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

No. 16-1435

In The

Supreme Court of the United States

MINNESOTA VOTERS ALLIANCE;

ANDREW E. CILEK; and SUSAN JEFFERS,

Petitioners,

v

JOE MANSKY, in his official capacity

as Elections Manager for Ramsey County;

VIRGINIA GELMS, in her official capacity as

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; and STEVE SIMON, in his

official capacity as Secretary of State of Minnesota,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITIONERS’ BRIEF ON THE MERITS

ERICK G. KAARDAL J. DAVID BREEMER

Mohrman, Kaardal Counsel of Record

& Erickson, P.A. WENCONG FA

150 South 5th Street DEBORAH J. LA FETRA

Suite 3100 OLIVER J. DUNFORD

Minneapolis, MN 55402 Pacific Legal Foundation

Telephone: (612) 465-0927 930 G Street

kaardal@mklaw.com Sacramento, CA 95814

Telephone: (916) 419-7111

jbreemer@pacificlegal. org

Counsel for Petitioners

QUESTION PRESENTED

ls Minnesota Statute Section 211B.11(1), which

broadly bans all political apparel at the polling place,

facially overbroad under the First Amendment?

il

CORPORATE

DISCLOSURE STATEMENT

Minnesota Voters Alliance is a nonprofit 501(c)(4)

corporation incorporated under the laws of Minnesota.

Minnesota Voters Alliance has no parent corporation,

and no publicly held company owns 10% or more of its

stock.

ill

TABLE OF CONTENTS

ee FF EIT FIED csniccniccdnncncesescscsosscoccssosstvaves i

CORPORATE DISCLOSURE STATEMENT............ il

Fe CO Fee EE SD tetscnvncsiveccssccsscsnvesssorscren vi

ERASED oa ee ene ae aR l

TTT in ssncuslraiteesstnhdih valesieeiinedsecindalanoenenenieniaboiys ]

CONSTITUTIONAL AND STATUTORY

gg I Ener 1

REE ESA ARS Onin ea Renn eae 2

STATEMENT OF THE CASE.............c-ceccccccessscceserees 4

a FE siiictictepttedntenciintenticnudicees 4

1. The Ban on “Political” Apparel

and Statutory Context ..........................6.. 4

2. The “Election Day Policy” ........................ 7

3. Enforcement of the “Political”

PT TT sh ctciniccmichentetesimapapdbiasenoiedndasdniens 9

Bs Ie BI i ideicinsecsonsscenasniisccansessencs 10

Dh * Be a INI fhiiic cceniccssdecssvesscvencses 10

2. Appellate Proceedings............................ 12

SUMMARY OF ARGUMENT .....0000000..0.....cc eee ee eeee 14

TE Sich innibaiticinicaleninchihiatetibbimabiianditniendinindes 17

I. MINN. STAT. § 211B.11(01) BROADLY

BANS ALL POLITICALLY

EXPRESSIVE APPAREL ................ccceeeeeseeeees 17

A. First Amendment Principles....................... 18

BP Re hcicsiteninennsdentinntddadcensentians 18

IV

2. Content-Based and Political

Speech Restrictions Are

Subject to Strict Scrutiny ...................... 19

3. Facial Challenges Under the

Overbreadth Doctrine ..........................+ 21

B. Minn. Stat. § 211B.11(1)

Bans a Vast Amount of Peaceful,

Passive, Protected Speech.......................0068 23

1. Section 211B.11(1) Burdens an

Astounding Amount of Protected

SP cepuivenibe 23

2. The Provision Threatens Other

Forms of Protected Speech .................... 26

Il. NO CONCEIVABLE INTEREST

SUPPORTS A BAN ON ALL

OE Es FU WER vinkssvestvcccnsessecstnosonsees 30

A. The State’s Interest in Fair and

Orderly Elections Cannot Justify

a Total Political Apparel Ban...................... 31

B. The Statute’s Vague Prohibition

Invites Expansive Enforcement

and Viewpoint Discrimination.................... 35

C. Burson Does Not Support the Statute........ 36

D. The Statute Has No Legitimate Sweep

or Is Substantially Overbroad .................... 38

Ill. NO POSSIBLE NARROWING

CONSTRUCTION CAN SAVE

NE hth is ctiaslacckasuibiubesbiintiietimnideialiins 42

capitis invoniuensidenctins catecisanbetbaepianeetinatavies 48

APPENDIX

Minn. Stat. § 211B.11

ee eee ee eee eee eee ee ee |

v1

TABLE OF AUTHORITIES

Cases

Arizona Free Enterprise Club’s Freedom

Club PAC v. Bennett, 564 U.S. 721 (2011)........... 36

Ashcroft v. Free Speech Coalition,

— gis Bf. oe 33, 40-41, 44-46

Bachellar v. Maryland, 397 U.S. 564 (1970)............ 35

Board of Airport Comm’rs v.

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

Boos v. Barry, 485 U.S. 312 (1988)..................... 23, 32

Bose Corp. v. Consumers Union

of United States, 466 U.S. 485 (1984)......0..00000000.. 40

Broadrick v. Oklahoma,

NR SN I hd ses crcmaciciniuslcaniclgienerrstacte 22, 29, 41

Brockett v. Spokane Arcades, Inc.,

Cs I es saummeameinde 21

Brown v. Hartlage, 456 U.S. 45 (1982) ............... 33-34

Brown v. Louisiana,

I cts 38

Buckley v. American Constitutional

Law Foundation, Inc.,

rt I I oo oss creesniccecbusibensaddannnesaaunacon 3, 20

Buckley v. Valeo, 424 U.S. 1 (1976).............. 20, 26, 47

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

Christianson v. Colt Industries

Operating Corp.,

NE III isis tancacsetieabtceddnickuctaiceceigonsins 40

Vli

Citizens United v. Federal Election Comm ’n,

as sndeicmae’ 20, 30, 40

City of Chicago v. Morales,

SII ER ae a kr PD 36

City of Houston, Tex. v. Hill,

yD CE ONLI 42-43, 45

City of Lakewood v. Plain Dealer Publ’g Co.,

A i snc sicissasaetptsiee eaniatiirvesowanernieisiiaibaetne 42

Clark v. Cmty. for Creative Non- Violence,

a fc i.as cca lsctnachabenteiusminiensabanepinina 19

Cohen v. California,

EEG RG Ly | eee 16, 18, 20-21, 46-47

Consolidated Edison Co. of N_Y. v.

Public Service Comm'n of N-Y.,

og RT ERE S a EA es aro OnaPES 20, 24

Cornelius v. NAACP Legal Defense &

Educ. Fund, Inc., 473 U.S. 788 (1985).................. 19

Cox v. Louisiana,

I To sceniiacntiion 31

Dariano v. Morgan Hill Unified Sch. Dist.,

Pe ce ee es EO vccensccececnsccesecosnscosooss 27

Davis v. Michigan Dep’t of Treasury,

Inn emcee 43

Erznoznik v. City of Jacksonville,

I ll 32-33

Fabri-Tek, Inc. v. NLRB,

§ & | oe Go AD: RRO A6

FCC v. League of Women Voters of Cal.,

aps cand shaac taeda Kehiamaceianuinis 20

Vill

FCC v. Pacifica Foundation,

a cectundbuieonnitiion’ 34

Federal Election Comm’n v.

Massachusetts Citizens for Life,

FG EEE eT ee 32

Federal Election Comm’n v.

Wisconsin Right To Life, Inc.,

gt .__,_, RNS rgennan eae 20, 22, 41, 44

Forsyth County, Ga. v. Nationalist Movement,

Sr OP, I eScicinusnicemapccsduntanbasuiinsias 22-23, 36

Grayned v. City of Rockford,

SS ______ RECT ae Re ee ee 38

Hurley v. lrish-Am. Gay, Lesbian &

Bisexual Grp. of Boston,

ee cenveapeencancntiod 39-40

Hustler Magazine, Inc. v. Falwell,

I i 34

John Doe No. 1 v. Reed, 561 U.S. 186 (2010)........... 38

Matal v. Tam, 137 S. Ct. 1744 (2017)...................... 26

McCutcheon v. Federal Election Comm'n,

a osencmnanensndenis 30

Mclntyre v. Ohio Elections Comm’n,

i cceenenbnsasiog 21, 45

Members of City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 (1984)......... 27

Mills v. Alabama, 384 U.S. 214 (1966) .................... 11]

Minnesota Majority v. Mansky,

62 I. Supp. 3d 870 (D. Minn. 2014)...............00....... 1

1X

Minnesota Majority v. Mansky,

708 F.3d 1051 (6th Cir. 2013)...............................0. 1

Minnesota Majority v. Mansky,

789 F. Supp. 2d 1112 (D. Minn. 2011).......0..000000.... 1

Minnesota Majority v. Mansky,

ee a Ng) Ee aE l

Morse v. Frederick, 551 U.S. 393 (2007) ............ 20, 45

National Ass’n for Advancement of

Colored People v. Button,

Be Os a OI cena dicccnotasndnclivssevicccssocees 14, 22, 41

New York Times Co. v. Sullivan,

ne I os ssedeammabes Al

New York v. Ferber, 458 U.S. 747 (1982) ................. 22

Perry Educ. Ass’n v. Perry Local

Educators’ Ass'n,

A ae ieeduas 18-19

Picray v. Secretary of State,

916 P.2d 324 (Or. Ct. App. 1996)........... 6, 29, 32-33

Police Dep’t of Chicago v. Mosley,

RE EI SD Ses 20

Reed v. Town of Gilbert, Ariz.,

i le Be IOI acdc vinci sce cenenedoccectdeces 19-20, 23

Regan v. Time, Inc., 468 U.S. 641 (1984).......000.0000.. 20

Reno v. American Civil Liberties Union,

ne rn I nn csccdecnbeis 42

Republican Party of Minn. v. White,

en a a cccsesacbesedens 43, 47

Rosenberger v. Rector and Visitors of

University of Virginia,

ee a i ee a 19

Secretary of State of Md. v.

