAN*

RAMSEY COUNTY ATTORNEY'S *Counsel of Record

OFFICE Betu A. STACK

121 7th Place East, Suite 4500 HENNEPIN COUNTY ATTORNEY'S

St. Paul, MN 55101 OFFICE

(651) 266-3230 A-2000 Government Center

MN 7

Attorneys for Respondents pony sy _ 29 5648

Joe Mansky and John J. Choi daniel.rogan@hennepin.us

NATHAN J. HARTSHORN

OFFICE OF THE MINNESOTA —s . fe ee — om

ATTORNEY GENERAL ee ee

Michael O. Freeman

445 Minnesota Street, Suite 1800

St. Paul, MN 55101

(651) 757-1252

Attorneys for Respondent

Steve Simon

i

QUESTION PRESENTED

Section 211B.11, subd. 1 of the Minnesota Statutes

creates a protected zone within 100 feet of a polling

place on Election Day and also prohibits individuals

who enter the polling place from wearing “a political

badge, political button, or other political insignia”

while inside the polling place.

The question presented in the petition is whether

Minnesota’s law prohibiting individuals from wearing

“a political badge, political button, or other insignia”

within the polling place on Election Day is unconstitu-

tional on its face because it violates the First Amend-

ment to the United States Constitution.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..............ccccsccssscsscsseeees i

TABLE OF AUTHORITIES ...................cccsceseeeeees iv

STATEMENT OF THE CASE........................-.000 1

ii. *> i inciansatcheianipdeenstesebeneibionainedminens 1

Bs — SII itt nin lnrlicetsnaninennidebiedinnsnineinsannunierdegios 2

III. Minnesota’s Speech Limitations Within

cis cer hsenasindensshiapipbeauisiiehidiusebinnte 4

EV. PRRIROURO EMO .....cccccccscvccsssccsvccesseeses 5

TTT iilinii ci iinindrenhimiemntcnmatnintiastinimeninieen’ 11

I. The Petition Should Not Be Granted Be-

cause This Case Does Not Involve a

“Speech-Free Zone,” Nor Does It Involve a

Statute with Substantial Overbreadth ..... 11

A. The “Strong Medicine” of the Over-

breadth Doctrine Is Not Needed ......... 12

B. The Court of Appeals Correctly Held

that Section 211B.11 Is Not Substan-

ID siiithcdciminiceidcecdianmsetatiinins 14

1. The polling place is a nonpublic

forum, and speech restrictions

must be reasonable and viewpoint

Re aiiadteninidicciiesldinsnddiateaiabemiionds 15

2. Section 211B.11 is a reasonable,

viewpoint-neutral limitation on

speech in the polling place ............. 20

II.

Il.

iii

TABLE OF CONTENTS -— Continued

Page

3. Petitioners’ argument that Section

211B.11 is overbroad because eve-

rything is “political” is baseless......

The Court of Appeals’ Decision Does Not

Conflict with Any Decisions from Other

I cccuziicannadddebeipeakinewgiidbeiuineneieennenneniee

The Court of Appeals’ Decision Does Not

Conflict with Any Supreme Court Prece-

I iaisceccriinstincnadinctinnininitnincghitnniniimnieepncoisumes

A. The Court of Appeals’ Decision Does

Not Conflict with Jews for Jesus.........

B. Review of the Forum Analysis Is Un-

necessary Because It Is An Appropri-

ate Test for Political Speech in a

Nonpublic Forum .............0s.sesscssesseseseee

SE isatentesnesssvcsstienmisitntncenincessiosectemvenne

26

29

33

33

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Am. Fed’n of State, County & Mun. Employees,

Council 25 v. Land, 583 F. Supp. 2d (E.D.

Rs i vccenccesascinsinsstrcuinscnstentansensentmnbanidasiinmdintds 19

Board of Airport Commissioners v. Jews for Je-

9000, GE UAB. BD CRD cccccccccccvccscccsesccsecses 33, 34, 35

Board of Trustees of State Univ. of New York v.

Feith, Ge Pe a ee iintincccknsnsinnvisiunanivinicsetanininns 13

Broadrick v. Oklahoma, 413 U.S. 601 (1973).....passim

Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008)........... 37

Burson v. Freeman, 504 U.S. 191 (1992)............. passim

Christian Legal Soc’y Chapter of the Univ. of

Cal., Hastings College of the Law v. Martinez,

Pe ey NE EE devercesnscncnnssdmencdesminhintseraialinens 15, 16

Citizens for Police Accountability Political Comm.

v. Browning, 572 F.3d 12 (11th Cir. 2009)........ 22, 29

Citizens United v. FEC, 558 U.S. 310 (2010) ....29, 30, 36

City of Houston, Tex. v. Hill, 482 U.S. 451 (1987)....... 12

Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788 (1985).............:00000 7, 16, 20, 24, 37

Cotz v. Mastroeni, 476 F. Supp. 2d 332 (S.D.N-Y.

SEDGE inecictucensserscnciininipinecaitnditiisadiasphisesiiiamemadedadaiaiada 19

Greer v. Spock, 424 U.S. 828 (1976)............ccccccceeeeeeees 37

Lehman v. City of Shaker Heights, 418 U.S. 298

CIIPIUID vecnevessneccnnseneenettosetantosnesospecnonentnnntebneientiassteiti 37

Vv

TABLE OF AUTHORITIES — Continued

Page

Marlin v. District of Columbia Bd. of Elections

and Ethics, 236 F.3d 716 (D.C. Cir. 2001)......... 19, 29

McCullen v. Coakley, __—~*U.S. __, 1384 S Ct.

I esecsnsibene 36

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334

ESSE ESTE SRS, SSO Ca a 30

Members of City Council of Los Angeles v. Tax-

payers for Vincent, 466 U.S. 789 (1984) ............ 13, 28

Mills v. Alabama, 384 U.S. 214 (1966) ................. 10, 24

Minnesota Majority v. Mansky, 789 F. Supp. 2d

a. casebunennesaes 9,10

Minnesota State Bd. for Community Colleges v.

Knight, 465 U.S. 271 (1984) ...0...........cccceececeeeeeeseeees 15

New York v. Ferber, 458 U.S. 747 (1982)............... 12,21

New York State Club Ass’n, Inc. v. City of New

i cosgunetunocnnontonsess 13

North Carolina Right to Life, Inc. v. Bartlett, 168

F.3d 706 (4th Cir. 1999)..........cccccccccccssssessreesesees 29, 30

Perry Educ. Ass’n v. Perry Local Educators’

Ass'n, 460 U.S. 37 (1983) ..........cccccccecesereeeeeeees passim

PG Publ’g v. Aichele, 705 F.3d 91 (3d Cir. 2013) ........ 19

Pleasant Grove City v. Summum, 555 U.S. 460

EEE SS ECS 16

Ramos v. Carbajal, 508 F. Supp. 2d 905 (D. N.M.

Siilidhdibentnnanendintddniessentacdumnssnastiaeeteanenseveutessesceeseees 19

vi

TABLE OF AUTHORITIES — Continued

Page

Reed v. Purcell, No. CV 10-2324-PHX-JAT, 2010

WL 4394289 (D. Ariz. Nov. 1, 2010).................. 31, 32

Reynolds v. Sims, 377 U.S. 533 (1964)...........cccccccceceee 24

Russell v. Lundergan-Grimes, 784 F.3d 1037

NG icc a indina iain iach tatiana anita 30

Schirmer v. Edwards, 2 F.3d 117 (5th Cir. 1993).....22, 29

United Food & Commercial Workers Local 1099

v. City of Sidney, 364 F.3d 738 (6th Cir.

