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

In The

Supreme Court of the United States

MINNESOTA VOTERS ALLIANCE, ET AL.,

Petitioners,

v.

JOE MANSKY, ET AL.,

Respondents.

On Petition For A Writ of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

MOTION FOR LEAVE TO FILE AND

AMICUS CURIAE BRIEF OF THE

CENTER FOR COMPETITIVE POLITICS

IN SUPPORT OF PETITIONERS

ALLEN DICKERSON

Counsel of Record

ZAC MORGAN

CENTER FOR COMPETITIVE

POLITICS

124 8S. West St., Ste. 201

Alexandria, VA 22314

adickerson@campaignfreedom.org

(703) 894-6800

July 3, 2017 Counsel fur Amicus Curiae

LEGAL PRINTERS LLC, Washington DC e 202-747-2400 @ legalprinters.com

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

Pursuant to Rule 37.2(b) of the Rules of this

Court, the Center for Competitive Politics moves for

leave to file the attached amicus curiae brief in

support of the petition for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Eighth Circuit in the instant matter. All

parties were timely noticed, pursuant to Rule 37.2(a),

of Amicus’s intention to file the attached brief.

Petitioners have filed a blanket consent to the filing

of amicus curiae briefs in this case. Respondent Steve

Simon, Secretary of State for Minnesota has

consented to the filing of this brief, the remaining

Respondents, however, have not consented.

The Petition asks whether it is acceptable for a

government to bar issue speech inside a polling place,

even when the issue speech is unrelated to any

candidate campaign. This question is of critical

interest to Amicus Center for Competitive Politics, a

nonprofit corporation dedicated to the protection and

defense of the political rights ensured by the First

Amendment. Amicus often represents clients in state

and federal courts, including before this Court, on

matters related to the regulation or suppression of

issue speech.

Accordingly, Amicus respectfully requests that

this Court grant its motion for leave to file.

Dated: July 3, 2017

Respectfully submitted,

ALLEN DICKERSON

Counsel of Record

ZAC MORGAN

CENTER FOR COMPETITIVE

POLITICS

1245S. West St., Ste. 201

Alexandria, VA 22314

adickerson@campaignfreedom.org

(703) 894-6800

TABLE OF CONTENTS

ee Se I sreeritcncineseinecorsenesecbesstesnmniserseenetuns il

Interest Of Amicus Curiae.......0rcrse:ccccsceesecesssserereesevese 1

Summary of the Argume4nt .....0.000cccccccrsesssccessersescvevees 1

III sac nttiis tsntninhtaptitinaiedencaandesiniupetereieiettinan 2

I. Burson v. Freeman, which is deeply rooted in

a particular, inapplicable history, does not

ee hata cdeieseiicshddcencsactimniaibacinantaastebaleiipaiiaiadiintetiesks 2

Il. At most, Minnesota’s ban should be limited to

apparel that unambiguously advocates for our

against candidates on the ballot..................... 6

III. Left unchecked, the Eighth Circuit’s reliance

on a “peace, order, and decorum” interest

encourages illiberal and inaccurate beliefs

ee i cricncislindessedictcuntecidegnnnsorers 10

SESE AR ARLEY LTE ED LE NL RD URE Ee PO 13

TABLE OF AUTHORITIES

Cases

Ariz. Free Enterprise Club’s Freedom Club PAC v.