Joseph H. Munson Co., Inc..,

GF TFT RF CO woes vcndecieccsccsenccvices 17, 22, 30, 40

Simon & Schuster, Inc. v. Members of

N.Y. State Crime Victims Bd.,

I GF TP IER vices cxchiecectessnececocctctecnigen 20

Sorrell v. IMS Health Inc..,

nk |. OT I Ba Ro ee 19-20

Texas v. Johnson, 491 U.S. 397 (1989)............... 32, 34

Tinker v. Des Moines Independent

Community School District,

EF es MI CIID sis calivtnsccescsincivicnainsacdexcssulnie passim

Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013)........... 26

/nited States v. Grace,

gt El FURS 4, 14, 30, 32, 46

United States v. Jones,

18 F.3d 1145 (4th Cir. 1994) ..............000000000-0..-..... 46

United States v. Stevens,

I rs Ie GD a veieaseasieveiscsvcassseesscsecetec ex 41, 44

United States v. Williams,

Sey REE Foti sce 23

Van Leer Containers, Inc. v. NLRB,

841 F.2d 779 (7th Cir. 1988)................................. 45

Vanasco v. Schwartz,

401 F. Supp. 87 (S.D.N.Y. 1975),

aff'd mem., 423 U.S. 1041 (1976) ......ccccccccccccecceee. 34

Virginia v. Black, 538 U.S. 343 EPR 20

xi

Virginia v. Hicks, 539 U.S. 113 (2003).......... 21-22, 29

Wal-Mart Stores, Inc. v. NLRB,

400 F.3d 1093 (8th Cir. 2005) ..................ccceeeeeeee 45

Washington State Grange v. Washington State

Republican Party, 552 U.S. 442 (2008) .......... 22, 38

Washington v. Glucksberg,

bol &. Tel.) een 21

Constitution

LJ.D, Comat. GORGE. F .....cccvcvccccccesccccccccccsseccsecceees passim

U.S. Comat. amend. XIV..........ccccccccsccsorcccrererecseeereserees l

Statutes

BB UG.C. © UBB4...0ccccccsserrcccrrscccccccreserccersoresersescccoosoroes l

Del. Code Ann. tit. 15, § 4942...................cccccereeceressees 5

Kan. Stat. Ann. § 25-2430(a) ............:ccccceceeeeeeeeeeeeeeeees 5

Minn. Stat. § 203B.081(1)............-:c.ceceeeeeeeeeeeeeeeeeeeeeees 5

Minn. Stat. § 204C.035(1)..........ccccccecseeeeeeeeeeeeeeeneneeeees 6

Minn. Stat. § 204C.06.............ccccecsrceserecsererrseeooess 6, 32

Minn. Stat. § 211B.07 .............:::cccccseeeeeeeeeereeeeeesrensenens 6

Minn. Stat. § 21 1B.1101)...............:cccecceeeeeeeeeeeees passim

Minn. Stat. § 211B.11(4)..........::cccceceeeeeeeeeeeeeeeeeeeerenenes 5

Minn. Stat. $ 21 1B.3Z...................cccccccceresecererscsoseeserss 5

Minn. Stat. § 211B.35(2)............c:cccceseeseeererereeeeseeereeees 5

Mont. Code Ann. § 13-35-21 1(1)............2...cceceeeeeneeeeees 5

N.J. Stat. Amn. § 19:34-19 .............::cccccesereereeeeeeeesseses 5

N.Y. Elec. Law § 8-1O4(1) .............:cccccceecereeeeeeeenenenenees 5

S.C. Code Ann. § 7-25-180(B) ..............:.:.cecceeeeeeeeeeeeees 5

xi

Tenn. Code Ann. § 2-7-111(D)(1).............ccccccececeecssoeeee 5

Tex. Elec. Code Ann. § 61.010(a).....0..0.0.0...ccccccccecceceee 5

Vt. Stat. Ann. tit. 17, § 250@(q) .......................0...0..-.. 5

Other Authorities

Chasmar, Jessica, NRA demands Georgia county's

elections board reverse ban on pro-gun clothing,

Wash. Times (Oct. 29, 2014),

https://www.washingtontimes.com/

news/20 14/oct/29/nra-demands-

georgia-countys-elections-boar/ ............................ 28

Fallon, Jr., Richard H.,

Making Sense of Overbreadth,

ies Ce CO ivrenidnctecocsiccscicoccccsccececeinssites 23

Fischer, Roger A..,

Tippecanoe and Trinkets Too (1988) ...............c0000-. 6

Gilker, Kathryn, What Can You Bring To A Polling

Place: Cellphones, Political T-shirts, Children?,

5NEWS (Nov. 7, 2016),

http://5newsonline.com/20 16/1 1/07/what-

can-you-bring-to-a-polling-place-

cellphones-political-t-shirts-children/................... 28

Latson, Jennifer, Houstonian wearing Alaska

T-shirt nearly denied a vote,

Houston Chronicle (Nov. 4, 2008),

http://www.chron.com/neighborhood/cyfair-

news/article/Houstonian-wearing-Alaska

-T-shirt-nearly-denied-a-1789897.php ................. 28

Office of Minn. Sec’y of State,

Polling Place Finder,

http://pollfinder.sos.state.mn.us/

a, Ee 6-7

xill

Opposition to Petition for Writ of Certiorari,

Minnesota Majority v. Mansky, No. 13-185,

2013 WL 6021145 (U.S. Nov. 8, 2013).................. 13

Oral Argument, Minnesota Majority v. Mansky,

708 F.3d 1051 (8th Cir. 2013) (No. 11-2125),

http://media-oa.ca8.uscourts.gov/OAaudio/

i a ccnemeaenenstion 8, 12

Petition for Writ of Certiorari,

Minnesota Majority v. Mansky, No. 13-185,

2013 WL 4027040 (U.S. Aug. 5, 2013).................. 13

Tee Fetch, History of the T-shirt,

http://www.teefetch.com/history-of-the-t-shirt/

a nbduannnniinpeiinniio 6

Tucker, Kimberly J., “You Can't Wear

That to Vote”: The Constitutionality

of State Laws Prohibiting the

Wearing of Political Message

Buttons at Polling Places,

32 T. Marshall L. Rev. 61 (2006).......................... 33

Woodruff Il, James J., Freedom of Speech

& Election Day at the Polls: Thou

Doth Protest Too Much,

65 Mercer L. Rev. 331 (2014)............... 28, 32, 38-39

OPINIONS BELOW

The opinion of the Eighth Circuit affirming final

judgment against Petitioners is reported at 849 F.3d

749 (8th Cir. 2017), and reproduced in Petitioners’

Appendix (Pet. App.) A. The related opinion of the

district court rejecting Petitioners’ as-applied

challenge and entering final judgment is unreported,

and reproduced in Pet. App. B. An interim order of the

district court, granting Defendant Mark Ritchie's

motion for summary judgment in part, and denying

the motion in part, is reported at 62 F. Supp. 3d 870

(D. Minn. 2014), and reproduced in Pet. App. C.

The Eighth Circuit’s opinion rejecting Minnesota

Voters Alliance’s (MV<A’s) facial challenge is reported

at 708 F.3d 1051 (8th Cir. 2013), and reproduced at

Pet. App. D. The Eighth Circuit denied rehearing en

banc, over the dissent of Judge Smith and Judge

Shepherd, on May 7, 2013, in an order reproduced in

Pet. App. F. The district court opinion rejecting the

facial challenge is reported at 789 F. Supp. 2d 1112

(D. Minn. 2011), and reproduced in Pet. App. E.

JURISDICTION

The United States Court of Appeals for the Eighth

Circuit entered final judgment in this case on

February 28, 2017. The petition for a writ of certiorari

was filed on May 30, 2017, and granted on

November 13, 2017. This Court has jurisdiction under

28 U.S.C. § 1254.

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

The First Amendment, as incorporated against

the states by the Fourteenth Amendment, provides

that the states “shall make no law . . . abridging the

freedom of speech.”

Minnesota Statute Section 211B.11(1) provides,

in relevant part: “A political badge, political button, or

other political insignia may not be worn at or about

the polling place on primary or election day.” The full

statute is reprinted in an appendix to this brief.

INTRODUCTION

This case involves a statutory restriction on

political speech of breathtaking reach; one that

suppresses perhaps the most peaceful method of

political expression—the silent wearing of clothing

and other apparel that conveys a political message,

logo, or group affiliation.

The provision at issue, the third sentence of

Section 211B.11(1), came to promineace when

members of Minnesota Voters Alliance (MVA), and

other Petitioners (collectively referred to as “MVA”),

attempted to wear expressive t-shirts and buttons into

polling places during the November 2010 Minnesota

election. Pet. App. D-3-4. One representative t-shirt

contained the image of the Gadsden flag and the

message “Don’t Tread on Me.” Joint Appendix (JA)

114, % 4 5-6; id. at 116, 4) 16-19. None of the apparel

solicited votes for or against candidates or issues on

the ballot. /d. at 110-11, 44 16-19. Nevertheless,

polling officials told MVA that Section 211B.11(1)

prohibited such politically expressive apparel in the

poliing place. Pet. App. D-3-4.

Since then, the government Respondents

(collectively, “the Government”) have made clear that

Section 211B.11(0) reaches—and indeed,

criminalizes—all political speech that can _ be

communicated through shirts, hats, buttons, and

other apparel. Pet. App. E-13, 25, 28, 29. The statute

bars every item referring to any candidate, party (on

the ballot or not), politically involved organization,

political ideology, political message or symbol, and “all

manner of political views.” /d. at E-15; see alse Pet.

App. A-6 (“all political material is banned.”).

Moreover, the law gives polling place officials

discretion to decide which messages are “political” and

thus, illegal in polling places, and which messages are

non-political and permissible. /d. at E-22-23. The

opportunity for abusive application of the law to

disfavored viewpoints, and to protected non-political

speech, is obvious and untenable.

The Government believes that the public’s

interests in peace, order, and influence-free elections

justify its broad ban on political apparel. They do not.

No conceivable governmental interest can sustain a

statute that prohibits, and chills, the entire realm of

political speech that can be conveyed on apparel.

Board of Airport Comm'rs v. Jews for Jesus, 482 U.S.

569, 573-76 (1987).

Political speech must be jealously guarded—

wherever it is encountered. Buckley v. American

Constitutional Law Foundation, Inc., 525 U.S. 182,

192 (1999) (courts must be “vigilant ... to guard

against undue hindrances to political conversations

and the exchange of ideas”). This is especially true

when it is communicated through a common,

affordable, and passive means of speech, one that

imposes no demands or burdens on others. Partial

restrictions on this form of speech will usually be

unconstitutional. Statutes which totally prohibit it

are plainly overbroad and unconstitutional. -/ews for

Jesus, 482 U.S. at 576; see also United States v. Grace,

461 U.S. 171, 186-88 (1983) (Marshall, J., conc. in

part, dis. in part). Minn. Stat. § 211B.11(1) is such a

statute.

STATEMENT OF THE CASE

A. Factual Background

1. The Ban on “Politicai” Apparel

and Statutory Context

Minnesota Election Code Chapter 211B

prescribes a set of “Fair Campaign Practices.” Section

211B.11, entitled “Election day prohibitions,”

regulates certain activities “near polling places.” The

first subdivision of the section, entitled “Soliciting

near polling places,” is relevant here.

The first sentence in Section 211B.11(1) forbids

active campaigning at polling places. It declares that

people “may not display campaign material, post

signs, ask, solicit, or in any manner try to induce or

persuade a voter within a polling place or within 100

feet” of a polling place. The second sentence in the

subsection bars people from “provid|ing] political

badges, political buttons, or other political insignia to

be worn at or about the polling place on the day of a

primary or election.” Neither of these provisions is

challenged here.

The third sentence of Section 211B.11(1) is at

issue. It states: “|a] political badge, political button, or

other political insignia may not be worn at or about

the polling place on primary or election day.” Minn.

Stat. § 211B.11(1). The Government recognizes that

this provision includes political clothing and other

“paraphernalia.” Opposition to the Petition for

Certiorari (Opp.) at 24, 35.

>) |

Section 211B.11(1) applies not only in polling

places on primary and election days, but also for 46

days prior to an election in at least 87 county absentee

voting areas. Minn. Stat. §§ 211B.11(1); 203B.081(1).

If citizens wear political apparel when voting, a

complaint may be filed against them in the Office of

Administrative Hearings. Minn. Stat. § 211B.32. That

Office may impose civil penalties of up to $5,000

against the offender, Minn. Stat. § 211B.35(2), and/or

refer the case to county prosecutors for possible

criminal charges, Minn. Stat. § 211B.11(4); see also JA

52-53.