TES SETAE SAAN a Lee ene 19, 22, 29

United States v. Kokinda, 497 U.S. 720 (1990) .......... 37

United States v. Stevens, 559 U.S. 460 (2010).............. 7

United States v. Williams, 553 U.S. 285 (2008).....13, 28

Virginia v. Hicks, 539 U.S. 113 (2003)....................... 13

Washington State Grange v. Washington State

Republican Party, 552 U.S. 442 (2008)......... 7, 21, 28

Williams-Yulee v. Florida Bar, _ U.S. ___, 135

SRS SR RR a ret Soa na eae 28

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d

SI TITTTTTchs ser ricncindendibniiiniaaritahonsiciietnatenisianda 29, 30

MINNESOTA CASES

Erickson v. Sunset Mem’! Park Ass’n, 108 N.W.2d

RT ERR ee 27

State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695

a ied 26

Vii

TABLE OF AUTHORITIES — Continued

Page

State ex rel. Pearson v. Probate Court of Ramsey

County, 287 N.W. 297 (Minn. 1939)........................ 27

Van Asperen v. Darling Olds, Inc., 93 N.W.2d 690

Sc Es ae een anemneninaiaaaaialicaiita 27

OTHER STATE CASES

Picray v. Secretary of State, 140 Or. App. 592

(1996), aff’d by an equally divided court, 325

EY ESS FSI SERIES eRe Se Ree SEN ener ceoeras 31

Poniktera v. Seiler, 104 Cal. Rptr. 3d 291 (Cal.

ia hecentnneascigttinasemsbapnedinianiannbineiadsenematiogs 19

FEDERAL RULES

TEE AT LLANE TAPES 6

MINNESOTA STATUTES

I ceabemiignentil 18, 23

I a einetaeeiadede 18

Cs ee a SOE er em 18

ee iimebeiabtetneaedelll 27

8 passim

OTHER MINNESOTA AUTHORITIES

1893 Minn. Laws, Ch. 4, § 108 ..................00.:cceee 4, 23

1912 Minn. Laws, Ex. Sess., Ch. 3, $§ 13, 14......... 4, 23

Vili

TABLE OF AUTHORITIES ~— Continued

Page

OTHER AUTHORITIES

ee iiicinsincisincintnventinmsentanintattadscotsiinsiinl 31

is crtncinnniintintnimemnnccemedinietin 23

La. St. Rev. § 18:1462(A)(3-4) ...........ccccccccereeceeseneeeeenes 23

Mont. Code Ann. § 13-35-2111 ................ sniaiahenatenundsiiad 23

N.D. Cent. Code § 16.1-10-O03...................cecceeceeeeeeeeeeees 23

ia a acreriasciirtinaarininliieneenitls 23

a retrnneneiinnemen endl 31

0 ncserengnennenennemmsinmnncnantsisanins 17

Tex. Election Code § 61.010................:cc:ceseessereereeeeenes 23

1

STATEMENT OF THE CASE

I. Introduction

The Court should deny the petition for certiorari.

There are no compelling reasons for this Court to re-

view the U.S. Court of Appeals for the Eighth Circuit’s

determination that petitioners’ First Amendment fa-

cial challenge failed as a matter of law. Despite peti-

tioners’ claim that the court of appeals erred in its

application of the overbreadth doctrine, the court of ap-

peals’ analysis is in accord with other circuit court de-

cisions, does not conflict with any Supreme Court

precedent, and does not present a significant issue that

needs to be addressed by this Court. The court of ap-

peals’ legal conclusion that the interior of a polling

place is a nonpublic forum in which speech restrictions

are constitutional as long as they are reasonable and

viewpoint neutral is the same conclusion reached by

every court that has analyzed the issue and constitutes

a logical and straightforward application of Burson v.

Freeman, 504 U.S. 191 (1992). Petitioners’ facial over-

breadth challenge is not appropriate for review be-

cause the court of appeals’ dismissal of this claim is in

harmony with Supreme Court precedent and other cir-

cuit court decisions.

This Court need look no further to deny this peti-

tion than the fact that petitioners’ as-applied challenge

was summarily rejected by the court of appeals and re-

view was not sought. Petitioners’ as-applied challenge

was centered on the same argument presented here —

application of this statute to “political” non-campaign

2

material (petitioners’ “political” non-campaign buttons

and t-shirts) violates the First Amendment. Thus, pe-

titioners’ argument in the petition is predicated on this

Court concluding that although the statute was consti-

tutionally applied to petitioners, it is still overbroad as

a matter of law because it could sweep too broadly. This

Court should deny the petition because any over-

breadth in that statute -- which was constitutionally

applied to petitioners — can be corrected in future as-

applied challenges.

Il. Parties

Petitioner Minnesota Voters Alliance is a group

that purports to be concerned about the integrity of

elections. Petition (“Pet.”) 2. During the 2010 election,

Petitioner Andrew E. Cilek was an eligible voter in

Hennepin County, Minnesota, and Petitioner Susan

Jeffers was an election judge in Ramsey County, Min-

nesota. Appendix (“App.”) E-3, E-7.

In 2010, Minnesota Voters Alliance was part of a

coalition known as Election Integrity Watch with two

other organizations, Minnesota Majority and Minne-

sota North Star Tea Party Patriots.’ App. E-3. Election

Integrity Watch orchestrated a public campaign to af-

fect behavior within the polling place on Election Day

2010 by creating and disseminating a “Please I.D. Me”

button to be worn by voters inside the polling place,

* Election Integrity Watch, Minnesota Majority, and Minne-

sota North Star Tea Party Patriots were plaintiffs in the action

below but are not currently petitioners.

3

even though Minnesota does not have a photo identifi-

cation requirement to vote. App. C-12. The button

stated “Please I.D. Me” in large letters and listed both

a toll-free phone number and EIW’s website address.

App. G-1. The Minnesota North Star Tea Party Patri-

ots (a part of the Election Integrity Watch coalition)

also distributed t-shirts and other apparel from the na-

tional Tea Party Patriots organization with the Tea

Party’s logo and related political slogans, including

“Don’t tread on me,” “Liberty,” “We'll Remember in No-

vember,” and “Fiscal Responsibility, Limited Govern-

ment, Free Markets.” App. H-1, H-2.

On the eve of Election Day 2010, petitioners

(among other plaintiffs) sought a temporary restrain-

ing order (“TRO”) against the Minnesota Secretary of

State, the Hennepin County Attorney and Elections

Manager (the “Hennepin County respondents”), and

the Ramsey County Attorney and Elections Manager

(the “Ramsey County respondents”) (together “re-

spondents”) to enjoin enforcement of a portion of Sec-

tion 211B.11, subdivision 1 (“Section 211B.11”), of

Minnesota Statutes, so that voters could wear the

“Please I.D. Me” buttons and Tea Party Patriots t-

shirts in the polling place on Election Day. App. D-3.

On November 1, 2010, after a hearing, the district

court denied the TRO. Id. Despite that ruling, on Elec-

tion Day 2010, Petitioner Cilek wore both a “Please I.D.

Me” button and a Tea Party Patriots t-shirt to his poll-

ing place in Hennepin County, Minnesota. App. E-7.

4

III. Minnesota’s Speech Limitations Within

Polling P/aces.

Section 211B.11, subdivision 1, of the Minnesota

Statutes prohibits displaying “campaign material,”

posting “signs” or soliciting voters within 100 feet of

the polling place and prohibits people from wearing “a

political badge, political button, or other political insig-

nia... ator about the polling place.” The statute is the

current codification of a Minnesota law that dates back

to 1893, designed to protect Minnesotans’ right to vote

in an orderly and controlled environment without con-

fusion, interference, or distraction. See 1893 Minn.

Laws, Ch. 4, § 108; 1912 Minn. Laws, Ex. Sess., Ch. 3,

§§ 13, 14.

On the eve of Election Day 2010, after the district

court denied petitioners’ motion for a TRO, respon-

dents issued identical policies on Section 211B.11 to all

polling places, to clarify the limited scope of Section

2118.11 and to provide guidance on what items were

prohibited from inside polling places (the “Election

Day Policy”). App. E-6, I-1 to I-3. The Election Day Pol-

icy first identified examples of “political” material pro-

hibited from polling places, including but not limited

to:

e Any item including the name ofa political

party in Minnesota, such as the Republi-

can, DFL, Independence, Green or Liber-

tarian parties.

e Any item including the name of a candi-

date at any election.

5

e Any item in support of or opposition to a

ballot question at any election.

* Issue oriented material designed to influ-

ence or impact voting (including specifi-

cally the “Please I.D. Me” buttons).

* Material promoting a group with recog-

nizable political views (such as the Tea

Party, MoveOn.org, and so on).

App. I-1 to I-2.