Bennett,

CR ET eae ae l

Buckley v. Valeo,

I ties 8,9

Buckley v. Valeo,

519 F.2d 821 (D.C. Cir. 1975) ..............ccc.0000. 6

Burson v. Freeman,

Se en ei passim

Citizens United v. Fed. Election Comm'n,

RR ae cs ee 1

Cohen v. Calif.,

I a 11

Fed. Election Comm'n v. Wis. Right to Life, Inc..,

ne ee 8

Matal v. Tam,

582 U.S. oO) Sy; ees 11

McCutcheon v. Fed. Election Comm'n,

a Ee aE 1

Mills v. Ala.,

Ney PRIN CID uicshsccusisttnseonisnscidtnccevecabe 4,5

iii

Monitor Patriot Co. v. Roy,

I nN cals 2

Org. for a Better America v. Keefe,

es I vaiciietiaSiciccriscctasinn sicnentsestnonsicl 11

Police Dep’t of Chicago v. Mosley,

II iigtediiicnnctncetesetiinnckinmdidinnaien 3

Real Truth About Abortion, Inc. v. Fed. Election

Comm'n,

681 F.3d 644 (4th Cir. 2012) ................cc.00000. 9

Reed v. Town of Gilbert,

Se ie IIE oo i ccna i cusdnccuaseenedssueksocs 5

Republican Party v. Minn.,

416 F.3d 738 (8th Cir. 2005) ..................000.008 4

Roth v. United States,

I 2

Street v. N.Y.,

re We IED sc vecdisoscisedcncestévéetdeteccectaes 11

United States v. Harriss,

EEE eee ee 6

United States v. Nat'l Comm. for Impeachment,

469 F.2d 1136 (2d Cir. 1972)................ccccesce. 6

Whitney v. Calif.,

I I i 12

iv

Statutes and Rules

Oe I lll 9

Tenn. Code Ann. § 2-7-111(b) (Supp. 1991) ............ 6

Other Authorities

“1888 Presidential General Election Results —

Indiana”,

United States Election Atlas ....................66. 4

Paul F. Boller,

Presidential Campaigns From George

Washington to George W. Bush (Oxford

University Prees 2004) ........cccccsssccccosssscscsseees 4

Gilbert Cruz, “A Brief History of the Flag Lapel Pin”,

Time Magazine, July 3, 2008.....................0.. 7

Greg Lukianoff and Jonathan Haidt, “The Coddling

of the American Mind”,

The Atlantic, Sept. 2016............0scccsceseseeesees 11

Simon P. Newman,

Parades and the Politics of the Street; Festive

Culture in the Early American Republic

(University of Pennsylvania Press 2010) ..... 8

SECNAV Instruction 10520.6 (May 31, 2002)........ )

Eugene Volokh, “Wearing ‘Don’t Tread on Me’

insignia could be punishable racial harassment”,

The Washington Post, Aug. 3, 2016.............. 8

David Wright and Sunlen Miller, “Obama Dropped

Flag Pin In War Statement”,

Se Pe Fs i, BIE eicnccevnccceccvcccstsccacscenes

INTEREST OF AMICUS CURIAE'

The Center for Competitive Politics is a

nonpartisan, nonprofit organization that works to

protect and defend the First Amendment rights of

speech, assembly, and petition. As part of that

mission, the Center represents individuals and civil

society organizations, pro bono, in cases raising First

Amendment objections to burdensome regulation of

core political activity. In addition, the Center has

participated as amicus curiae in many of this Court's

most important First Amendment cases, including

McCutcheon v. Federal Election Commission, 134 S.

Ct. 1484 (2014), Arizona Free Enterprise Club’s

Freedom Club PAC v. Bennett, 564 U.S. 721 (2011),

and Citizens United v. Federal Election Commission,

558 U.S. 310 (2010).

SUMMARY OF THE ARGUMENT

In-person voting always has, and hopefully

always will, require citizens with disagreements

about policy and politics to share a communal space

as they wait to cast their ballots. The State of

Minnesota believes that apparel conveying any

“political” idea threatens to destroy this harmony and

cause chaos at the polling place. Consequently, it has

banned such messages, a policy enforced by election

judges.

' No counsel for a party authored this brief in whole or part, nor

did any person or entity, other than amicus or its counsel,

financially contribute to preparing or submitting this brief. The

parties’ counsel of record received timely notice of the intent to

file the brief under Rule 37.

This Court’s precedents regarding security of

the polling place and elections do not command such

an outcome, and other precedents counsel in favor of

a narrow, bright-line rule prohibiting only messages

that expressly advocate for candidates on the ballot.

Otherwise, Americans ought to be able to

briefly tolerate messages they may disagree with,

especially during the defining moment at which

citizens collectively choose their representatives.

Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-272

(1971) (it is “conceded that the First Amendment was

‘fashioned to assure the unfettered interchange of

ideas for the bringing about of political and social

changes desired by the people”) (quoting Roth v.