The purposes underlying the political apparel ban

are not apparent from the text of Section 211B.11(1).

The Government contends that it is “designed to

protect Minnesotans’ right to vote in an orderly and

controlled environment without confusion,

interference, or distraction.” Opp. at 4. The Eighth

Circuit believed the law is meant to “maintain peace,

order and decorum” in the polling place, to “protect{]

voters from confusion and undue influence,” and to

“preservie| the integrity of its election process.” Pet.

App. D-8 (quoting Burson v. Freeman, 504 U.S. 191,

199 (1992)).

At least nine other states have enacted similar

restrictions on political apparel at polling places.

Many of these statutes, including Minnesota’s, were

passed in the late 1800's. At the time, the available

political apparel was largely limited to campaign

! See Del. Code Ann. tit. 15, § 4942; Kan. Stat. Ann. § 25-2430(a);

Mont. Code Ann. § 13-35-211(1); N.J. Stat. Ann. § 19:34-19; NLY.

Elec. Law § 8-104(1); S.C. Code Ann. § 7-25-180(B); Tenn. Code

Ann. § 2-7-111(b)(1); Tex. Elec. Code Ann. § 61.010(a); Vt. Stat.

Ann. tit. 17, § 2508(a).

buttons and other candidate-specific items. Picray v.

Secretary of State, 916 P.2d 324, 329 n.12 (Or. Ct. App.

1996) (quoting Roger A. Fischer, Tippecanoe and

Trinkets Too vii-viii (1988)).?

Section 211B.11(1) is only one of many Minnesota

statutes that regulate polling places. For instance,

Section 211B.07 of the Election Code, entitled “Undue

Influence on Voters Prohibited,” prevents a person

from “directly or indirectly” trying “to compel [an]

individual to vote for or against a candidate or ballot

question” through the use of force and influence.

Another portion of this section bars the use of fraud

“to obstruct or prevent the free exercise of the right to

vote of a voter at a primary or election, or compel a

voter to vote at a primary or eiection.” Similarly,

Minn. Stat. § 204C.035(1), entitled, “Deceptive

Practices in Elections,” states: “No person shall

knowingly deceive another person regarding the time,

place, or manner of conducting an election or the

qualifications for or restrictions on voter eligibility for

an election, with the intent to prevent the individual

from voting in the election.” Finally, Minn. Stat.

§ 204C.06 limits access to polling places and prohibits

disorderly conduct.

As in most states, polling places in Minnesota are

established on election day in a wide variety of

buildings and locations, including churches, city halls,

and county offices. See generally Office of Minn. Sec’y

of State, Polling Place Finder,

http://pollfinder.sos.state.mn.us/ (last visited Dec. 21,

“ By most reports, the t-shirt itself was not invented until the

early 20th century. See Tee Fetch, History of the T-shirt,

http://www.teefetch.com/history-of-the-t-shirt/. (last visited

Dec. 21, 2017).

2017). According to Respondent Mansky, voters are in

a polling place for ten minutes or less. JA 56, 4 11.

2. The “Election Day Policy”

As the 2010 election approached, state and local

election officials in Minnesota created and distributed

an Election Day Policy (Policy) which provided

guidelines for enforcement of Section 211B.11(1). See

Pet. App. 1-1-2. As Minnesota’s Secretary of State

explained below,

officials from the [] county offices, in

consultation with representatives of the

Secretary of State’s Office, drafted a sample

letter to aid county election officials and

election judges statewide in their application

of Minn. Stat. § 211B.11....Gary Poser, the

Office of Secretary of State’s Elections

Director, then sent the sample letter... via

e-mail to county elections officials in each

Minnesota county.

2011 Brief of Appellee Ritchie at 3-4 (8th Cir. Sept. 21,

2011); see also Declaration of Gary Poser dated Jan. 6,

2011 [Dist. Ct. Docket Entry No. 57] 4% 5-7.

The Policy states that “Minnesota law prohibits

persons from wearing ‘political badges, political

buttons, or other political insignia’ or displaying

campaign material at the polling place.” Pet. App. I-1.

(emphasis added). It notes that “[e]lection judges have

the authority to decide what is ‘political” for purposes

of Section 211B.11(1). /d.

The Policy then provides examples. of

impermissible “political” apparel. These “include, but

are not limited to:”

*- Any item including the name of a political

party in Minnesota, such as the Republican,

DFL, Independence, Green or Libertarian

parties.

* Any item including the name of a

candidate at any election.

* Any item in support of or opposition to a

ballot question at any election.

* [Any] [i]ssue oriented material designed to

influence or impact voting (including

specifically the “Please 1.D. Me” buttons).

* [Any] [mJaterial promoting a group with

recognizable political views (such as the Tea

Party, MoveOn.Org, and so on).

Pet. App. I-1-2.

In separate, pre-election communications with

Petitioner Susan Jeffers, an election judge in Ramsey

County, JA 34, Respondent Mansky confirmed that

the statute prohibits Tea Party shirts and buttons in

Ramsey County polling places. JA 34, © 3; id. at 56,

"9. He also indicated that the statute could bar a

“Minnesota Vikings” shirt if there was an issue

related to the football team on the ballot, such as

construction of a new stadium. JA 34-35. In lower

court arguments, the Government conceded that the

“political” apparel ban extends to all politically-

involved organizations, and would thus ban shirts

referring to the Chamber of Commerce and the AFL-

CIO. Oral Argument at 19:48, Minnesota Majority v.

Mansky, 708 F.3d 1051 (8th Cir. 2013) (No. 11-2125).*

* http://media-oa.ca8. uscourts. gov/O Aaudio/2012/2/112125.MP3.

9

Once an election official decides that a citizen is

wearing illegal “political” material, the Policy directs

the official to “[a]sk the individual to either cover up

or remove the political material while in the polling

place.” Pet. App. I-2. If the person does not comply, the

Policy directs election judges to allow the offender to

vote, but also to record his or her name, address, and

the nature of the offending “political” item for referral

to “appropriate authorities” for potential fines and

criminal prosecution. Id.

3. Enforcement of the

“Political” Apparel Ban

Prior to the 2010 election, the North Star Tea

Party Patriots created t-shirts and hats with a Tea

Party emblem and slogans like “Fiscal Responsibility,

Limited Government, Free Markets,” “Liberty,”

“Remember Me in November,” and “Don’t Tread on

Me.” JA 71-72; Pet. App. H-1-2. The Tea Party did not

endorse or oppose any candidates or issues on the

2010 ballot. JA 71-72. With assistance from MVA and

other organizations, the Tea Party helped form

Election Integrity Watch (EIW), “a grass roots effort

to protect election integrity.”* JA 70; Pet. App. E-3.

EIW subsequently produced a small button that

stated “Please I.D. Me” on a background image of a

human eye, along with EIW’s telephone number and

website address. Pet. App. E-3, G-1.

During the 2010 election, MVA members and

other citizens wore or planned to wear Tea Party

shirts and/or EIW buttons when voting. JA 77-78,

' None of the organizations forming EIW “endorse[d] a candidate

or ballot issue in the November 2010 Election.” Pet. App. D-2,

E-2-3.

10

"|| 72-75. For instance, the Executive Director of

MVA, Petitioner Andrew Cilek, entered his polling

place in Hennepin County wearing a t-shirt made by

the Tea Party Patriots. Jd. at 115, 4 10-11. The shirt

featured a small Tea Party logo, a larger “Don’t Tread

on Me” message, and an image of the Gadsden Flag.

JA 114, 4 5; see also Pet. App. H-1 (representation of

Tea Party shirts). Cilek also wore a small “Please I.D.

Me” button. JA 115, 4 9.

When Cilek entered the polling place, an election

worker told him he could not vote unless he covered or

removed the shirt and button. Cilek refused and left.

Id. at 115, | 10. A while later, he tried again to vote,

but was once more denied entry to the polling place

and told not to come back a third time. Jd. at 115, % 11.

Several hours later, Cilek made a final attempt to

enter the polling place. This time, election officials

allowed him to vote. However, as he did so, an election

judge recorded Cilek’s name and address for possible

prosecution for wearing the “Don’t Tread on Me” shirt

and the button. /d.

Another citizen who wore a Tea Party Patriot

shirt on election day was told to cover the shirt by a

poll worker as he was casting a ballot, and was

threatened with prosecution if he did not comply.

JA 78, | 73. Other citizens who wanted to wear Tea

Party shirts and/or buttons when voting refrained

from doing so out of fear of prosecution under Section

211B.11(1). Id. at 79, 4] 79-82.

B. Procedural History

1. Initial Proceedings

Just prior to the November 2010 election, MVA,

and entities that are no longer parties to this

11

litigation, filed a complaint against Ramsey County

election officials and the Minnesota Secretary of

State. JA 8-33. The complaint alleged that Minn. Stat.

§ 211B.11(1) violated the First Amendment on its face

because it failed to advance legitimate interests

and/or was overbroad. /d. at 30, *| 117. The complaint

sought a declaration that “Minn. Stat. § 211B.11 is

facially unconstitutional” and an order enjoining its

enforcement. /d. at 32, ‘4 C, D. Several weeks after

the 2010 election, MVA filed an amended complaint

that included additional facts related to the Policy and

the enforcement of Section 211B.11(1) during the 2010

election. JA 63-92. The district court read the

amended complaint to allege that Section 211B.11 is

facially unconstitutional under both the United States

and Minnesota Constitutions. Pet. App. E-8.

The Government soon filed a motion to dismiss

the case under Federal Rule of Civil Procedure

12(b)(6). Upon review, the district court held that

Section 211B.11(1) was constitutionally valid under

the First Amendment and dismissed the facial claim.

Pet. App. E-10-14, E-28-30. The court concluded that

a ban on apparel “expressing political ideology or

beliefs, even those unrelated to a candidate or ballot

question,” falls “within the [statute’s] legitimate

sweep.” Jd. at E-29. The court similarly dismissed

MVA’s as-applied First Amendment claim, holding

that “prohibiting apparel that expresses support for a

political ideology is reasonably related to the

legitimate state interest of ‘maintain|ing] peace,

order, and decorum’ at the polls.” Pet. App. E-18

(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).

MVA appealed.

12

2. Appellate Proceedings

During argument in the Eighth Circuit, the

Government embraced the broad nature of the ban on

“political” apparel. It conceded that Section

211B.11(1) is not limited to Tea Party apparel and

that it prohibits items naming other organizations,

like the “Chamber of Commerce” and the “AFL-CIO.”

Oral Argument at 19:48, Minnesota Majority v.

Mansky, 708 F.3d 1051 (8th Cir. 2013) (No. 11-2125).

The Kighth Circuit also recognized that the political

apparel ban reaches beyond campaign-related items.

Pet. App. D-3, D-9-10. Nevertheless, it upheld the

provision on the ground that it constitutionally

advances the Government’s interest in “peace, order,

and decorum” at polling places. Pet. App. D-8-10. The

Kighth Circuit also remanded MVA’s as-applied

claims for further factual development. /d. at D-10;

D-12.