The Election Day Policy then directed election

judges to ask individuals to cover up or remove any po-

litical material while in the polling place. App. I-2.

However, the Election Day Policy explicitly stated that

“{e]ven if a voter refuses to [remove or cover political

material], [election judges] must permit any eligible

voter to receive a ballot and vote.” Jd.

IV. Petitioners’ Lawsuit.

After the 2010 election, petitioners amended their

complaint and respondents moved to dismiss the

complaint as a matter of law. App. E-2. Petitioners’

amended complaint contained four constitutional

claims:

(1) a First Amendment challenge to Section

211B.11 as applied to petitioners through

respondents’ Election Day Policy (Count

1);

(2) a due process claim (Count ID);

(3) an equal protection claim (Count III); and

6

(4) a First Amendment challenge to Section

211B.11 on its face (Count IV).

App. E-8.

On April 29, 2011, the district court granted re-

spondents’ motions to dismiss the amended complaint

in its entirety, concluding that petitioners failed to

state a claim under Rule 12(b)6) of the Federal Rules

of Civil Procedure. App. E-2. Petitioners appealed the

dismissal of the First Amendment and equal protec-

tion claims. App. D-2. In an opinion dated March 6,

2013, the court of appeals affirmed in part and re-

versed in part. Jd. The court affirmed the dismissal of

petitioners’ equal protection claim. App. D-15. With re-

spect to the two First Amendment counts, the court

reversed the district court’s dismissal of petitioners’

as-applied challenge and remanded this claim, App. D-

12; it affirmed the dismissal of the facial challenge,

App. D-10.

In analyzing petitioners’ First Amendment claims,

the court of appeals applied this Court’s traditional

First Amendment forum analysis and concluded that

the inside of a polling place was a nonpublic forum and

therefore Section 211B.11’s limitations on speech were

constitutional if they were viewpoint neutral and

“‘reasonable in light of the purpose which the forum at

issue serves.” App. D-8 (quoting Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)).

The court of appeals reversed and remanded the as-

applied challenge because it concluded that the district

court considered matters outside the pleadings in

7

considering the application of Section 211B.11 to peti-

tioners. App. D-12. The court of appeals was unani-

mous in its analysis and remand of this as-applied

claim. App. D-12, D-15 (Shepherd, J., concurring in

part and dissenting in part).

With respect to the facial challenge, the court of

appeals noted that a law may be invalidated as over-

broad only if “‘a substantial number of its applications

are unconstitutional, judged in relation to the statute’s

legitimate sweep.’” App. D-5 (quoting United States v.

Stevens, 559 U.S. 460, 473 (2010), quoting in turn

Washington State Grange v. Washington State Repub-

lican Party, 552 U.S. 442, 449 n.6 (2008)). The court

also noted that the “‘decision to restrict access to a

nonpublic forum need only be reasonable; it need not

be the most reasonable or the only reasonable limita-

tion.’” Id. D-9 (quoting Cornelius v. NAACP Legal Def:

& Educ. Fund, Inc. , 473 U.S. 788, 808 (1985) (emphasis

in original)).

The majority then concluded that Section 211B.11

has a “plainly legitimate sweep” when it prohibits

speech about a political campaign (in contrast to on-

campaign political speech) and stated:

Even if Minnesota acted unreasonably in ap-

plying the statute to some material, the com-

plaint does not allege that there were a

“substantial number” of such unreasonable ap-

plications in relation to the statute’s reasona-

ble applications. See Wash. State Grange, 552

U.S. at 449 n.6. “[W]hatever overbreadth may

exist should be cured through case-by-case

8

analysis of the fact situations to which its

sanctions, assertedly, may not be applied.”

Broadrick v. Oklahoma, 413 U.S. 601, 615-16

(1973). [Petitioners] ha[ve] failed to state a fa-

cial claim under the First Amendment against

Minn. Stat. § 211B.11, subd. 1.

App. D-10.

Judge Shepherd agreed with the overbreadth

standards employed by the majority in analyzing peti-

tioners’ facial challenge; however, in his dissent he ex-

pressed his belief that further factual development

was required to determine how the restrictions in Sec-

tion 211B.11 “are reasonable limits on free speech

which rationally relate to the state’s interest in main-

taining order and preserving the integrity at the poll-

ing place[.]” App. D-18. He would have remanded this

claim “to allow the record to be developed regarding

[petitioners’] facial challenge.” App. D-19.

Following the court of appeals’ decision in 2013,

petitioners filed their first petition for a writ of certio-

rari with this Court, in which they sought review only

of their facial challenge to Section 211B.11. On Decem-

ber 16, 2013, this Court denied the petition. See 134

S. Ct. 824 (U.S. Dec. 16, 2013) (No. 13-185).

After this Court denied certiorari review, this case

returned to the district court on the remand of peti-

tioners’ as-applied challenge. The district court

granted summary judgment to respondents, conclud-

ing that Section 211B.11 and the Election Day Policy

are constitutional as applied to both the “Please I.D.

9

Me” buttons and the Tea Party Patriots apparel. App.

B-33, C-19. Based on the undisputed evidence regard-

ing the membership and purpose of the Election Integ-

rity Watch coalition, the district court found that

Section 211B.11 was constitutional as applied to the

“Please I.D. Me” buttons, which the court found were

intended “to falsely intimate to voters in line at the

polls that photo identification is required in order to

vote in Minnesota” as part of “a campaign that aims to

change state and local laws such that voters would be

required to present photo identification at the polls.”

App. C-13 to C-14. Photo identification is not a require-

ment in Minnesota, but these buttons were part of an

orchestrated effort to disrupt the polling place by ask-

ing voters to produce a Minnesota ID and confront poll

workers, in order to get other voters in line to also pro-

duce IDs.

Based on the undisputed evidence regarding the

Tea Party movement and the Tea Party apparel that

petitioners sought to wear to the polls, the district

court also found that Section 211B.11 was constitu-

tional as applied to the Tea Party Patriots apparel.

App. B-33. The district court observed that petitioners’

“effort to deny the obviously political nature of the Tea

Party . . . is a8 unconvincing now as it was when [peti-

tioners] first made it at the outset of this case.” App. B-

30. To the contrary, the district court concluded that

the “Tea Party apparel communicates support for the

Tea Party movement which i» associated with particu-

lar views on matters of public governance.” Jd, (quoting

Minnesota Majority v. Mansky, 789 F. Supp. 2d 1112,

10

1123 (D. Minn. 2011)). As a result, the district court

found that “prohibiting [the Tea Party] apparel that ex-

presses support for a political ideology is reasonably

related to the legitimate state interest of ‘main-

tain[ing] peace, order, and decorum’ at the polls.” App.

B-31 (quoting Minnesota Majority, 789 F. Supp. 2d at

1123-24, quoting in turn Mills v. Alabama, 384 US.

214, 218 (1966)).

Recognizing the obvious constitutional application

of Section 211B.11 to the “Please I.D. Me” buttons,

Plaintiffs chose not to appeal this application to the

court of appeals. App. B-9. Instead, petitioners ap-

pealed their as-applied claim only with respect to the

Tea Party shirts, and the court of appeals affirmed the

district court’s ruling. App. A-7. Specifically, the court

of appeals agreed with the district court’s conclusion

that “[e]ven if Tea Party apparel is not election-related,

it is not unreasonable to prohibit it in a polling place”

because “[i]n order to ensure a neutral, influence-free

polling place, all political material is banned [by Sec-

tion 211B.11].” App. A-6.

Petitioners now bring their second petition for a

writ of certiorari. As with their 2013 petition, petition-

ers challenge only the dismissal of their facial chal-

lenge to Section 211B.11 under the First Amendment.

Petitioners do not seek review of their as-applied chal-

lenge.

11

ARGUMENT

The Court should deny the petition because the

court of appeals’ decision — that Section 211B.11 is not

overbroad but a reasonable and viewpoint-neutral reg-

ulation of speech ir the nonpublic forum of a polling

place — is in accord with the precedent of this Court,

including Burson, 504 U.S. 191, as well as the decisions

of the other circuit courts that have considered speech

restrictions within the polling place. Neither the court

of appeals’ application of the forum analysis to a re-

striction of political speech within a polling place nor

its overbreadth analysis raise any compelling legal is-

sues requiring this Court’s review.