United States, 352 U.S. 476, 484 (1957)).

Declining review will only encourage the

illiberal assumption behind Minnesota’s law: that

Americans are incapable of being around those with

whom they disagree. That assumption is unproven,

and cannot survive strict scrutiny. The Petition

should be granted.

ARGUMENT

A Burson v. Freeman, which is deeply

rooted in a particular, inapplicable

history, does not control.

The Eighth Circuit invoked Burson v. Freeman,

504 U.S. 191 (1992), to supply a governmental

interest served by Minnesota’s speech ban. E.g. Pet.

App D-8 But Burson is a narrow exception to the

general rule, enshrined in the First Amendment, that

“[t]lo permit the continued building of our politics and

culture...our people are guaranteed the right to

express any thought, free from government

censorship.” Police Dep’t of Chicago v. Mosley, 408

U.S. 92, 95-96 (1972). Burson’s exception was rooted

in a particular history, and cannot bear the weight the

Eighth Circuit would place upon it.

The Burson Court upheld a limited ban on

polling-place electioneering. But that ruling was

based in large part upon late 19th and early 20th

Century decisions to adopt certain measures designed

to protect the franchise, principally the secret ballot

and a curtilage against electioneering in and around

polling places. Burson, 504 U.S. at 206 (“In sum, an

examination of the history of election regulation in

this country reveals a persistent battle against two

evils: voter intimidation and election fraud. After an

unsuccessful experiment with an unofficial ballot

system, all 50 States, together with numerous other

Western democracies, settled on the same

solution...”). The Court chose not to dislodge this

“time-tested consensus.” Burson, 504 U.S. at 206; also

id. at 205 (“The roots of Tennessee’s regulation can be

traced back to two provisions passed during this

period of rapid reform”). But that decision was

primarily driven by the specific history of voter

intimidation and voter fraud conducted by perfidious

“campaign workers” out to win at any cost. Burson,

504 U.S. at 204 (“In earlier times our polling places

were frequently, to quote the litany, ‘scenes of battle,

murder, and sudden death,” but because of an 1888

New York statute, “[t]his also has come to an end...”)

(citation omitted).

Beyond physical mayhem, the Court also

pointed to evidence that the absence of such

arrangements may have actually flipped the outcome

of certain elections. Jd. at 201 n.6 (“Evans reports that

the bribery of voters in Indiana in 1880 and 1888 was

sufficient to determine the results of the election...”);

see also Paul F. Boller, Presidential Campaigns: From

George Washington to George W. Bush, p. 160 (Oxford

University Press 2004) (noting a popular schoolyard

song that circulated regarding the 1888 Indiana

election, “Steamboat coming ‘round the bend;

Goodbye, old Grover, goodbye[;] Filled up full with

Harrison’s men; Goodbye, old Grover, goodbye!”);

“1888 Presidential General Election Results —

Indiana”, United States Election Atlas, (Benjamin

Harrison defeated President Cleveland in Indiana by

2,348 votes).?

Thus, the Burson Court identified the

historical danger of political campaigns operating “in

and around the polls” and directly upsetting “peace,

order, and decorum,” Mills v. Ala., 384 U.S. 214, 218

(1966), by fighting “[s]ham battles...to keep away

elderly and timid voters of the opposition.” Burson,

504 U.S. at 202. Accordingly, it approved, under strict

scrutiny, the narrow rules established in response to

that crisis. Id. at 200 (“While we readily acknowledge

that a law rarely survives such scrutiny, an

examination of the evolution of election reform, both

in this country and abroad, demonstrates the

necessity of restricted areas in or around polling

places”); Republican Party v. Minn., 416 F.3d 738, 749

(8th Cir. 2005), cert. denied sub nom. Dimick v.