Judge Shepherd dissented from the majority's

analysis of the facial claim. Pet. App. D-15-19

(Shepherd, J., conc. in part, dis. in part). He declared

it impossible to

see how this broad restriction, which

prohibits a voter from wearing any political

emblem, insignia, or slogan that is unrelated

to an issue or candidate on the ballot, would

rationally and reasonably help maintain the

“peace, order, and decorum” of the polling

place, “protect [| |] voters from confusion or

undue influence,” or “preservje] the integrity

of [Minnesota’s] election process.”

Id. at D-18 (Shepherd, J., conc. in part, dis. in part).

Maintaining the same theme, the dissent forcefully

13

rejected the idea that “the presence of a passive and

peaceful voter who happens to wear a shirt” promoting

the “American Legion, ‘Veterans of Foreign Wars,’

‘AFL-CIO,’ ‘NRA,’ ‘NAACP,’ or the logo of one of these

organizations (all of which have actively participated

in the political process)” would disrupt or otherwise

harm voters. /d. at D-18 n.7 (Shepherd, J., conc. in

part, dis. in part).

MVA subsequently filed a petition for a writ of

certiorari. Petition for Writ of Certiorari, Minnesota

Majority v. Mansky, No. 13-185, 2013 WL 4027040

(U.S. Aug. 5, 2013). The Government opposed this

petition on the ground that the “as-applied challenge

[was] still pending.” Opposition to Petition for Writ of

Certiorari, Minnesota Majority v. Mansky, No. 13-185,

2013 WL 6021145, at *9-11 (U.S. Nov. 8, 2013). The

Court denied certiorari, and MVA proceeded with the

as-applied claims against Section 211B.11(1) in

district court. Pet. App. B-1-34. Relying primarily on

the Eighth Circuit’s prior decision finding the statute

constitutional, the district court eventually granted

the Government’s motions for summary judgment on

the as-applied claims. /d. at B-33. MVA appealed once

more, but limited its as-applied arguments to the

prohibition on Tea Party shirts. Pet. App. A-1-7. The

Eighth Circuit affirmed summary judgment in favor

of the Government on this issue, creating a final

judgment. See id. at A-7.

Once more, MVA filed a Petition for Certiorari,

asking this Court to decide whether Section

211B.11()1) is facially unconstitutional under the First

Amendment. On November 13, 2017, the Court

granted the Petition.

14

SUMMARY OF ARGUMENT

The prohibition on “political” apparel in Section

211B.11(1) is unconstitutional under the First

Amendment overbreadth doctrine because it bans and

penalizes substantial amounts of passive political

speech. To state the statute’s reach is to confirm its

unconstitutionality. The law prohibits and potentially

criminally punishes every variety of political speech

on clothing, from that which simply names a political

group, to messages supporting political causes, to

ideological or party references, to messages about

current issues. Pet. App. E-13, 15, 18, 25, 27, 28, 29

(district court findings on scope of the statute); Pet.

App. A-6 (Eighth Circuit declares: “all political

material is banned”); 2011 Brief of Appellee Ritchie at

10 n.1 (“[T]he class of ‘political’ items that section

211B.11 restricts are those items that fit within the

category of political speech within a First Amendment

context.”). Further, the broad and amorphous nature

of the term “political” allows election officials to

mistakenly or purposefully silence other forms of

protected speech, such as religious or environmental

messages.

The First Amendment needs breathing space to

flourish, National Ass'n for Advancement of Colored

People (NAACP) v. Button, 371 U.S. 415, 433 (1963),

but Section 211B.11(1) positively suffocates it. The

statute establishes political speech “safe zones”

throughout the state on election days and for 46 days

prior to the election at absentee voting offices. No

conceivable governmental interest justifies such an

expansive freeze on political speech. Jews for Jesus,

482 U.S. at 575; Grace, 461 U.S. at 187 (Marshall, J.,

conc. in part, dis. in part). Indeed, given Section

15

211B.11(1)’s remarkably deep intrusion into passive

political speech, the statute is overbroad and

unconstitutional even if it can be constitutionally

applied to prohibit the Tea Party shirts and EIW

buttons worn by MVA members and others.

Certainly, the Government's interest in “peace”

and order” at polling places cannot sustain the

statute. The wearing of clothing containing political

messages and symbols is inherently “nondisruptive.”

Jews for Jesus, 482 U.S. at 576. Moreover, the statute

bans far more than items bearing “fighting words” or

similarly provocative material. It prohibits “all”

politically expressive clothing, including that which

peacefully conveys common political affiliations or

aspirations. Pet. App. E-29 (the statute bans

expressions of “political ideology or beliefs, even those

unrelated to a candidate or ballot question”). Such a

wide-ranging restriction on passive speech is

unrelated to “peace and order.” Tinker v. Des Moines

Independent Community School District, 393 U.S.

503, 508 (1969).

Similarly, Section 211B.11(1) fails to advance the

governmental interest in protecting voters from

“confusion” and “undue influence.” The statute

restricts t-shirts that make no attempt to persuade

voters to take any action, such as those that merely

name a political group or ideology. Pet. App. D-18 n.7

(Shepherd, J., conc. in part, dis. in part). There is no

danger of undue influence here.

The Government is likely to point to Burson v.

Freeman, 504 U.S. 191, for support. But Burson is

inapposite because it did not involve a restriction on

voters’ ability to silently wear expressive clothing

while voting; it involved a restriction on active

16

campaigning. The Burson plurality held only that

“requiring solicitors to stand 100 feet from the

entrances to polling places does not constitute an

unconstitutional compromise.” 504 U.S. at 211

(emphasis added).

Since Burson does not control here, Section

211B.11(1) must stand or fall based on its ability to

advance the Government's interests in regulating

elections. It falls. No interest justifies a law broadly

banning a// politically expressive apparel. The statute

is therefore unconstitutionally overbroad whether or

not polling places are a non-public forum. Jews for

Jesus, 482 U.S. at 576. Citizens’ cannot

constitutionally be compelled to give up their right to

passively speak on political topics through a t-shirt at

the polling places any more than in airports, id.,

courthouses, Cohen v. California, 403 U.S. 15, 26

(1971), or schools, Tinker, 393 U.S. at 505-06, 514.

To save the statute, the Government may propose

a construction that it believes would narrow its reach.

But none exists. The law cannot plausibly be

construed to ban only political items that may

“influence” voters, given the provision’s broad

language, the statutory context, and_ the

Government's interpretations and concessions. Jews

for Jesus, 482 U.S. at 575-76. Moreover, a construction

that allows the statute to prohibit all political

advocacy on apparel is insufficiently tailored to the

goal of preventing undue influence, overbroad, and

unconstitutional in its own right.

17

There is no form of speech as protected as political

speech and no medium of public expression that is as

peaceful and unobtrusive as messages on clothing.

The First Amendment cannot tolerate a law that

penalizes and deters all political expression

communicated through clothing—even in polling

places. Jews for Jesus, 482 U.S. at 576 (“the wearing

of a t-shirt or button that contains a political message

. is still protected speech even in a non-public

forum”). Section 211B.11(1) is facially

unconstitutional.

ARGUMENT

I.

MINN. STAT. § 211B.11(1) BROADLY BANS

ALL POLITICALLY EXPRESSIVE APPAREL

The First Amendment not only protects against

violations of a particular individual’s free speech

rights; under the “overbreadth doctrine,” it also

guards against far-reaching laws that threaten the

free speech rights of large segments of society.

Secretary of State of Md. v. Joseph H. Munson Co.,

Inc., 467 U.S. 947, 958 (1984). Section 211B.11(1)

violates this doctrine because it punishes all political

speech that can be conveyed through the passive

medium of personal apparel. Pet. App. A-6 (“all

political material is banned”).

18

A. First Amendment Principles

The First Amendment to the Constitution

declares that “Congress shall make no law .. .

abridging the freedom of speech.” This guarantee

applies, of course, not only to oral communications,

but also to written or symbolic expression.

Speech silently conveyed through writing and

symbols on t-shirts, buttons, and hats is just as

protected as a literal oration. Jews for Jesus, 482 U.S.

at 576; Cohen, 403 U.S. at 23-24 (imprint on jacket

was a constitutionally protected “utterance”); Tinker,

393 U.S. at 505-06 (wearing a black armband is “akin

to ‘pure speech” and “entitled to comprehensive

protection”).

In considering whether a restriction on protected

speech violates the First Amendment, this Court has

employed several different approaches. Here, the

Government will likely urge the Court to utilize the

public forum doctrine, and standards associated with

the doctrine, in deciding whether Section 211B.11(1)

goes too far. See Perry Educ. Ass'n v. Perry Local

Educators’ Ass'n, 460 U.S. 37, 45-46 (1983). This is not

necessary.

1. Forum Analysis

To be sure, in some cases, First Amendment

scrutiny depends (at least in part) on whether a

challenged speech restriction applies in a public or

non-public forum. /d. In a “traditional public forum,”

such as a public sidewalk, or in a Government-

“designated public forum,” speech restrictions are

subject to strict scrutiny. The government “must show

that its regulation is necessary to serve a compelling

state interest and that it is narrowly drawn to achieve

19

that end.” /d. at 45. In some cases, content-neutral

regulations that impose reasonable time, place and

manner limitations on speech may be permissible in

public forums, if they are narrowly drawn to achieve

a substantial governmental interest, and leave open

ample alternative channels of communication. /d.;

Clark v. Cmty. for Creative Non-Violence, 468 U.S.

288, 293 (1984).

At the same time, this Court has recognized that

the government may sometimes restrict speech in

non-public forums—even when the restriction is

content based—as long as the _ regulation is

“reasonable in light of the purpose served by the

forum” and “viewpoint neutral.” Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806

(1985); see also Rosenberger v. Rector and Visitors of

University of Virginia, 515 U.S. 819, 828-29 (1995).

2. Content-Based and Political

Speech Restrictions Are

Subject to Strict Scrutiny

The public forum doctrine has never been the

exclusive analytical device for reviewing free speech

claims. In fact, in many cases, the type of review

depends on the nature of the speech restriction, not

the locus of its operation. For instance, the Court has

repeatedly declared that “[c]ontent-based laws—those

that target speech based on its communicative

content—are presumptively unconstitutional and

may be justified only if the government proves that

they are narrowly tailored to serve compelling state

interests.” Reed v. Town of Gilbert, Ariz., 135 S. Ct.

2218, 2226 (2015); see also Sorrell v. IMS Health Inc..,

564 U.S. 552, 571 (2011) (It is usually “dispositive to

conclude that a law is content-based and, in practice,

20

viewpoint-discriminatory.”); Police Dep't of Chicago v.

Mosley, 408 U.S. 92, 95 (1972) (same); Cohen, 403 U.S.

at 18 (The “State certainly lacks power to punish

Cohen for the underlying content of the message the

inscription conveyed”); Simon & Schuster, Inc. v.

Members of N.Y. State Crime Victims Bd., 502 U.S.

105, 124-25 (1991) (Kennedy, J., concurring); Regan v.

Time, Inc., 468 U.S. 641, 648-49 (1984) (“Regulations

which permit the Government to discriminate on the

basis of the content of the message cannot be tolerated

.... ). A law is content-based and subject to strict

scrutiny when it is content-based “on its face” or when

its purpose is content-based. Reed, 135 S. Ct. at 2228.