I. The Petition Should Not Be Granted Be-

cause This Case Does Not Involve a

“Speech-Free Zone,” Nor Does It Involve a

Statute with Substantial Overbreadth.

Petitioners assert this case is an appropriate vehi-

cle for the Court to examine whether a “speech-free

zone” comports with the First Amendment. Pet. 24.

However, this case does not present that question. The

only question presented by the Petition is whether Sec-

tion 211B.11’s prohibition on certain political speech in

the polling place is facially overbroad. Pet. i. As the

court of appeals correctly held, the statute does not

have a substantial number of unconstitutional appli-

cations, relative to its legitimate reach — including

its constitutional application to petitioners’ “Please

I.D. Me” button and Tea Party shirts. There is no com-

pelling reason for this Court to consider a facial

12

overbreadth challenge to a statute that has been ruled

constitutional as applied to petitioners.

A. The “Strong Medicine” of the Over-

breadth Doctrine Is Not Needed.

Petitioners, who have abandoned their narrow “as-

applied” challenge, now ask this Court to strike down

Section 211B.11 as overbroad, even though it was con-

stitutionally applied to petitioners. The Court should

reject petitioners’ attempts to minimize the burden re-

quired to strike down a statute on its face, even when

First Amendment interests are involved. In light of t..e

constitutional application of Section 211B.11 to peti-

tioners, this case is not an appropriate vehicle to chal-

lenge any purported overbreadth of this statute.

The overbreadth doctrine constitutes a “departure

from traditional rules of standing[.)” Broadrick, 413

US. at 613. If an overbreadth challenge succeeds, “any

enforcement” of the regulation at issue is “totally for-

bidden.” Jd. This prohibition constitutes “strong medi-

cine,” which courts use “sparingly and only as a last

resort.” Id. Accordingly, this Court has held that even

when siatutes involve limitations on speech, “[o]nly a

statute that is substantially overbroad may be invali-

dated on its face.” City of Houston, Tex. v. Hill, 482 U.S.

451, 458 (1987) (citing New York v. Ferber, 458 U.S.

747, 769 (1982)). Before striking down a statute, this

Court has “insisted that a law’s application to pro-

tected speech be ‘substantial,’ not only in an absolute

sense, but also relative to the scope of the law’s plainly

13

legitimate applications, before applying the ‘strong

medicine’ of overbreadth invalidation.” Virginia v.

Hicks, 539 U.S. 113, 119-20 (2003) (internal citations

omitted).

This high standard for striking down a statute is

needed because “there comes a point at which the

chilling effect of an overbroad law, significant though

it may be, cannot justify prohibiting all enforcement of

that law — particularly a law that reflects ‘legitimate

state interests in maintaining comprehensive controls

over harmful, constitutionally unprotected conduct.’”

Hicks, 539 U.S. at 119 (quoting Broadrick, 413 U.S. at

615). This Court has warned that “invalidating a law

that in some of its applications is perfectly constitu-

tional . . . has obvious harmful effects,” and therefore,

the Court has “vigorously enforced the requirement

that a statute’s overbreadth be substantial, not only in

an absolute sense, but also relative to the statute’s

plainly legitimate sweep.” United States v. Williams,

553 U.S. 285, 292 (2008) (emphasis in original) (citing

Fox, 492 U.S. at 485; Broadrick, 413 U.S. at 615).

Furthermore, “[t/he ‘mere fact that one can con-

ceive of some impermissible applications of a statute is

not sufficient to render it susceptible to an overbreadth

challenge.’” Jd. at 303 (quoting Members of City Coun-

cil of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

800 (1984)). Rather, to prevail on an overbreadth chal-

lenge petitioners “must demonstrate from the text of [a

statute] and from actual fact that a substantial num-

ber of instances exist in which the [statute] cannot be

applied constitutionally.” New York State Club Ass’n,

14

Inc. v. City of New York, 487 U.S. 1, 14 (1988) (emphasis

added).

Because application of Section 211B.11 to petition-

ers’ “Please I.D. Me” buttons and Tea Party shirts did

not violate the First Amendment, this case is not an

appropriate vehicle for this Court to examine whether

Section 211B.11 could be unconstitutionally over-

broad. There is no evidence in the record of inappropri-

ate application in the last 130 years. Moreover, the

statute was constitutionally applied to petitioners’ ap-

parel. Nonetheless, petitioners make the absurd argu-

ment that the statutory language could be construed

very broadly to prohibit voters from wearing certain

colors to polls. Pet. 22. As the court of appeals recog-

nized in its 2013 opinion, “[w]hatever overbreadth may

exist should be cured through case-by-case analysis of

the fact situations to which its sanctions, assertedly,

may not be applied.” App. D-10 (quoting Broadrick, 413

U.S. at 615-616). Because the actual facts show a much

more limited scope of Section 211B.11, review of peti-

tioners’ facial challenges is not needed.

B. The Court of Appeals Correctly Held

that Section 211B.11 Is Not Substantially

Overbroad.

Petitioners’ argument that Section 211B.11 is un-

constitutionally overbroad is centered entirely on their

contention that to the extent that it prohibits certain

“political” apparel from the polling place, rather than

only banning “campaign” apparel, i.e., apparel that

15

explicitly identifies a political party, candidate, or bal-

lot question, it is unconstitutional on its face. Pet. 10,

21. There is no dispute that Section 211B.11 prohibits

certain partisan material within the polling place that

is not campaign material. However, preventing indi-

viduals from both wearing “campaign” material and

“political” material — both designed to express support

for a particular political ideology and to influence or

impact voters while they are in the polling place on

Election Day — is a “reasonable” limitation on speech,

considering the narrow purpose of the polling place as

a nonpublic forum.

1. The polling place is a nonpublic fo-

rum, and speech restrictions must be

reasonable and viewpoint neutral.

The court of appeals’ unanimous holding that the

interior of a polling place is a nonpublic forum — in

which speech restrictions need only be reasonable and

viewpoint neutral — is solidly grounded in this Court’s

precedent. For more than thirty years, the forum anal-

ysis has been “a fundamental principle of First Amend-

ment doctrine.” Minnesota State Bd. for Community

Colleges v. Knight, 465 U.S. 271, 280 (1984) (citing

Perry Educ. Ass’n, 460 U.S. at 46); see also Christian

Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll-

lege of the Law v. Martinez, 561 U.S. 661, 679 (2010)

(“[I)n a progression of cases, this Court has employed

forum analysis to determine when a governmental en-

tity, in regulating property in its charge, may place lim-

itations on speech.”) (footnote omitted).

16

The forum analysis is predicated on the fact that

“(njothing in the Constitution requires the Govern-

ment freely to grant access to all who wish to exercise

their right to free speech on every type of Government

property without regard to the nature of the property

or to the disruption that might be caused by the

speaker’s activities.” Cornelius, 473 U.S. at 799-800. As

a result, this Court has “adopted a forum analysis as a

means of determining when the Government’s interest

in limiting the use of its property to its intended pur-

pose outweighs the interest of those wishing to use the

property for other purposes.” Jd. at 800. This Court has

identified three types of fora: “the traditional public fo-

rum, the public forum created by government designa-

tion, and the nonpublic forum.” Jd. at 802.?

A forum analysis of speech restrictions within

polling places must focus on the intended purpose of

polling places and the activity that takes place within

them. Statutes limiting political activity in and around

polling places like Section 211B.11 have been in effect

in every state for many years. In Burson, this Court

* The Supreme Court has more recently described the third

category, the nonpublic forum, as a “limited public forum.” See

Christian Legal Soc’y, 130 S. Ct. at 2984 n.11. This change in ter-

minology of the third category has not changed the governing

standard, as a “limited public forum,” like a “nonpublic forum,”

may be “ ‘limited to use by certain groups or dedicated solely to

the discussion of certain subjects,’” and a governmental entity

“‘may impose restrictions on speech that are reasonable and

viewpoint-neutral.’” Id. (quoting Pleasant Grove City v. Summum,

555 U.S. 460, 470 (2009)). Respondents will refer to this third cat-

egory as a nonpublic forum, as the court of appeals did.