Republican Party, 546 U.S. 1157 (2006) (“The strict

scrutiny test requires the state to show that the law

2 Available at:

http://uselectionatlas.org/RESULTS/state.php?year=1888&fips

=18&f=0&off=0&elect=0

that burdens the protected right advances a

compelling state interest...”).°

But even at the time, Justice Stevens, joined by

Justices O’Connor and Souter, questioned the Court’s

reliance upon century-old history in a strict scrutiny

case. Burson, 504 U.S. at 222 (Stevens, J., dissenting)

(“Never have we indicated that tradition was

synonymous with necessity”). That objection has even

greater salience where the facts do not implicate that

history. There is no evidence of anything remotely

similar to America’s 19th Century voter crisis

occurring in Minnesota, nor was Petitioner’s personal

decision to wear a particular shirt analogous to the

organized violence Burson sought to prevent.

The Burson Court's reasoning does not apply to

the statute challenged here, and its narrow exception

to the general First Amendment prohibition on

speech bans cannot save Minnesota’s overbroad law.

3 The court of appeals below, despite its reliance on Burson, did

not apply strict scrutiny. Pet. App. D-8 Rather, the court

expressly distinguished Burson, on the ground that the polling

place itself is a nonpublic forum. Jd. Given the form of speech

being discriminated against here—political speech, the most

central type of expression protected by the Speech Clause of the

First Amendment—strict scrutiny nevertheless ought to apply.

Mills, 384 U.S. at 218 (“Whatever differences may exist about

interpretations of the First Amendment, there is practically

universal agreement that a major purpose of that Amendment

was to protect the free discussion of governmental affairs”); see

also Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (striking

down, under strict scrutiny, public sign code applying different

rules to “Political” or “Ideological” signs and “Temporary

Directional Signs”).

Il. At most, Minnesota’s ban should be

limited to apparel that unambiguously

advocates for or against candidates on

the ballot.

In addition to being properly rooted in a

particular sense of history, the Tennessee ban upheld

in Burson had the virtue of being straightforward and

easily understood. Tennessee banned the display and

distribution of campaign, as opposed to political,

materials, and expressly prohibited “solicitation of

votes for or against any person or political party or

position on a question.” Burson, 504 U.S. at 193-194

(quoting Tenn. Code Ann. § 2-7-111(b) (Supp. 1991)).

Such narrow specificity is vital for a speech

regulation to survive strict scrutiny. See United

States v. Harriss, 347 U.S. 612, 625 (1954) (narrowly

construing the Federal Regulation of Lobbying Act to

shield unpaid persons, because the governmental

interest only extended to “who is being hired, who is

putting up the money, and how much”). Careful

drafting is especially vital for laws that, while

purporting to regulate the act of campaigning, are

“susceptible to a reading necessitating” regulation of

those “whose only connection with the elective process

arises from completely nonpartisan discussion of

issues of public importance.” Buckley v. Valeo, 519

F.2d 821, 870 (D.C. Cir. 1975) (en banc).

This case provides an opportunity for the Court

to reaffirm that vague efforts to regulate mere

“political activity” cannot be reconciled with the First

Amendment. United States v. Natl Comm. for

Impeachment, 469 F.2d 1135, 1142 (2d Cir. 1972) (“On

the Government’s thesis every little Audubon Society

chapter would be a ‘political committee,’ for

‘environment’ is an issue in one campaign after

another...The dampening’ effect on _ ([Flirst

[A]mendment rights and the potential for arbitrary

administrative action that would result from such a

situation would be intolerable”).

Here, an individual was threatened with

possible criminal prosecution for wearing a shirt with

a design inspired by the Gadsden flag—a symbol of

the Revolution that gave us the franchise in the first

place. As this case shows, Minnesota’s law contains

no limiting principle on what may or may not be

considered a political message.

Minnesota’s failure to properly tailor its law is

disappointing, but merely reflects the human

tendency to see patterns and read messages into even

the most universal symbols. Indeed, quite recently,

the mere act of wearing an American flag pin was

seen by some as support for the then-current

administration or solidarity with those supportive of

the Iraq war. Gilbert Cruz, “A Brief History of the

Flag Lapel Pin”, Time Magazine, July 3, 2008, (“But

it was Richard Nixon who brought the pin to national

attention... Nixon commanded all of his aides to go

and do likewise. The flag pins were noticed by the

public, and many in Nixon’s supposed ‘silent majority’

began to similarly sport flags on their lapels”); David

Wright and Sunlen Miller, “Obama Dropped Flag Pin

In War Statement”, ABC News, Oct. 4, 2007 (“You

know, the truth is that right after 9/11, I had a pin,’