This includes laws that forbid “discussion of an entire

topic.” Id. at 2230 (quoting Consolidated Edison Co.

of N.Y. v. Public Service Comm’n of N.Y., 447 U.S. 530,

537 (1980)).

The Court’s precedent also singles out political

speech—“expression of editorial opinion on matters of

public importance’—for individualized, robust

protection. FCC v. League of Women Voters of Cal.,

468 U.S. 364, 375-76 (1984). Political speech is

“central to the meaning and purpose of the First

Amendment.” Citizens United v. Federal Election

Comm'n, 558 U.S. 310, 329 (2010); Morse v. Frederick,

551 U.S. 393, 403 (2007) (“at the core of what the First

Amendment is designed to protect”) (quoting Virginia

v. Black, 538 U.S. 343, 365 (2003)). For this reason,

the Court has said that political speech is entitled to

the “fullest and most urgent application” of the First

Amendment. Buckley v. Valeo, 424 U.S. 1, 14-15

(1976) (per curiam). This typically means review

under strict scrutiny tests. Federal Election Comm'n

v. Wisconsin Right To Life, Inc. (WRTL), 551 U.S. 449,

464 (2007); see generally Buckley, 525 U.S. at 206

21

(Thomas, J., concurring) (cataloguing political speech

cases adjudicated under strict scrutiny standards). A

political speech restriction must be “narrowly tailored

to serve an overriding state interest.” McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 347 (1995); see also

Cohen, 403 U.S. at 21-26 (applying heightened

scrutiny to a criminal penalty arising from a political

message displayed in a courtroom corridor).

3. Facial Challenges Under

the Overbreadth Doctrine

The foregoing principles may come into play in

either a facial or as-applied First Amendment

challenge. When plaintiffs allege that a statute is

unconstitutional on its face, they generally must show

that the law lacks a “plainly legitimate sweep,”

Washington v. Glucksberg, 521 U.S. 702, 740 n.7

(1997) (Stevens, J., concurring in the judgment)

(internal quotation marks omitted). However, the

First Amendment “overbreadth doctrine” permits a

second type of facial challenge. It allows “an

individual whose own speech or conduct may be

prohibited” to “challenge a statute on its face ‘because

it threatens [the free speech rights of] others.” Jews

for Jesus, 482 U.S. at 574; Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 503 (1985).

The overbreadth doctrine responds to “the threat

[that] enforcement of an overbroad law may deter or

‘chill constitutionally protected speech—especially

when the overbroad statute imposes criminal

sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

“Many persons, rather than undertake the

considerable burden (and sometimes risk) of

vindicating their rights through case-by-case

litigation, will choose simply to abstain from protected

22

speech, harming not only themselves but society as a

whole, which is deprived of an_ uninhibited

marketplace of ideas.” Jd. (citation omitted); see also

Jews for Jesus, 482 U.S. at 574. Thus, “[flacial

challenges to overly broad statutes are allowed not

primarily for the benefit of the litigant, but for the

benefit of society—to prevent the statute from chilling

the First Amendment rights of other parties not before

the court.” Munson Co., Inc., 467 U.S. at 958. By

allowing a plaintiff to challenge a law because it

endangers the free speech rights of others, the

overbreadth doctrine ensures that the _ First

Amendment has “breathing space to survive.” WRTL,

551 U.S. at 468-69 (quoting NAACP v. Button, 371

U.S. at 433).

Because the First Amendment overbreadth

doctrine is “strong medicine,” Broadrick v. Oklahoma,

413 U.S. 601, 613 (1973), it is generally employed to

facially invalidate a statute only (1) when its

overbreadth is “substantial” in “relation to the

statute’s plainly legitimate sweep,” and (2) where the

law is not readily susceptible to a_ limiting

construction. Washington State Grange v. Washington

State Republican Party, 552 U.S. 442, 449 n.6 (2008);

Broadrick, 413 U.S. at 613, 615. This understanding

derives from the doctrine’s purpose. “While a

sweeping statute, or one incapable of limitation, has

the potential to repeatedly chill the exercise of

expressive activity by many individuals, the extent of

deterrence of protected speech can be expected to

decrease with the declining reach of the regulation.”

New York v. Ferber, 458 U.S. 747, 772 (1982). In

applying this framework, the Court may consider the

extent to which a law “delegates overly broad

discretion to the decisionmaker.” Forsyth County, Ga.

23

v. Nationalist Movement, 505 U.S. 123, 129 (1992):

Richard H. Fallon, Jr., Making Sense of Overbreadth,

100 Yale L.J. 853, 884 (1991) (Overbroad laws raise “a

concern ... that the legislature .. . has created an

excessively capacious cloak of administrative or

prosecutorial discretion, under which discriminatory

enforcement may be hidden.”).

B. Minn. Stat. § 211B.11(1) Bans

a Vast Amount of Peaceful,

Passive, Protected Speech

MVA’s facial challenge to Section 211B.11(1)

arises under the First Amendment overbreadth

doctrine. The first step in analyzing such a claim is “to

construe the challenged statute; it is impossible to

determine whether a statute reaches too far without

first knowing what the statute covers.” United States

v. Williams, 553 U.S. 285, 293 (2008). The Court must

“ascertain whether the enactment reaches a

substantial amount of constitutionally protected

conduct.” Boos v. Barry, 485 U.S. 312, 329 (1988). “The

[government's] authoritative constructions of the

[law], including its own implementation and

interpretation of it” are pertinent in gauging the scope

of a challenged speech restriction. Forsyth County,

Ga., 505 U.S. at 131.

1. Section 211B.11(1) Burdens

an Astounding Amount of

Protected Political Speech

On its face, Section 211B.11(1) is a content-based

restriction on political speech, Burson, 504 U.S. at

197, a trait that places it in a precarious position from

the start. Reed, 135 S. Ct. at 2226 (content-based

restrictions are presumptively invalid). But the

24

statute’s most remarkable—and most troubling—

feature is its capacity to penalize all protected political

speech. Consolidated Edison Co., 447 U.S. at 537.

The political apparel ban in Section 211B.11(1)

prohibits not only items that expressly advocate for or

against candidates and issues (whether on the ballot

or not),® it prohibits even the most general references

to political issues, beliefs, and associations. Pet. App.

E-25 (if people wear apparel that “expressfes] a

political statement they may be asked to cover or

remove the item”); id. at K-29 (statute bars material

expressing “ideology or beliefs’); Pet. App. I-1-2

(Policy); Opp. at 15.

Apparel messages referring to social, economic,

immigration, healthcare, military, foreign affairs,

taxation, or other political concerns fall within the

statute’s prohibited zone. Pet. App. E-27

(“innumerable issues” within statute’s reach); id. at

-15 (The “Policy applies to [items] expressing all

manner of political views.”). The same is true of

apparel communicating a political “idcology,” ‘d. at

E-29, such as a shirt declaring, “Fiscal Responsibility,

Limited Government, Free Markets.” /d. at E-17-18

(district court reviews Tea Party shirts and concludes

5 In official election guidance documents, the Minnesota

Secretary of State observed that Section 211B.11 bars all

“partisan references’ in a polling place. See Appendix A to

Declaration of Gary Poser, dated October 29, 2010, DE 20. As a

result, there would appear to be no expiration date on the

statute's prohibition of candidate- and issue-based apparel. A

shirt referring to former President Obama's 2008 Democratic

Party candidacy would appear to be just as illegal, as “partisan”

material, as one supporting a current candidate.

25

the statute bars “apparel that expresses support for a

political ideology”).

Section 211B.11(1) reaches farther still. It

prohibits items referring to the name of any

organization linked to politics. Pet. App. I-1-2. It bars

clothing bearing the names and/or logos of the “AF L-

CIO,” “Chamber of Commerce,” “MoveON.org,” the

“Tea Party” and “so on.” There is no logical stopping

point. “[A] shirt displaying . . . the words ‘American

Legion, ‘Veterans of Foreign Wars, ... ‘NRA,’

‘NAACP, or the logo of one of these organizations (all

of which have actively participated in the political

process)” comes within the reach of Section

211B.11(1). Pet. App. D-18 n.7 (Shepherd, J., conc. in

part, dis. in part).

The statute also bans “any item containing the

name of a political party in Minnesota,” whether or

not that party has any affiliated candidates on the

ballot and whether or not it has endorsed any

candidates. Pet. App. I-1-2 (Policy). The Government’s

enforcement of the provision against voters wearing

shirts associated with the North Star Tea Party

provides an example. The Tea Party is not a political

party and did not field or endorse candidates during

the 2010 election. JA 40-41, 44 8-9, Pet. App. E-18.

Yet the political apparel ban barred Tea Party shirts

at polling places. Pet. App. 1-2; JA 115, 4 10. The

provision would similarly prohibit apparel featuring

the peace-dove symbol of the Peace and Freedom

Party, a party that also fielded no candidates in

Minnesota’s 2010 election. Pet. App. I-2.

As Respondent Mansky put it, Section 211B.11(1)

“prevents any politicization from entering the polling

place.” 2011 Brief of Appellee Mansky at 14 (emphasis

26

added). The Minnesota Secretary of State holds a

similar view: “the class of ‘political items’ that section

211B.11 restricts are those items that fit within the

category of political speech within a First Amendment

context.” 2011 Brief of Appellee Ritchie at 10 n.1

(emphasis added). These statements confirm the

extraordinarily broad nature of the political apparel

ban. It prohibits “all manner of political views,” Pet.

App. E-15, “any political viewpoints,” id. at E-28, and

“innumerable issues.” Jd. at E-27.

Political speech is vital to the health and success

of a constitutional republic, Buckley v. Valeo, 424 U.S.

at 14 (“Discussion of public issues” is “integral to the

operation of the system of government established by

our Constitution.”), and expressive clothing plays an

important role in American political discourse. See,

e.g., Tinker, 393 U.S. at 513-14. Tobey v. Jones, 706

F.3d 379, 387-92 (4th Cir. 2013) (citizen stated a

viable First Amendment retaliation claim based on

the TSA’s punitive reaction to a display of the text of

the Fourth Amendment). While slogans on apparel

may be brief, “powerful messages can sometimes be

conveyed in just a few words.” Matal v. Tam, 137 S.

Ct. 1744, 1760 (2017). Section 211B.11(1) utterly

silences peaceful political discourse on days when it

should be celebrated, or at least tolerated.

2. The Provision Threatens Other

Forms of Protected Speech

The statute’s ability to shut out all political

expression on apparel is sufficient to classify it as a

dangerously broad speech restriction. But the

provision threatens other forms of protected speech as

well, due to the indefiniteness of the term “political,”

and the discretion which polling officials have to

27

define and apply that term. More than 30 years ago,

this Court suggested that sayings like “Jesus Saves,”

“Abortion is Murder,” and “Right to Choose,” are non-

political speech. Members of City Council of City of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 816

(1984). Yet, it is hardly a stretch to believe that many

would see such speech as “political” today. A shirt that

says “Life Begins at Birth” or “Family Research

Council” and which a person wears as a religious

statement could be perceived as “political” by a polling

official and banned under Section 211B.11(1).