17

employed the forum analysis in its review of a Tennes-

see statute that is extremely similar to Section

211B.11. 504 US. at 193 (1992) (plurality). The statute

at issue in Burson, Tenn. Stat. § 2-7-111(b), created a

“campaign-free zone” within 100 feet of the entrance to

a polling place and the building in which the polling

place was located by prohibiting “campaign posters,

signs or other campaign materials, distribution of cam-

paign materials, and solicitation of votes for or against

any person or political party or position on a question.”

Id. at 193-94. The plurality first concluded that be-

cause the campaign-free zones included sidewalks and

streets adjacent to polling locations, the law banned

speech in public forums and was therefore subject to

exacting scrutiny. Jd. at 196 n.2, 198.

The Court then considered whether the Tennessee

law satisfied exacting scrutiny. The Court examined

the history of voting procedures in the United States,

including specifically the characteristics of an official

ballot and ballot secrecy. Jd. at 202. The Court noted

that “all 50 States limit access to the areas in and

around polling places,” id. at 206 (citations omitted),

and then stated:

In sum, an examination of the history of

election regulations in this country reveals a

persistent battle against two evils: voter in-

timidation and election fraud. After an unsuc-

cessful experiment with an unofficial ballot

system, all 50 States, together with numerous

other Western democracies, settled on the

same solution: a secret ballot secured in part

18

by a restricted zone around the voting com-

partments. We find this widespread and time-

tested consensus demonstrates that some re-

stricted zone is necessary in order to serve the

States’ compelling interests in preventing

voter intimidation and election fraud.

Id. Although the Court “reaffirm[ed] that it is the rare

case in which . . . a law survives strict scrutiny,” it con-

cluded that the Tennessee statute met the standard be-

cause “({a] long history, a substantial consensus, and

simple common sense show that some restricted zone

around polling places is necessary to protect” voters’

right “to cast a ballot in an election free from the taint

of intimidation and fraud.” Jd. at 211.

In contrast to the pub'ic space (sidewalks and

streets) outside a polling place addressed in Burson,

the forum at issue here is the interior of the polling

place itself — a highly regulated location, supervised by

election officials, where individuals (1) confirm they

are registered to vote or register to vote; (2) receive a

ballot; (3) vote at a private voting station; (4) turn in

their ballot to be counted; and then (5) leave. See Minn.

Stat. §§ 204C.06, 204C.10, 204C.13. In practice, the in-

side of a polling place has never been a traditional pub-

lic forum like a public park, street, or sidewalk — in

other words, it is not a space “devoted to assembly and

debate.” Burson, 504 U.S. at 196, quoting Perry Educ.

Ass’n, 460 U.S. at 45; see also Burson, 504 US. at 214,

216 (Scalia, J., concurring in the judgment) (“[RlJes-

trictions on speech around polling places on election

day are as venerable a part of the American tradition

19

as the secret ballot,” and “the environs of a polling

place, on election day, are simply not a ‘traditional pub-

lic forum|[.]’”).

Instead, the interior of the polling place can only

be considered a nonpublic forum, reserved for its sin-

gular intended use: “each voter’s communication of his

own elective choice. . . carried out privately — by secret

ballot in a restricted space.” Marlin v. District of Co-

lumbia Bd. of Elections and Ethics, 236 F.3d 716, 719

(D.C. Cir. 2001). Therefore, it is not surprising that

every court to consider the issue has concluded that

the interior of a polling place on Election Day is a non-

public forum. See PG Publ’g v. Aichele, 705 F.3d 91, 100

(3d Cir. 2013); United Food & Commercial Workers Lo-

cal 1099 v. City of Sidney, 364 F.3d 738, 750 (6th Cir.

2004); Marlin, 236 F.3d at 719; Am. Fed’n of State,

County & Mun. Employees, Council 25 v. Land, 583

F. Supp. 2d 840, 847-848 (E.D. Mich. 2008); Coétz v.

Mastroeni, 476 F.Supp. 2d 332, 364-365 (S.D.N.Y.

2007); Ramos v. Carbajal, 508 F. Supp. 2d 905, 919 (D.

N.M. 2007); see also Poniktera v. Seiler, 104 Cal. Rptr.

3d 291, 302 (Cal. Ct. App. 2010) (“The comments of

both Justice Scalia’s concurring opinion in Burson, as

well as the dissent, confirm our reading that Burson

understood it was not approving the application of

strict scrutiny to restrictions on conduct within the

confines of the polling station[.]”) (emphasis in origi-

nal).

Because the interior of a polling place is a nonpub-

lic forum, the appropriate test for analyzing the consti-

tutionality of Section 211B.11’s_ limitation on

20

individuals wearing “a political badge, button, or other

political insignia” is whether the restriction is view-

point neutral and “reasonable in light of the purpose”

served by polling places on Election Day. Perry Educ.

Ass’n, 460 U.S. at 49. The reasonableness test grants

the government significant latitude because the

speech restriction “need only be reasonable; it need not

be the most reasonable or the only reasonable limita-

tion.” Cornelius, 473 U.S. at 808 (emphasis in original).

With its decisions in this case, the Eighth Circuit

became the fourth circuit court to hold that the interior

of a polling place was a nonpublic forum in which

speech restrictions need only be reasonable and view-

point neutral. See App. A-5; D-8. This holding is a logi-

cal application of the forum analysis and is in accord

with Burson. Because the court of appeals properly an-

alyzed the issue and applied this Court’s precedent,

certiorari is unnecessary.

2. Section 211B.11 is a reasonable,

viewpoint-neutral limitation on speech

in the polling place.

In its 2013 opinion, the court of appeals rejected

petitioners’ facial overbreadth challenge and con-

cluded that Section 211B.11 has a “plainly legitimate

sweep” with respect to political campaign speech. App.

D-9. The court of appeals further concluded that Sec-

tion 211B.11 was facially valid to the extent that it ap-

plied to certain political non-campaign speech, i.e., to

political material unrelated to any candidate or ballot

21

measure. App. D-10.* In particular, the court of appeals

noted that petitioners had not alleged any “‘substan-

tial number’ of unreasonable applications in relation

to the statute’s reasonable applications.” App. D-10

(citing Washington State Grange, 552 US. at 449 n.6).

Even after petitioners’ as-applied challenge was re-

manded, they did not produce any evidence of any un-

reasonable applications of Section 211B.11 — only

speculation. Accordingly, petitioners do not offer any

compelling argument for this Court to review the court

of appeals’ conclusion.

There can be no dispute that application of Section

211B.11 to political campaign material (e.g., “Vote for

Obama”) is clearly constitutional. See Burson, 504 U.S.

at 211 (holding that a statute restricting speech “re-

lated to a political campaign” within 100 feet of the

outside of a polling place survived strict scrutiny).

Therefore, because application of Section 211B.11 to

prohibit “political” buttons, badges, and paraphernalia

that are political campaign material is constitutional,

this statute has a “‘plainly legitimate sweep,’” App. D-

9 (quoting Ferber, 458 U.S. at 769-70). Petitioners con-

cede this point. Pet. 10, 21.

% In its 2017 opinion, the court of appeals explicitly concluded

that application of this statute to petitioners’ non-campaign, po-

litical shirts was constitutional. See A-6 (“Banning apparel with

[the Tea Party] name and logo is ‘reasonable because it is wholly

consistent with the [state]’s legitimate interest in preserving’ poll-

ing place decorum and neutrality.”) (citing Perry Educ. Ass’n, 460

USS. at 50).

22

Nonetheless, petitioners contend that even under

the reasonableness standard applicable to a nonpublic

forum, Section 211B.11 is facially overbroad to the ex-

tent that it reaches any political non-campaign mate-

rial. Pet. 9. The court of appeals rejected this argument

(in both its 2013 and 2017 opinions), and its decision is

consistent with other circuit courts that have upheld

statutes prohibiting certain non-campaign related

speech from near polling places. See Citizens for Police

Accountability Political Comm. v. Browning, 572 F.3d

1213, 1218-19 (11th Cir. 2009) (upholding application

of 100-foot campaign-free zone to individuals soliciting

voters exiting the polling place on matters not on the

ballot); City of Sidney, 364 F.3d at 748 (upholding

Ohio’s 100-foot campaign-free zone that prevented in-

dividuals from soliciting signatures on non-ballot re-

lated item, even in areas that included traditional

public forums such as sidewalks); Schirmer v. Ed-

wards, 2 F.3d 117, 122-23 (5th Cir. 1993) (upholding

Louisiana’s total ban on “politicking” within a 600-foot

radius of the polling place and its application to non-

ballot related political “buttons and T-shirts”).