[then-Sen. Barack] Obama said. ‘Shortly after 9/11,

4 Available at:

http://content.time.com/time/nation/article/0,8599, 1820023,00.h

tml

particularly because as we're talking about the I[raq

War, that became a substitute for I think true

patriotism...””).5

Similarly, whether a voter’s apparel is “issue

oriented material designed to influence or impact

voting,” Pet. App. I-2, will turn, inherently, on the

opinions of the viewer. Here, the danger of

inconsistent interpretation and enforcement is

compounded by Minnesota’s decision to leave its

intent-and-effect test to the judgment of poll

workers.® Cf. Fed. Election Comm'n v. Wis. Right to

Life, Inc., 551 U.S. 449, 468 (2007) (“No reasonable

speaker would choose to” act if the “only defense to a

criminal prosecution would be that its motives were

pure. An intent-based standard ‘blankets with

uncertainty whatever may be said,’ and ‘offers no

security for free discussion”) (quoting Buckley v.

Valeo, 424 U.S. 1, 43 (1976) (per curiam)).

Given such a “standard,” all sorts of non-

electoral speech will be banned—even speech that the

wearer did not intend to carry a partisan message. See

Simon P. Newman, Parades and the Politics of the

Street: Festive Culture in the Early American Republic

p. 163 (University of Pennsylvania Press 2010)

5 Available at: http://abcnews.go.com/Politics/story?id=3690000

6 Even the meaning of a symbol as venerable as the Gadsden flag

can vary from person to person. See Eugene Volokh, “Wearing

‘Don’t Tread on Me’ insignia could be punishable racial

harassment”, The Washington Post, Aug. 3, 2016 (describing

complaint filed with the Equal Employment Opportunity

Commission regarding a co-worker’s display of a Gadsden flag);

available at: https://www.washingtonpost.com/news/volokh-

conspiracy/wp/20 16/08/03/wearing-dont-tread-on-me-insignia-

could-be-punishable-racial-harassment.

(recounting that the 1790s era Federalist Party

encouraged citizens to wear a black cockade as a show

of solidarity during the Quasi-War, and initially

viewed the positive citizen response “as evidence of a

rise in the popularity of the[ Adams] government,” but

“it seems likely that many citizens adopted the badge

as evidence of their patriotism” during the crisis, as

“(with the end of the Quasi-War, the popularity of the

black cockade faded rapidly...”).’

Thankfully, there is no need for this Court to

either overturn Burson or fashion a new standard out

of thin air. It need ~ierely read “political” to mean

“express advocacy” or its functional equivalent, a

standard that has been readily applied in the

campaign finance context. E.g. Real Truth About

Abortion, Inc. v. Fed. Election Comm'n, 681 F.3d 544,

555 (4th Cir. 2012) (upholding federal express

advocacy requirements). That is, apparel ought only

be prohibited if it “is unmistakable, unambiguous,

and suggestive of only one meaning,” 11 C.F.R. §

100.22(b)(1), and that meaning is “vote for or against

this particular candidate on today’s ballot.”See also

Buckley, 424 U.S. at 44, n.52 (“This construction

would restrict application of [the policy] to

’ Similarly, the use of the Gadsden Flag does not demonstrate

granular political views such as support for a particular

candidate. If it did, what should this Court make of the United

States Navy’s practice of flying a version of that flag in time of

war? SECNAV Instruction 10520.6 (May 31, 2002) (“To provide

for the display of the first navy Jack on board all U.S. Navy ships

during the Global War on Terrorism...a flag consisting of 13

horizontal alternating red and white stripes bearing diagonally

across them a rattlesnake in a moving position with the motto

‘Don’t Tread On Me.”’).

10

communications containing express words of election

or defeat...”).

Not only does this reading of “political” provide

vital clarity, it would limit the government’s ban to

obvious campaigning for and against candidates for

office. This approach both prevents subjective

determinations of symbolic meaning by low-level

state workers and narrows the state’s regulation to

accord with the specific governmental interest

identified in Burson.