Clothing with scientific or environmental messages

would likely meet the same fate. A hat that says

“Climate Change is Real” could, and very likely would,

be considered “political.” Patriotic clothing is not

immune. Pet. App. D-18 n.7 (Shepherd, J., conc. in

part, dis. in part) (noting that a “shirt bearing an

American flag or the Star of David” would likely be

considered a prohibited “political” item). To some, an

image of a national flag is a “political” statement,

leading to the very real possibility that the statute

could prevent American flag images at American

elections. /d.; see also Dariano v. Morgan Hill Unified

Sch. Dist., 767 F.3d 764, 775, 778-79 (9th Cir. 2014)

(upholding a prohibition on an American flag shirt at

a school).

None of this is hyperbole. Reports abound of

polling officials applying political apparel bans to turn

away or penalize voters for wearing “political” t-shirts

at polling areas. In one 2008 case, a poll worker

temporarily prevented a citizen from voting because

she was wearing an “Alaska” souvenir t-shirt that the

28

poll worker construed as support for Sarah Palin.® In

2014, a citizen attempting to vote in Georgia was

ordered to remove an “NRA Instructor” hat because

polling place officials associated the message with

certain parties on the ballot.’ In another well-known

incident, polling officials stopped Massachusetts

Institute of Technology students because officials

thought their “MIT” shirts campaigned for Mitt

Romney. James J. Woodruff II, Freedom of Speech &

Election Day at the Polls: Thou Doth Protest Too

Much, 65 Mercer L. Rev. 331, 332 (2014). More

recently, during last years national election,

Arkansas election officials made clear that shirts

“reminiscent of a party,” like “I miss Bill” or

“Reagan/Bush” shirts would not be allowed at the

polling place.®

The amount of protected speech that Section

211B.11(1) can plausibly ban—indeed, criminalize—is

truly staggering. The statute suppresses the entire

realm of political speech that can be passively

conveyed through personal apparel. Pet. App. A-6 (“all

political material is banned”); 2011 Brief of Appellee

Mansky at 13 (conceding the law “bans all political

® Jennifer Latson, Houstonian wearing Alaska T-shirt nearly

denied a_ vote, Houston Chronicle (Nov. 4, 2008),

http://www.chron.com/neighborhood/cyfair-news/article/Houston

ian-wearing-Alaska-T-shirt-nearly-denied-a- 1 789897.php.

’ Jessica Chasmar, NRA demands Georgia county's elections

board reverse ban on pro-gun clothing, Wash. Times (Oct. 29,

2014), https://www.washingtontimes.com/news/201 4/oct/29/nra-

demands-georgia-countys-elections-boar/.

®* Kathryn Gilker, What Can You Bring To A Polling Place:

Cellphones, Political T-shirts, Children?, 5NEWS (Nov. 7, 2016),

http://5newsonline.com/20 16/1 1/07/what-can-you-bring-to-a-poll

ing-place-cellphones-political-t-shirts-children/.

29

speech”). The provision is also a malleable tool for

punishing a broad range of other types of speech. See

JA 56, © 9 (Respondent Mansky acknowledges that a

Minnesota Vikings shirt could be banned). Given this

reality, it is of litthe moment that the lower courts held

the statute could constitutionally prohibit a few Tea

Party Shirts and an EIW button worn by some of the

MVA members in this case. Those items are a drop in

the bucket of protected political speech punished by

the statute.

Wearing inscribed clothing is a time-honored and

affordable way for the average citizen to peaceably

speak out about politics and other issues, Picray, 916

P.2d at 601 n.12, but Section 211B.11(1) runs

roughshod over this passive and ordinary form of

political expression and turns it into a punishable act.

Minnesotans will naturally respond by refraining

from wearing politically expressive (or arguably

politically expressive) shirts, hats, and other clothing,

causing freedom of speech to suffer. Hicks, 539 U.S. at

119; Broadrick, 413 U.S. at 612 (An overbroad statute

“may cause others not before the court to refrain from

constitutionally protected speech or expression.”).

Indeed, the speech-chilling effects of the statute

extend beyond the millions of people who vote on

election day, as it forbids political apparel for 46 days

before the election in at least 87 absentee voter areas

in a variety of public buildings. Section 211B.11(1).

Moreover, as a practical matter, the statute’s impact

does not end at polling places. Most people barred

from wearing politically expressive clothes when

voting will not put them on for the trip to the polls, or

at all, on election day. See, e.g., JA 64, 4 2; JA 77,4 72;

JA 79, © 77. The overbreadth doctrine is designed to

30

prevent this type of deterrent to free speech. Munson

Co., 467 U.S. at 958.

NO CONCEIVABLE INTEREST SUPPORTS

A BAN ON ALL “POLITICAL” APPAREL

To determine whether the broad political apparel

ban in Section 211B.11(1) passes constitutional

muster, this Court need not decide whether polling

places are a public or non-public forum, or whether

the public forum doctrine is irrelevant in this context.®

Because “no conceivable governmental interest”

supports the criminalization of the entire class of

political messages that can be conveyed through

clothing, the statute’s ban on political speech is

unconstitutional under every possible test. Jews for

Jesus, 482 U.S. at 576 (“[T]he wearing of a T-shirt or

button that contains a political message . . . is still

protected speech even in a nonpublic forum.”); Grace,

461 U.S. at 187 (Marshall, J., conc. in part, dis. in

part).

* Ifit becomes necessary to weigh and potentially apply a more

formulaic approach, MVA contends that Section 211B.11(1) is

subject to strict scrutiny, regardless of forum analysis, because

the statute is a content-based restriction on political speech.

Burson, 504 U.S. at 207; McCutcheon v. Federal Election

Comm'n, 134 S. Ct. 1434, 1446 (2014); Citizens United, 558 U.S.

at 330. The statute would be unconstitutional under this test for

the reasons outlined in the following sections, namely, because

the ban on political apparel is not sufficiently tailored to the

Government's objectives.

31

A. The State’s Interest in Fair and

Orderly Elections Cannot Justify

a Total Political Apparel Ban

The Government may claim that its interest in

peaceful and orderly elections justifies a total ban on

political apparel. This position seems to flow from the

belief that allowing political expression at polling

places could disrupt the voting process. While this

concern might have some traction in cases dealing

with active political solicitation, Burson, 504 U.S. at

211, it falls flat as applied to passive political speech

communicated through apparel. After all, this Court

has already held that this form of expression is “non-

disruptive speech.” Jews for Jesus, 482 U.S. at 576

(emphasis added). Moreover, unlike signs, speech

communicated through personal apparel does not take

up physical space. It is impossible to see how a

“nondisruptive” and physically unobtrusive form of

speech can disrupt voting, and “undifferentiated fear

or apprehension of disturbance is not enough to

overcome the right to freedom of expression.” Tinker,

393 U.S. at 508.

Not surprisingly, there is no evidence in this case

that the t-shirts or other apparel worn by MVA or

other voters caused a “disruption” in a polling place.

The only polling place disruptions in this case arose

from polling officials’ attempt to enforce Section

211B.11(1) to suppress political speech. As is all too

often the case, it is Government reactivity, not speech

itself, that causes a commotion. Cox v. Louisiana, 379

U.S. 536, 543-44 (1965) (police fired tear gas to

disperse a peaceful civil rights demonstration). In the

voting context, requiring election officials to police

apparel disrupts and delays voting. Thus, decorum at

32

polling places is advanced by allowing political

apparel, not by banning it. Woodruff, 65 Mercer L.

Rev. at 368. In cases of actual voter disruption,

Minnesota’s election code gives the Government

plenty of tools to restore and maintain order. Minn.

Stat. § 204C.06 (restricting access to polling places,

lingering, and disorderly conduct). It need not punish

peaceful speech “in order to keep the peace.” Texas v.

Johnson, 491 U.S. 397, 410 (1989) (citing Boos v.

Barry, 485 U.S. at 327-29); see also Grace, 461 U.S. at

186.

The Government may also assert that the statute

serves its interest in protecting voters from confusion

and undue influence. But this rationale is as inapt as

one premised on “order,” given the wide reach of the

“political” apparel prohibition. The ban is not limited

to messages of “express advocacy” for or against a

candidate or a ballot proposal; i.e., messages that urge

others to “vote for,” “elect,” or “support.” Federal

Election Comm'n v. Massachusetts Citizens for Life,

479 U.S. 238, 248-49 (1986). It bars references to

political groups and philosophies that contain no

advocacy or “explicit directive.” /d. As Kighth Circuit

Judge Shepherd observed, a t-shirt merely naming the

AFL-CIO or Chamber of Commerce does not solicit or

influence votes, and yet it is barred. Pet. App. D-18 n.7

(Shepherd, J., conc. in part, dis. in part). Such a

restriction does not reasonably advance the

Government’s interest in fair elections.'” /d.; Picray,

'° The Government would fare no better if it claimed that its goal

was to shield voters from “distractions” at the polling place. This

is not a legitimate interest, as it would justify almost every

speech restriction in every situation and thus swallow the right

of free expression. Erznoznik v. City of Jacksonville, 422 U.S.

205, 201-11 (1975) (Much that we encounter offends our

33

916 P.2d at 329 (“The silent expression of political

opinion is not coercive. To the extent that such

expression in the polling place might affect the votes

of others, that influence cannot be deemed

constitutionally ‘undue.”); Kimberly J. Tucker, “You

Can't Wear That to Vote”: The Constitutionality of

State Laws Prohibiting the Wearing of Political

Message Buttons at Polling Places, 32 'T. Marshall L.

Rev. 61, 81 (2006) (“A button worn during the brief

period that a voter is actually in the polling place

should not be viewed as intimidating or coercing other

voters.”).

Citizens are subjected to all sorts of passive

speech on clothing, on the day of an election and

throughout the year, in the ordinary course of life.

Voters can ignore such influences, if they wish, or they

can choose to pay attention. Brown v. Hartlage, 456

U.S. 45, 60 (1982) (Free speech “embodies our trust in

the free exchange of ideas as the means by which the

people are to choose between good ideas and bad.”).

The choice is theirs, not the Government's. Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 245 (2002) (“As a

general principle, the First Amendment bars the

government from dictating what we see or read... .”).

esthetic, if not our political and moral, sensibilities,” but “the

burden normally falls upon the viewer to ‘avoid further

bombardment of (his) sensibilities simply by averting (his) eyes.”

(citation omitted)). In any event, Section 211B.11 bans not just

potentially “distracting” political apparel—such as (perhaps)

florescent colors, large print, or overtly provocative messages. It

bans all politically expressive apparel, regardless of size, color or

any other characteristic that might potentially “distract.” Small

buttons, small print, grey shirts, bland references to mainstream

political groups—all are just as prohibited as blatantly

provocative expressive clothing.

34

It is no different at polling places. “The State’s fear

that voters might make an ill-advised choice does not

provide the State with a compelling justification for

limiting speech,” much less for totally barring passive

political speech. Brown v. Hartlage, 456 U.S. at 60; see

also Vanasco v. Schwartz, 401 F. Supp. 87, 100

(S.D.N.Y. 1975), affd mem., 423 U.S. 1041 (1976)

(“[W]hen the State through the guise of protecting the

citizen’s right to a fair and honest election tampers

with what it will permit the citizen to see and hear

even that important state interest must give way to

the irresistible force of protected expression under the

First Amendment.”).