In Browning, City of Sydney, and Schirmer, the

courts held that application of the relevant statutes to

plaintiffs’ non-ballot related speech satisfied strict

scrutiny because the speech at issue in each case was

the area immediately outside of the polling place. Here,

of course, because the speech limitation is limited to

the interior of a polling place, Section 211B.11’s limi-

tation need only be reasonable.

23

Section 211B.11 has existed for more than 100

years.‘ It is one of several Minnesota laws designed to

ensure that the polling place on Election Day is a place

where voters can calmly and efficiently cast ballots.

See e.g. Minn. Stat. § 204C.06 (limiting who can be in a

polling place, restricting movement of non-voters

within the polling place, providing a sergeant-at-arms

will “keep the peace,” and prohibiting lingering within

100 feet of the building in which the polling place is

located). Like similar prohibitions in many other

states,® this provision bars “a political badge, political

* See 1898 Minn. Laws, c. 4, § 108; 1912 Minn. Laws, Ex.

Sess., c. 3 §§ 13, 14.

5 See, e.g., Del. Code Title 15 § 4942 (banning “electioneering”

at polling place and within 50 feet, including “wearing of any but-

ton, banner or other object referring to issues, candidates or par-

tisan topics”); La. St. Rev. § 18:1462(A)(3-4) (banning from the

inside of a polling place and within 600 feet placing or displaying

“campaign cards, pictures, or other campaign literature,” and “po-

litical signs, pictures, or other forms of political advertising);

Mont. Code Ann. § 13-35-211(1) (“A person may not do any elec-

tioneering on election day within any polling place . . . that aids

or promotes the success or defeat of any candidate or ballot issue

to be voted upon at the election.”); N.J. Stat. § 19:34-19 (“No per-

son shall display, sell, give or provide any political badge, button

or other insignia to be worn at or within one hundred feet of the

polls or within the polling place or room... .”); N.D. Cent. Code

§ 16.1-10-03 (“No individual may buy, sell, give, or provide any po-

litical badge, button, or any insignia within a polling place or

within one hundred feet . . . from the entrance to the room con-

taining the polling place while it is open for voting. No such polit-

ical badge, button, or insignia may be worn within that same area

while a polling place is open for voting.”); Tex. Election Code

§ 61.010 (“[A] person may not wear a badge, insignia, emblem, or

24

button, or other political insignia” from inside the poll-

ing piace. Minn. Stat. § 211B.11, subd. 1. As outlined

above, because a polling place is a nonpublic forum, the

relevant standard for reviewing this speech limitation

is whether it is “reasonable in light of the purpose

which [the polling place] serves.” Perry Educ. Ass’n, 460

U.S. at 49. This limitation on speech “need only be rea-

sonable; it need not be the most reasonable or the only

reasonable limitation.” Cornelius, 473 U.S. at 808.

Section 211B.11’s limitation on wearing political

badges, vuttons, and other paraphernalia is a reasona-

ble method to ensure that the polling place is a location

where citizens can exercise the right to vote without

confusion, distraction or distress, and election officials

can preserve the integrity and reliability of elections.

See Burson, 504 U.S. at 211 (plurality) (“A long history,

a substantial consensus, and simple common sense

show that some restricted zone around polling places

is necessary to protect that fundamental right.”); Reyn-

olds v. Sims, 377 U.S. 533, 562 (1964) (“[T]he right to

exercise the franchise in a free and unimpaired man-

ner is preservative of other basic civil and political

rights. . . .”); Mills, 384 U.S. at 218 (recognizing state’s

power “to regulate conduct in and around polls in order

to maintain peace, order and decorum there”).

Thus, the court of appeals correctly concluded that

Section 211B.11 was not facially overbroad, given its

other similar communicative device relating to a candidate, meas-

ure, or political party appearing on the ballot, or to the conduct of

the election, in the polling place or within 100 feet. . . .”).

25

plainly legitimate sweep related to the purpose of a

polling place, whether applied to campaign speech or

to other political speech. As the court of appeals recog-

nized in its 2013 opinion, “whatever overbreadth may

exist should be cured through case-by-case analysis of

the fact situations to which its sanctions, assertedly,

may not be applied.” App. D-10 (quoting Broadrick, 413

U.S. at 615-616).

In this case, of course, the statute was subse-

quently upheld against petitioners’ as-applied chal-

lenge as well. On remand, petitioners argued that even

if the statute was constitutional on its face, it was

nonetheless unconstitutional as applied to what peti-

tioners described as the “inert” or “passive” political

speech of the “Please I.D. Me” buttons and Tea Party

shirts.* The court of appeals rejected petitioners’ as-ap-

plied challenge, holding that “[e]ven if Tea Party ap-

parel is not election-related,” a ban on such political

material is reasonable “(ijn order to ensure a neutral,

influence-free polling place[.)” App. A-6. As noted

above, petitioners do not seek review of their as-

applied claim.

Despite losing their as-applied challenge, petition-

ers persist in their assertion that Section 211B.11 is

unconstitutional on its face. This is precisely the same

issue that was raised in petitioners’ 2013 petition for a

writ of certiorari, which was denied by this Court on

® The district court held that the statute was constitutional

as applied to the “Please I.D. Me” buttons, see App. C-18 to C-19,

and petitioners abandoned their claim relating to the “Please I.D.

Me” buttons prior to their second appeal. App. B-9.

26

December 16, 2013. Given the procedural history of

this case and the now-final ruling regarding Section

211B.11’s constitutional application to political non-

campaign material, there are no compelling reasons

for this Court to grant the petition.

8. Petitioners’ argument that Section

211B.11 is overbroad because every-

thing is “political” is baseless.

Despite the constitutional application of Section

211B.11 to their political apparel, petitioners argue the

statute is unconstitutionally overbroad because every-

thing can be considered “political.”’ For example, peti-

tioners assert that this statute could be applied to

shirts that are red or blue. Pet. 22. This argument is

built on an absurd construction of the word “political”

that is not grounded in Minnesota law, common sense,

or how the statute has been applied during the last 100

years.

There are no Minnesota cases construing Section

211B.11’s speech limitation on wearing a “political

badge, political button, or other political insignia.”

However, even without an explicit statutory definition,

the meaning of “political” within Minnesota’s anti-elec-

tioneering statute is plain and unambiguous. Under

Minnesota law, words and phrases in the statute are to

be given their plain and ordinary meaning. See State

by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.

’ Petitioners have not made a vagueness challenge to Section

211B.11. See App. 9 n.2.

27

1996). Various provisions of the same statute must be

interpreted in light of each other. See Van Asperen v.

Darling Olds, Inc., 93 N.W.2d 690, 698 (Minn. 1958).

Finally, statutes are construed to “avoid absurd or un-

just consequences,” Erickson v. Sunset Mem’l Park

Ass'n, 108 N.W.2d 434, 441 (Minn. 1961), or constitu-

tional problems, see State ex rel. Pearson v. Probate

Court of Ramsey County, 287 N.W. 297, 302 (Minn.

1939).

The prohibition on wearing “political” parapherna-

lia within the polling place has a common-sense under-

standing. See Minn. Stat. § 211B.01, subd. 6 (2016)

(“An act is done for ‘political purposes’ when the act is

intended or done to influence, directly or indirectly,

voting at a primary or other election.”). See also App.

I-1 to 1-2 (Election Day Policy) (identifying non-

campaign political material as “[i]ssue oriented mate-

rial designed to influence or impact voting” and

[mJaterial promoting a group with recognizable politi-

cal views”). Petitioners and amici argue this Court’s re-

view is needed based on their catalogue of the type of

material that they believe could be considered “politi-

cal” and prohibited by Section 211B.11. See, e.g., Pet.

