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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0752%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2017

## Text

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

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CORPORATE DISCLOSURE STATEMENT............ il
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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) |

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0752%3A07. Public record. Not legal advice.