Ultimately, it is hard to escape the impression

that the ban on politically expressive clothing hinges

(at least in part) on fear of how people may react to

such clothing. It devolves “to a claim that an audience

that takes serious offense at particular expression is

necessarily likely to disturb the peace and that the

expression may be prohibited on this basis.” Johnson,

491 U.S. at 408. But “the fact that society may find

speech offensive is not a_ sufficient reason for

suppressing it.” Hustler Magazine, Inc. v. Falwell,

485 U.S. 46, 55 (1988) (quoting FCC v. Pacifica

Foundation, 438 U.S. 726, 745 (1978)). Indeed, it is “a

bedrock principle . . . that the government may not

prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable.”

Johnson, 491 U.S. at 414. This principle is especially

strong when the speech at issue is passively conveyed

through “nondisruptive” means, such as clothing.

Whether worn at a college campus, an airport, or a

polling place, clothing that expresses political ideas

and affiliations may not be banned because of the

possibility that a few viewers may be so “triggered” by

the messages that they cause a disturbance. The First

Amendment will not bow to a “hecklers’ veto” over

political clothing any more than it will bow to one over

political picketing. Bachellar v. Maryland, 397 U.S.

564, 567 (1970) (political speech cannot be restricted

“simply because bystanders object to peaceful and

orderly” expression).

B. The Statute’s Vague Prohibition

Invites Expansive Enforcement

and Viewpoint Discrimination

Section 211B.11(1) is further undermined by its

capacity to give poll workers broad and unpredictable

discretion to suppress free speech. Such discretion

extends the reach of the statute and invites viewpoint

discrimination.

Enforcement of Section 211B.11(1) requires

someone to decide what material worn at a polling

place is “political” and forbidden, and which is non-

political and allowed. The Election Day Policy

recognizes that poll workers have effectively

unreviewable authority to decide whether apparel is

“political” and prohibited by the statute. Jews for

Jesus, 482 U.S. at 576. Given the malleable nature of

the word “political” and the reality that there is almost

no issue, cause, or group in America that cannot be

linked to politics at some level, Pet. App. E-27, the

range of possible discretionary applications of the law

is almost limitless. See Pet. App. I-1-2. It is hard to

think of any social, religious, or environmental

message that is certainly beyond the poll workers’

discretionary power to suppress “political” material.

The poll workers’ discretion to apply the vague

term “political” not only enables them to broaden the

36

statute’s reach, it raises a very real danger of

viewpoint discrimination, as polling place officials are

free to apply the “political” kiss of death to disfavored

messages. Any statute that allows Government

officials to selectively muzzle a wide array of

protected, non-disruptive speech is a law that the

First Amendment cannot tolerate. Forsyth County,

505 U.S. at 129; City of Chicago v. Morales, 527 U.S.

41, 52-60 (1999) (provision vaguely barring “loitering”

for “no apparent purpose” held unconstitutional in

part due to the discretion it gave police to apply the

prohibition).

The “political” apparel ban in Section 211B.11(1)

is grossly over-inclusive and dangerously standard-

less. It sweeps in and prohibits every type of political

message that can be passively conveyed on personal

apparel, and invites interference with other types of

speech. In so doing, the law goes far beyond what is

needed to maintain order and fairness at elections,

and does not come close to being “narrowly” tailored

to those objectives. Arizona Free Enterprise Club’s

Freedom Club PAC v. Bennett, 564 U.S. 721, 735

(2011).

C. Burson Does Not Support the Statute

To sustain Section 211B.11(1), the Government

will point to Burson. But Burson provides no support

because that case did not involve a law restricting

citizens’ ability to wear political apparel when voting.

[t dealt with restrictions on active campaigning for

candidates and issues on a ballot. 504 U.S. at 193. The

case was brought by a campaign worker who wanted

to communicate with voters as they went into polling

places. The plaintiff objected to a statute that created

a “campaign free zone” in which one could not engage

37

in “solicitation of votes” or the “display or

distribution” of “campaign materials” near a polling

place. Jd. at 193-94. Characterizing the statute as a

“facially content-based restriction on political speech

in a public forum,” a plurality of the Court applied

“exacting scrutiny.” /d. at 198. It held that the law

served compelling interests in seeking to protect

against voter “fraud” and “intimidation.” /d. at 199;

id. at 198 n.4. The plurality further concluded that the

statute served these interests because of the nation’s

election history. /d. at 206. Finally, it held that a 100-

foot campaign-free zone was sufficiently tailored. /d.

at 209-10. Justice Scalia concurred in the result, but

on different grounds. /d. at 216 (Scalia, J., concurring

in the judgment).

Burson held that the First Amendment does not

forbid creation of an area outside polling places that

is off-limits to campaigning or solicitating. /d. at 211.

The decision did not hold that the Government may

constitutionally bar citizens from silently wearing

campaign-related clothing while voting, much less

that it may prohibit apparel bearing more general

political messages. It therefore does not control or

significantly guide this dispute. Nothing in Burson

prevents this Court from concluding that banning all

political apparel is insufficiently connected to the goal

of free and orderly voting.

38

D. The Statute Has No Legitimate

Sweep or Is Substantially Overbroad

In the end, resolving overbreadth claims involves

comparing a law’s impermissible applications with

those that are plainly legitimate to see if the former

substantially exceeds the latter. Washington State

Grange, 552 U.S. at 449 n.6. Here, it is difficult to find

any plainly legitimate range of application for Section

211B.11(1), given the highly protected nature of

political speech and the fact that political apparel is

passive, unobtrusive, and not disruptive. Silently

wearing clothing with political slogans and names

while voting is simply not “incompatible with the

normal activity” in polling places. Grayned v. City of

Rockford, 408 U.S. 104, 116 (1972); Brown v.

Louisiana, 383 U.S. 131, 142 (1966) (silent protest in

library protected); Jews for Jesus, 482 U.S. at 576

(“[T]he wearing of a T-shirt or button that contains a

political message .. . is still protected speech even in

a nonpublic forum.”).

Certainly, nothing in America’s electoral history

suggests that polling places were off-limits to peaceful

political speech, or even electioneering, at the time of

the First Amendment’s adoption. In fact, at the time,

elections were conducted by voice voting, t.e., through

speech, a system that provided ample opportunity for

political expression. John Doe No, I v. Reed, 561 U.S.

186, 225 (2010) (Scalia, J., concurring) (“Any

suggestion that vrfva voce voting infringed the

accepted understanding of the pre-existing freedom of

speech .. . is refuted by the fact that several state

constitutions that required or authorized viva voce

voting also explicitly guaranteed the freedom of

speech.”); Woodruff, 65 Mercer L. Rev. at 360 (“Based

39

on the election laws and methods of the eighteenth

century, it would appear that those who ratified the

Free Speech Clause would have found the restriction

of passive electioneering offensive.”).

Nevertheless, the Government will likely point to

(1) campaign-related apparel and (2) the lower courts’

application of Section 211B.11(1) to a few Tea Party

shirts and an EIW button in an attempt to create some

legitimate applications for the statute. But this effort

fails. First, MVA does not concede that the First

Amendment allows the Government to forbid voters

from wearing campaign-related shirts, buttons and

the like while voting. Such a restriction is not

necessary for fair and orderly voting, or even

reasonably related to that interest, given the passive

and transitory nature of such expression.

Second, MVA_ does not believe the First

Amendment permits the banning of Tea Party shirts

and the EIW button, when peacefully worn without

disruptive conduct. Tinker, 393 U.S. at 508. While the

lower courts held such items could be prohibited—

based on the Eighth Circuit’s prior ruling sustaining

the facial validity of the statute (see Pet. App. B-10-

12)—that outcome is neith. correct!' nor binding on

'' MVA recognizes that it did not appeal the district court's

rejection of its as-applied claims based on the EIW buttons. It

does not, however, concede that this lower court ruling was

correct (it was not), and the district court's findings and rulings

are not conclusive in this Court, regardless of case history. See

Hurley v, lrish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515

U.S. 557, 567 (1995) (“[T]he reaches of the First Amendment are

ultimately defined by the facts it is held to embrace, and we must

thus decide for ourselves whether a given course of conduct falls

on the near or far side of the line of constitutional protection.”),.

40

this Court.'!2 Hurley, 515 U.S. at 567 (in First

Amendment cases, this Court has “a constitutional

duty to conduct an independent examination of the

record as a whole, without deference to the trial

court.”); see also Bose Corp. v. Consumers Union of

United States, 466 U.S. 485, 501, 503, 510 (1984)

(same); Christianson v. Colt Industries Operating

Corp., 486 U.S. 800, 817 (1988) (“Law of the case”

doctrine cannot bind this Court because a petition for

writ of certiorari exposes the entire case to review.).

The speech conveyed through the Tea Party shirts and

the EIW button is not within the “plainly legitimate

sweep” of Section 211B.11(1).

Yet, even if it was clear that campaign items and

the Tea Party material at issue below could be

constitutionally barred, the statute remains

unconstitutionally overbroad. Such a small class of

(purportedly) proscribable material is dwarfed by the

wide range of passive political speech the statute

illegitimately burdens. The provision would still

impede the vast amount of political expression that

has nothing to with either campaigning or the Tea

Party. Just as a law is not rendered overbroad because

of a few “possibly impermissible applications,” when it

“covers a whole range of easily identifiable and

constitutionally proscribable . . . conduct,” Munson

Co., 467 U.S. at 964-65, a statute that burdens a wide

swath of protected speech is not made constitutional

simply because the Government can posit a few

possibly proscribable situations. Free Speech

Coalition, 535 U.S. at 255 (“The overbreadth doctrine

' Cases decided on distinctions between as-applied and facial

claims are particularly appropriate for holistic review in this

Court. Citizens United, 558 U.S. at 331.

41

prohibits the Government from banning unprotected

speech if a substantial amount of protected speech is

prohibited or chilled in the process.”); United States v.

Stevens, 559 U.S. 460, 475, 480 (2010) (an

unconstitutionally broad ban on depiction of animal

killings was not rendered constitutional because it

might cover some instances of “illegal” and “extreme”

animal cruelty).

Section 211B.11(1) either has no legitimate

sweep, or its invasion of protected speech is

substantial'’ in relation to the little it might

legitimately prohibit. Section 211B.11(1) suppresses

an entire category of highly protected speech—passive

political expression—in a manner that allows for

discriminatory enforcement and harmful spill-over

into other areas of speech. It accordingly functions as

an obvious and unacceptable deterrent to protected

speech. See NAACP v. Button, 371 U.S. at 433 (‘The

threat of sanctions may deter [the exercise of First

Amendment freedoms] almost as potently as the

actual application of sanctions.”). In short, in this

case, the Government’s desire to protect voters from

politics operates “to suppress legitimate expression.”

‘8 The requirement of “substantial” overbreadth (as opposed to

“real” overbreadth) is most proper “where conduct and not merely

speech is involved.” Broadrick, 413 U.S. at 615. This case deals,

of course, with pure speech, not conduct. Thus, MVA is entitled

to the benefit of any doubt (there should be none) as to whether

the statute's overbreadth rises to an unconstitutional level. Jd.;

see also WRTL, 551 U.S. at 469 (opinion of Roberts, C.J.) (First

Amendment analysis “must give the benefit of any doubt to

protecting rather than stifling speech.”) (citing New York Times

Co. v. Sullivan, 376 U.S. 254, 269-70 (1964)).