22. Petitioners’ speculation is an attempt to create

overbreadth where none exists. Even if petitioners

could identify a few examples of logos from organiza-

tions that should remain beyond the reach of Section

211B.11’s ban, that does not upset the balance applica-

ble to their overbreadth claim. “The ‘mere fact that one

can conceive of some impermissible applications of a

statute is not sufficient to render it susceptible to an

28

overbreadth challenge.’” Williams, 553 U.S. at 303

(quoting Taxpayers for Vincent, 466 U.S. at 800).

Moreover, contrary to petitioners’ claims, see Pet.

21, concerns of voter intimidation and distraction exist

even with non-campaign political speech within the

limited confines of the polling place. See, e.g., Burson,

504 U.S. at 206-07 (“Intimidation and interference

laws fall short of serving a State’s compelling interests

because they “deal with only the most blatant and spe-

cific attempts” to impede elections. . . . [U]ndetected or

less than blatant acts may nonetheless drive the voter

away before remedial action can be taken.”). As this

Court pointed out in Williams-Yulee v. Florida Bar,

“(t/he First Amendment does not confine a State to ad-

dressing evils [only] in their most acute form.” _ US.

___, 135 S. Ct. 1656, 1661 (2015).

Petitioners have not identified a substantial num-

ber of unreasonable applications relative to the stat-

ute’s significant legitimate sweep. See Washington

State Grange, 552 U.S. at 449 n.6. To the contrary, in

the only concrete example to date, the statute was rea-

sonably applied to petitioners’ own political apparel,

given its communication of recognizable political

views. Thus, this argument does not create a need for

this Court’s review.

29

If. The Court of Appeals’ Decision Does Not

Conflict with Any Decisions from Other

Circuits.

Petitioners also assert that review is needed be-

cause of “deep tension” among the “lower courts” re-

garding the constitutionality of a ban on political

speech. Pet. 10-15. To the contrary, there is no split

among the circuits on whether statutes can prohibit

“political” material in or near the polling place. As out-

lined above, the Eighth Circuit joins the D.C., Fifth,

Sixth, and Ninth Circuits in holding that a statute pro-

hibiting political material in or in close proximity to a

polling place does not violate the First Amendment.

See Marlin, 236 F.3d at 718; Schirmer, 2 F.3d at 122-

23; City of Sidney, 364 F.3d at 748; Browning, 572 F.3d

at 1218-19.

In an attempt to manufacture a split among cir-

cuit courts, petitioners cite North Carolina Right to

Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) and

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804

(7th Cir. 2014). These cases are focused on campaign

finance regulations, when certain campaign finance re-

portir.g requirements are triggered, and the impact on

groups who wish to engage in advocacy as part of the

general public dialogue — not within a nonpublic fo-

rum. Similarly, amici cite Citizens United v. FEC, 558

U.S. 310 (2010), for their assertion that strict scrutiny

must be applied to any regulation of political speech.

Brief for Cato Institute, et al., as Amici Curiae (“Cato

Am.”) 7. In Citizens United, the Court was considering

the “exclusion of a class of speakers from the general

30

public dialogue.” Id. , 558 U.S. at 340 (emphasis added);

compare McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 346-47 (1995) (applying exacting scrutiny to a

general ban on distribution of anonymous campaign

literature). In contrast to the regulations at issue in

Citizens United, North Carolina Right to Life, and Wis-

consin Right to Life, Section 211B.11 applies equally to

all speakers and impacts only the interior of the poll-

ing place on Election Day, not the general public dia-

logue surrounding an election. The cases are obviously

distinguishable, and most importantly, they do not ap-

ply the forum analysis that applies to the polling place.

Accordingly, the Court should reject this attempt to

manufacture a circuit court split (or a conflict with Cit-

izens United) where none exists.

Amici also contend there is a circuit split based in

part on the Sixth Circuit’s decision in Russell v. Lun-

dergan-Grimes, 784 F.3d 1037 (6th Cir. 2015). Brief for

the America Civil Rights Union, et al., as Amici Curiae

(“ACRU Am.”) 8. In Russell, the court invalidated a

300-foot buffer zone around a polling place, concluding

that although Burson had “created a 100-foot safe har-

bor,” a larger 300-foot buffer could include adjacent

spaces that are traditionally public fora, such as side-

walks and streets. Jd., 784 F.3d at 1051-52. Despite ac-

knowledging the government’s compelling interest in

the buffer zone, the court concluded that the govern-

ment had not met its burden to show that Burson’s

100-foot buffer zone was insufficient. Jd. at 1053. No

part of the Russell analysis conflicts with the court of

appeals’ conclusion that Section 211B.11 is a facially

31

valid regulation of speech within the interior of the

polling place.

Petitioners also argue review by this Court is

needed because the Oregon Court of Appeals and the

United States District Court for the District of Arizona

“invalidated” similar statutes to Section 211B.11. Pet.

15-18. Contrary to petitioners’ claims, these two deci-

sions do not conflict with the court of appeals’ rejection

of petitioners’ facial challenge to Section 211B.11.

First, in Picray v. Secretary of State, 140 Or. App.

592 (1996), aff’d by an equally divided court, 325 Or.

279 (1997), the Oregon Court of Appeals overturned an

administrative fine imposed on a voter who wore a “po-

litical” button related directly to a ballot measure in

the polling place. The Oregon Court of Appeals did not

examine the First Amendment, did not apply the fo-

rum doctrine, and did not perform an overbreadth

analysis. Instead, the challenge was predicated on the

Oregon Constitution and the decision focused on

whether Oregon’s prohibition on wearing “political

badge(s), button(s) or other insignia,” Or. Stat.

§ 260.695(4), violated Article I, section 8 of the Oregon

Constitution. Picray, 140 Or. App. at 594. Accordingly,

the Picray decision, which is from an intermediate

state court, and which does not even discuss the First

Amendment, does not conflict with the court of ap-

peals’ overbreadth analysis in this case.

Second, in Reed v. Purcell, No. CV 10-2324-PHX-

JAT, 2010 WL 4394289 (D. Ariz. Nov. 1, 2010), the

Court enjoined Maricopa County from applying Ariz.

32

Stat. § 16-1018, which punishes “[k]nowingly elec-

tioneer[ing] on election day within a polling place,” to

prohibit individuals from wearing Tea Party t-shirts to

the polling place in the 2010 election. This case does

not conflict with the court of appeals’ decision for at

least two reasons. First, the Reed court enjoined appli-

cation of this statute because it concluded that Mari-

copa County had likely engaged in viewpoint

discrimination by only applying the prohibition to the

Tea Party and not to other political groups. See 2010

WL 4394289 at *3. For that reason, the Reed court con-

cluded the plaintiffs had demonstrated a likelihood of

success on their viewpoint discrimination claim, even

under the applicable standard for a nonpublic forum.

Id. Second, the court also concluded that Maricopa

County had failed to identify an objective standard for

the definition of “electioneering.” Id. at *4. For that rea-

son, the court concluded the plaintiffs had demon-

strated a likelihood of success on their due process

claim. Importantly, because the Reed Court found

these infirmities, it did not apply this Court’s forum or

overbreadth analysis.

In contrast to Reed, here there is no dispute that

Section 211B.11 and the Election Day Policy are view-

point neutral.* Moreover, petitioners are not making a

vagueness challenge and, unlike the lack of direction

provided by Maricopa County about the meaning of the

—

8 There is also no evidence in the record that Section 211B.11

was selectively applied in 2010 or in any previous or subsequent

elections, though any such allegations would be irrelevant to pe-

titioners’ facial challenge.

33

word “electioneering,” the Election Day Policy provides

specific, viewpoint-neutral direction on the type of par-

aphernalia prohibited from the polling place on Elec-

tion Day.

In sum, despite petitioners’ claims to the contrary,

there is no circuit split in this case, and neither Picray

nor Reed conflict with the court of appeals’ decision up-

holding Section 211B.11 against petitioners’ facial

challenge.

III. The Court of Appeals’ Decision Does Not

Conflict with Any Supreme Court Precedent.

A. The Court of Appeals’ Decision Does Not

Conflict with Jews for Jesus.

Petitioners assert that the court of appeals’ deci-

sion conflicts with Supreme Court precedent — without

explicitly identifying which Supreme Court precedent

they rely upon for this argument. Pet. 18. It appears

petitioners assert that review of the court of appeals’

overbreadth analysis is needed because the court’s de-

cision conflicts with Board of Airport Commissioners v.