Ill. Left unchecked, the Eighth Circuit’s

reliance on a “peace, order, and

decorum” interest encourages illiberal

and inaccurate beliefs about the

electorate.

Aside from Burson, the Eighth Circuit also

relied on this Court’s concession, in Mills v. Alabama,

that the government has an interest in maintaining

“peace, order, and decorum” on Election Day. Pet.

App. D-8. Certainly, that interest was also on the

min.l of the Burson Court, which made numerous

references to the late 19th Century’s voting “system”

where, thanks to thuggish campaign workers, “coats

were torn off the backs of voters, [and] ballots of one

kind...[were] snatched from voters’ hands and others

put in their places, with threats against using any but

the substituted ballots.” Burson, 504 U.S. at 204, n.8.

Nothing similar has been alleged here. The

naked invocation of the peace and order interest,

unaccompanied by any evidence supporting a well-

reasoned fear that the peace will be breached, cannot

satisfy strict scrutiny. There is no reason to believe

that the modern polling place will be transformed into

11

a 19th Century tavern brawl merely because issue

speech—identified with the founding symbols of the

Republic or otherwise—appears on voter apparel.

Moreover, this Court’s storied precedents have

long preserved and celebrated the right of Americans

to wear political messages, and presumed that

Americans uncomfortable with particular messages

are able to avoid resorting to violence. Cohen v, Calif,

403 U.S. 15, 21 (1971) (“Of course, the mere presumed

presence of unwitting listeners or viewers does not

serve automatically to justify curtailing all speech

capable of giving offense”); Org. for a Better America

vu. Keefe, 402 U.S. 415, 419 (1971) (“Those practices

were offensive to them, as the views and practices of

petitioners are no doubt offensive to others. But so

long as the means are peaceful, the communication

need not meet standards of acceptability”). Mere

words are not violence or a likely predicate to it, and

the State has no right to suppress them under a

theory that they are. See Matal v. Tam, 582 U.S. at

_, slip op. at 22-23 (June 19, 2017) (Alito, J.,

controlling op.) (“Giving offense is a viewpoint...‘the

public expression of ideas may not be prohibited

merely because the ideas are themselves offensive to

some of their hearers”) (quoting Street v. N.Y., 394

U.S. 576, 592 (1969)).

Declining to pointedly declare otherwise will

only feed the illiberal assumptions undergirding

Minnesota’s policy, and give aid and comfort to other

actors seeking to use spurious threats of violence to

ban speech. Such an illiberal fantasy—a belief that

individuals simply cannot help violently reacting to

disfavored speech—should be rejected entirely,

particularly given its logical consequences. Greg

Lukianoff and Jonathan Haidt, “The Coddling of the

12

American Mind”, The Atlantic, Sept. 2015 (“When

speech comes to be seen as a form of violence,

vindictive protectiveness can justify a hostile, and

perhaps even violent, response”)®; but see Whitney v.

Calif, 274 U.S. 357, 376 (1927) (Brandeis, J.,

concurring) (“Fear of serious injury cannot alone

justify suppression of free speech and assembly. Men

feared witches and burnt women. It is the function of

speech to free men from the bondage of irrational

fears”).

This Court has found merit in preventing

explicit campaigning in the polling place. But

extending that principle to reach general statements

of political belief unrelated to the ballot is

unsupported by this Court’s precedents and cannot

survive strict scrutiny. Doing so in order to prevent

imagined violence infantilizes Americans, discounts a

century of political progress, and encourages the

development of a culture inimical to the free and

unhindered exchange of views.

8 Available at:

https://www.theatlantic.com/magazine/archive/20 15/09/the-

coddling-of-the-american-mind/399356/

For the foregoing reasons, this Court ought to

grant the writ.

July 3, 2017

13

CONCLUSION

Respectfully submitted,

ALLEN DICKERSON

Counsel of Record

ZAC MORGAN

CENTER FOR COMPETITIVE

POLITICS

1248S. West St., Ste. 201

Alexandria, VA 22314

adickerson@campaignfreedom.org

(708) 894-6800

Counsel for Amicus Curiae