42

Burson, 504 U.S. at 214 (Kennedy, J., concurring). The

law is overbroad and unconstitutional. '4

Ill.

NO POSSIBLE NARROWING

CONSTRUCTION CAN SAVE THE STATUTE

To avoid the conclusion that Minn. Stat.

§ 211B.11(1) is overbroad, the Government will likely

propose a narrower, and (in its view) more permissible

construction. In particular, it may contend that the

statute can and should be limited to political material

designed to influence voting. It may hope that this will

bring the law under Burson or otherwise render it

constitutional. Opp. at 21. But this strategy fails. The

statute cannot be so limited, and in any event, such a

reading would not diminish the law’s unconstitutional

reach. City of Houston, Tex. v. Hill, 482 U.S. 451, 469

n.18 (1987); Jews for Jesus, 482 U.S. at 576.

The Court will consider a limiting construction

for a statute only if the law is “readily susceptible’ to

such a construction.” Reno v. American Civil Liberties

Union, 521 U.S. 844, 884 (1997). The ban on “political”

apparel is not susceptible to any plausible narrowing

construction. The “language is plain,” Hill, 482 U.S.

'4 Section 211B.11(1) is unconstitutional even if gauged under

the standards of review sometimes associated with non-public

forums. The law is not a reasonable means for advancing the

Government s interest, for the reasons discussed in the text. The

statute is also not viewpoint neutral because it gives poll workers

unfettered discretion to selectively apply the “political” ban and

thus, to prohibit disfavored messages. City of Lakewood v. Plain

Dealer Publ’g Co., 486 U.S. 750, 763-64 (1988) (The danger of

“viewpoint censorship” is “at its zenith when the determination

of who may speak and who may not is left to the unbridled

discretion of a government official.”).

43

at 468, and provides no basis for limiting the

prohibition to certain types of political material. /d.;

Jews for Jesus, 482 U.S. at 575. The Government has

made abundantly clear that it construes the provision

as a total ban on “political” apparel. 2011 Brief of

Appellee Ritchie at 10 n.1; 2011 Brief of Appellee

Mansky at 13.

The Government has specifically acknowledged

that the political apparel prohibition covers more than

campaign and ballot-related apparel. Pet. App. I-1;

(Policy) (noting the statute bars the display of

“political or campaign material”); Opp. at 15

(observing that Section 211B.11(1) prevents “both

wearing ‘campaign’ material and ‘political’ material”);

see also Pet. App. E-23 (district court opinion “finding”

that “the ban on ‘political’ material is easily

understood to include issues beyond those directly

applicable to the ballot”). Consequently, any proposal

to limit the statute to campaign material is

unavailable, as well as implausible. Republicar Party

of Minn. v. White, 536 U.S. 765, 773 (2002) (a

government concession helped establish the broad

scope of a speech restriction); Davis v. Michigan Dep't

of Treasury, 489 U.S. 803, 817 (1989) (ruling adopted

party concession).

In light of its concessions, the Government may

argue for a construction that takes the law a step

beyond campaign material, into the area of more

general “influential” political advocacy, yet stops

there. Opp. at 15. However, this construction is also

not possible given the statute’s broad and unqualified

language, the statutory context, the Policy, and the

Governments’ representations. All of these

considerations show that the law bans far more than

AA

apparel urging voters to side with certain political

causes. It prohibits, for example, items identifying “a

group with recognizable political views” without any

accompanying plea for support from voters. Pet. App.

I-2. To remake the provision into one that prohibits

only advocacy apparel, the Court would have to add

new language to the statute. This is improper. The

Court “will not rewrite a ... law to conform it to

constitutional requirements.” Stevens, 559 U.S. at

481. The “political” apparel ban cannot be sensibly

“limited by anything less than a _ series of

adjudications, and the chilling effect of the resolution

on protected speech in the meantime would make such

a case-by-case adjudication intolerable.” Jews for

Jesus, 482 U.S. at 575-76.

Even if Section 211B.11(1) was susceptible to a

construction limiting it to political material that seeks

to influence voters (it is not), this would not cure the

statute’s overbreadth and unconstitutionality. See,

e.g., Free Speech Coalition, 535 U.S. at 256.' Such a

construction would sweep in not just candidate- and

ballot-related messages, but also apparel supporting

general political ideologies, goals, and beliefs. As a

result, it would still be over-inclusive and

'* Again, Burson offers no shelter for a ban on potentially

“influential” political apparel—or even for a ban on campaign

clothing—since it did not consider those forms of passive speech.

Burson does confirm, however, that any restriction on political

speech on apparel is subject to strict scrutiny. Burson, 504 U.S.

at 207 (a restriction that requires “distinguishing among types of

speech’ triggers strict scrutiny); WRTL, 551 U.S. at 464 (political

speech restrictions are subject to strict scrutiny). The

Government would have to prove that a prohibition on politically

influential apparel is narrowly tailored to serve a compelling

governmental interest. /d. It could not do so.

45

insufficiently tailored to the Government’s interest in

protecting voters from undue influence. McIntyre, 514

U.S. at 345-46 (a restriction on political speech

“designed to influence the voters in an election”

“involves a limitation on political expression subject

to exacting scrutiny” (citation omitted)); see also id. at

357 (“[The State] cannot seek to punish fraud

indirectly by indiscriminately outlawing a category of

speech, based on its content, with no necessary

relationship to the danger sought to be prevented.”);

Hill, 482 U.S. at 469 n.18 (rejecting limiting proposals

that “are either at odds with the ordinance’s plain

meaning, or do not sufficiently limit its scope”); Free

Speech Coalition, 535 U.S. at 255 (“The Government

may not suppress lawful speech as the means to

suppress [purportedly] unlawful speech.”). '6

Apparel refiecting generalized support for

political causes or groups is not akin to electioneering,

nor does it pose a risk of confusing voters charged with

making decisions on specific ballot issues. Van Leer

Containers, Inc. v. NLRB, 841 F.2d 779, 785-88 (7th

Cir. 1988) (wearing a cap supportive of a union at a

polling place is not “objectionable conduct” capable of

tainting a union certification election); Wal-Mart

Stores, Inc. v. NLRB, 400 F.3d 1093, 1097-98 (8th Cir.

2005) (wearing a union t-shirt is not prohibited

“solicitation” but “the passive _ inoffensive

advertisement of organizational aims and interests.”)

‘© A construction limiting the statute to political material

designed to influence others would anomalously allow the

Government to prohibit the same black armbands this Court

upheld as protected speech on school grounds in Tinker, 393 U.S.

at 508. Those bands were worn, after all, in part “to influence

others.” Morse v. Frederick, 551 U.S. at 403 (quoting Tinker, 393

U.S. at 514).

46

(quoting Fabri-Tek, Inc. v. NLRB, 352 F.2d 577, 585

(8th Cir. 1965)).

The Government is free to ban active political

solicitation, campaigning, picketing, and other

conduct that engages and detains voters, and it

already does. As noted above, under the first,

unchallenged, sentence in Section 211B.11(1), it is

already unlawful to “display campaign material, post

signs, ask, solicit, or in any manner try to induce or

persuade a voter within a polling place . . . to vote for

or refrain from voting for a candidate or ballot

question.” But a law that bans people from wearing

clothing supporting political causes as they silently go

about their business + aot necessary to prevent undue

influence and has no support in precedent.!’ Free

Speech Coalition, 535 U.S. at 245 (“As a general

principle, the First Amendment bars the government

from dictating what we see or read ....”); see also

Grace, 461 U.S. at 182; id. at 185-86 (Marshall, J.,

conc. in part, dis. in part) (a law prohibiting the

peaceful display of political messages on Supreme

Court grounds held unconstitutional); Cohen, 403 U.S.

‘7 The final blow to such a proposed limiting construction is that

it simply piles one vague, discretion-conferring standard—‘may

influence voters’—on top of another—‘political.” The line

between politically expressive clothing that may influence and

that which may not, is “at best, murky.” Jews for Jesus, 482 U.S.

at 576. In all but the most overt cases of vote solicitation,

enforcing such a restriction would require polling officials to

guess at the motive behind political messages or their potential

effect on viewers. Cf. United States v. Jones, 18 F.3d 1145, 1155

(4th Cir. 1994) (declining to adopt a rule that would “require

district courts to speculate as to the motives of, or to ascribe

motives to, law enforcement authorities’ ).

47

at 21 (“F--- the Draft” message on a jacket did not

unduly disrupt court proceedings).

It is disconcerting to think that America trusts its

citizens to resolve critical political issues’ by

expressing individual choices in the voting booth, yet

does not believe Americans are capable of voting their

conscience if a political hat or button is present.

Indeed, Americans may vote a particular way for any

reason or no reason at all. A t-shirt will not destroy

democracy. In any event, the cost of a paternalistic

impulse in this area is simply too high. Buckley v.

Valeo, 424 U.S. at 14 (per curiam) (“Discussion of

public issues and debate on ... candidates are

integral to the operation” of government.). “The First

Amendment does not permit [the Government] to

achieve its goal[s] by leaving the principle of elections

in place while preventing [speech of] what the

elections are about.” White, 536 U.S. at 788. The First

Amendment protects the wearing of politically

expressive clothing and other apparel at polling

places.

148

CONCLUSION

The Court should the affirm the value and vitality

of free, peaceful, political speech by declaring the third

sentence of Minnesota Statute Section 211B.11(1)

overbroad and unconstitutional under the [First

Amendment.

DATED: January, 2018.

ERICK G. KAARDAL J. DAVID BREEMER

Mohrman, Kaardal & Erickson Counsel of Record

& Erickson, P.A. WENCONG FA

150 South 5th Street DEBORAH J. LA FETRA

Suite 3100 OLIVER J. DUNFORD

Minneapolis, MN 55402 Pacific Legal Foundation

Telephone: (612) 465-0927 930 G Street

kaardal@mklaw.com Sacramento, CA 95814

Telephone: (916) 419-7111

jbreemer@pacificlegal.org

Counsel for Petitioners

Appendix A-]

Minn. Stat. § 211B.11 provides:

211B.11 ELECTION DAY PROHIBITIONS.

Subdivision 1. Soliciting near polling places. A person

may not display campaign material, post signs, ask,

solicit, or in any manner try to induce or persuade a

voter within a polling place or within 100 feet of the

building in which a polling place is situated, or

anywhere on the public property on which a polling

place is situated, on primary or election day to vote for

or refrain from voting for a candidate or ballot

question. A person may not provide political badges,

political buttons, or other political insignia to be worn

at or about the polling place on the day of a primary

or election. A political badge, political button, or other

political insignia may not be worn at or about the

polling place on primary or election day. This section

applies to areas established by the county auditor or

municipal clerk for absentee voting as provided in

chapter 203B.

Nothing in this subdivision prohibits the distribution

of “I VOTED” stickers as provided in section 204B.49.

Subd. 2. [Repealed, 1997 c 147 s 79}

Subd. 3. Transportation of voters to polling place;

penalty. A person transporting a voter to or from the

polling place may not ask, solicit, or in any manner try

to induce or persuade a voter on primary or election

day to vote or refrain from voting for a candidate or

ballot question.

Subd. 4. Penalty. Violation of this section is a petty

misdemeanor.