Jews for Jesus, 482 U.S. 569 (1987). Pet. 19.

The court of appeals’ decision does not conflict

with Jews for Jesus, because the speech restriction in

that case is dramatically broader than Minnesota’s

limited speech restriction that applies only in polling

places on Election Day. In Jews for Jesus, the Court

was confronted with a resolution promulgated by

the Board of Airport Commissioners for Los Angeles

34

International Airport. The resolution provided, in per-

tinent part: “the Central Terminal Area of Los Angeles

International Airport is not open for First Amendment

activities by any individual and/or entity.” Id., 482 U.S.

at 570-71. In short, this ordinance, on its face,

“reache[d] the universe of expressive activity, and, by

prohibiting all protected expression, purportled] to

create a virtual ‘First Amendment Free Zone[.]’” Jd. at

574 (emphasis in original). Not surprisingly, the Court

held that the resolution was “substantially overbroad”

and “not fairly subject to a limiting-construction,” id.

at 577, noting that the resolution did “not merely reg-

ulate expressive activity ... that might create prob-

lems such as congestion or disruption of the activities

of those who use [the airport,]” but that it prohibited

all First Amendment activity, including “even talking

and reading, or the wearing of campaign buttons or

symbolic clothing,” id. at 574-75. The Court concluded

that, even if an airport was a nonpublic forum, no gov-

ernment interest could justify excluding all forms of

protected expression from the airport and the ordi-

nance was facially unconstitutional. Jd. at 575.

Jews for Jesus is easily distinguishable from Sec-

tion 211B.11 in several critical ways. First, unlike the

resolution at issue in Jews for Jesus, Section 211B.11

does not purport to prohibit all protected expression;

rather, it is limited to certain political material. Sec-

ond, unlike an airport that is used by individuals 365

days a year to travel and by many others engaged in

commerce and other activities, Section 211B.11 is lim-

ited to the inside of a polling place on Election Day, a

35

forum that is only used by a limited number of individ-

uals for a brief amount of time and for one purpose: to

vote. Third, Section 211B.11 does not even prohibit all

buttons and t-shirts, but rather only those with “polit-

ical” content. Section 211B.11 is significantly narrower

in the type of speech it prohibits and the scope of the

time and location where the prohibition applies than

the speech prohibition at issue in Jews for Jesus.

Accordingly, the court of appeals’ overbreadth

analysis does not conflict with Jews for Jesus.

B. Review of the Forum Analysis Is Un-

necessary Because It Is An Appropriate

Test for Political Speech in a Nonpub-

lic Forum.

Finally, petitioners imply in the petition, and

amici assert, that the court of appeals’ First Amend-

ment analysis was erroneous because the court con-

cluded that the interior of a polling place is a nonpublic

forum, in which speech restrictions like Section

211B.11 are constitutional if they are reasonable and

viewpoint neutral. Pet. 19; Cato Am. 4-6.9 The court of

appeals’ unanimous holding on this issue is in accord

with Supreme Court precedent and with every court

decision that has analyzed speech restrictions within

a polling place. See supra Section I.B.1, at 19.

® This was petitioners’ primary argument in their 2013 peti-

tion that was denied by this Court.

36

Apparently recognizing the futility of arguing that

a polling place is a public forum, amici simply argue

that this Court’s forum doctrine should be jettisoned

when analyzing limitations of political speech. Cato

Am. 6. The argument that this Court’s forum analysis

is inappropriate when the speech at issue is political

speech (as opposed to non-political speech) finds no

support in this Court’s precedent. Not surprisingly,

neither petitioners nor amici cite to a single case in

which a court has concluded that the forum analysis is

not appropriate because the speech at issue in the par-

ticular forum was political. Instead, as detailed above,

amici cite to Citizens United, which considered a regu-

lation that excluded a class of speakers from the gen-

eral political discourse, unlike Section 211B.11. Cato

Am. 7. Amici also cite to McCullen v. Coakley, _ US.

___, 134 S. Ct. 2518 (2014), in which this Court invali-

dated a 35-foot buffer zone that applied only to abor-

tion clinics as an unconstitutional time, place, or

manner regulation of speech. ACRU Am. 16. Unlike the

facts presented here, McCullen considered a content-

neutral regulation (rather than the content-based reg-

ulation of Section 211B.11) and its impact on the public

sidewalks surrounding the clinics (rather than the

nonpublic forum of a polling place). Id., 134 S. Ct. at

2535. Neither Citizens United nor McCullen applied

the First Amendment analysis applicable to petition-

ers’ facial challenge to Section 211B.11, and as a result,

these cases are inapposite.

Contrary to amici’s arguments, the Court has re-

peatedly applied the forum analysis to content-based

37

restrictions aimed at “political” speech. See, e.g., United

States v. Kokinda, 497 U.S. 720, 725-26 (1990) (plural-

ity opinion) (applying forum analysis and noting lower

level of scrutiny applied to ban on political advertising

on post office sidewalk); Burson, 504 U.S. at 211 (plu-

rality) (applying forum analysis to law limiting “cam-

paign speech” in public forum); Cornelius, 473 U.S. at

809 (applying forum analysis to uphold ban on legal

defense and political advocacy groups from charity

drive aimed at federal employees in nonpublic forum

because “avoiding the appearance of political favorit- .

ism is a valid justification for limiting speech in a non-

public forum”); Greer v. Spock, 424 U.S. 828, 838-39

(1976) (applying forum analysis and upholding regula-

tion preventing political campaigning on nonpublic fo-

rum — a military base); see also Lehman v. City of

Shaker Heights, 418 U.S. 298, 304 (1974) (upholding

city’s refusal to accept political advertising on city

buses); see also Bryant v. Gates, 532 F.3d 888, 896-97

(D.C. Cir. 2008) (holding that prohibition on “political”

advertisements in Civilian Enterprise Newspapers

(CENs), distributed on nonpublic fora of military in-

stallations, was reasonable in light of purpose of fo-

rum).

The fact that Section 211B.11’s content restriction

is aimed at “political” speech does not change the ana-

lytical framework from the traditional forum analysis

to a per se rule requiring heightened scrutiny. The fo-

rum analysis was properly applied by the court of ap-

peals to the statute challenged here, and as a result,

there is no need for this Court to review the court of

38

appeals’ decision rejecting petitioners’ facial challenge

to Section 211B.11.

S

CONCLUSION

Minnesota law, like that of every other state, has

long protected the sanctity of the polling place by cre-

ating a zone in which the only occurrence is voting-

related activity. A critical piece of this protection is

Section 211B.11, a reasonable and viewpoint-neutral

restriction on wearing “a political badge, political but-

ton, or other political insignia” inside the polling place.

The court of appeals correctly concluded that this re-

striction was not facially overbroad. Respondents re-

spectfully request that the Court deny the petition.

Dated: September 1, 2017

Respectfully submitted,

DANIEL P. ROGAN*

*Counsel of Record

BETH A, STACK

HENNEPIN COUNTY ATTORNEY'S OFFICE

A-2000 Government Center

Minneapolis, MN 55487

(612) 348-5529

daniel.rogan@hennepin.us

Atiorneys for Respondents

Virginia Gelms, in her official

capacity as Elections Manager for

Hennepin County, and Michael O.

Freeman, in his official capacity as

Hennepin County Attorney

39

Rosert B. RocHE

RAMSEY COUNTY ATTORNEY'S OFFICE

121 7th Place East, Suite 4500

St. Paul, MN 55101

(651) 266-3230

robert.roche@co.ramsey.mn.us

Attorneys for Respondents

Joe Mansky, in his official capacity

as Elections Manager for Ramsey

County, and John J. Choi, in his

official capacity as Ramsey County

Attorney

NATHAN J. HARTSHORN

OFFICE OF THE MINNESOTA ATTORNEY

GENERAL

445 Minnesota Street, Suite 1800

St. Paul, Minnesota 55101

(651) 757-1252

nathan.hartshorn@ag.state.mn.us

Attorneys for Respondent

Steve Simon, in his official capacity

as Minnesota Secretary of State