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

No. 16-1435

In The

Supreme Court of the Anited States

MINNESOTA VOTERS ALLIAN CE;

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’ REPLY BRIEF

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

Tzlephone: (612) 465-0927 930 G Street

kaardal@mklaw.com Sacramento, CA 95814

Telephone: (16) 419-7111

jbreemer@pacificlegal.org

Counsel for Petitioners

TABLE OF CONTENTS

TABLES OF AUT IRORI Ei cccccccossevcsscccsseesscsenssoescene

SE PEPE EOY <vocsicnessnenesossevcoddonseeasesepisebidelomldieal

OO —_ SSID TR

1. THE GOVERNMENT CANNOT

REDEFINE THE TERM

PEER EEEEE DOPUY icsetcnissicnsncsscsnssisnsnnseineniane

ll. THE GOVERNMENT FAILS TO

JUSTIFY ITS BROAD BAN ON

ALL POLITICAL APPAREL ................:0:000000

A. This Case May Be Resolved on the

Basis of Whether Section 211B.11(1)

Burdens a “Substantial” Amount of

“PEE Ce icsecseccssctovitsinssncesnsepediannnende

B. Section 211B.11(1) Fails to Reasonably

Advance the Government’s Interests

in a Substantial Number of Applications...

1. A Total Political Apparel Ban

Does Not Reasonably Advance

the Interest in Focused and

NT III sitinitsiinipacisticiddtiisnicitividdaanen

2. A Total Ban Does Not

Reasonably Address the

Speculative Fear of Disruption ............

C. Banning All Political Apparel

Does Not Reasonably Address

the Danger of Voter Intimidation. ...............

10

il

D. The Statute Cannot Be Considered

Viewpoint Neutral Due to Lack of

Constraints on Discretionary

Application of the Term “Political” ............. 21

Ill. THIS CASE IS NOT APPROPRIATE

FOR STATE COURT CERTIFICATION ...... 22

EER irckntcccscescccecececcecceccnceccoccscceeneccscenscoscves 24

TABLE OF AUTHORITIES

Cases

Ashcroft v. Free Speech Coalition,

I Grn ses 7-8, 10, 22

Baggett v. Bullitt, 377 U.S. 360 (1964)................... 5, 9

Bd. of Airport Comm'rs of Los Angeles v.

Jews for Jesus, Inc.,

ERECT ae ae ee 2, 6-9

Bd. of Regents v. Southworth,

ey I. sensuatndusnmeeneninansioniannen 21

Bell v. Wolfish,

gE SSRERS MERESER ERS eee ee 4

Broadrick v. Oklahoma,

ff |. eee peta toa 3

Brockett v. Spokane Arcades, Inc.,

ee a consennicnmmisinndeatiiadaiin 4

Brown v. Entm’t Merchants Ass'n,

A a ae ee re 19

Burson v. Freeman,

SEE ae ea ee 6, 17

Citizens United v. FEC,

EES eae eS Aen ME ce 16

City of Cincinnati v. Discovery Network, Inc.,

i asemidemnananieal 21-22

City of Houston v. Hill,

a 22-23

Cohen v. California,

ly Se tnicnsieninnseietnilisicndinimiiaadiaianditel 9, 16

iV

Dombrowski v. Pfister,

SER TS EE eR aa NNO 22

Eagle Point Educ. Ass’n/SOBC/OEA v.

Jackson County School Dist. No. 9,

Nos. 15-35704, 15-35972,

2018 WL 560527 (9th Cir. Jan. 26, 2018)........ 14-15

Erznoznik v. City of Jacksonville,

a cia catesicinincsinibineetiniididibdin 14

Harman v. Forssenius,

I eesinceenpeineineliel 23

Hodge v. Taikin,

799 F.3d 1145 (D.C. Cir. 2015) ...............0.cccccceeeees 12

Lewis v. City of New Orleans,

tN em 8, 10

Mayor of Philadelphia v. Educ. Equality League,

le EE cscccsvecinsecinnnintnnseurianneiesininaenmnns 23

McIntyre v. Ohio Elections Comm'n,

8 EE em 8

Members of City Council of Los Angeles v.

Taxpayers for Vincent,

RS Sa ET SSS SS A a 7

Mills v. Alabama,

I cee 16-17

Monitor Patriot Co. v. Roy,

5 RE a le Ra Ren 20

N.A.A.C.P. v. Button,

os tebeeissianlisl 8

Nevada Comm'n on Ethics v. Carrigan,

ee ee i sicicencccatdhenicanitenentadannenneeniaatiiniie 4

New York v. Ferber,

I I ina scales eaneatnnean 6

Nixon v. Shrink Mo. Gov't PAC,

I no cers emtninnaiononenenl 15

Packingham v. North Carolina,

EEE 10, 17

Reno v. ACLU,

I idler 8

Schad v. Borough of Mount Ephraim,

8 aE 11

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

Ne ai isiinsnntnnnnnieniitisiciiniamaipinnnnanision 6

Smith v. Daily Mail Publ’g Co.,

EE LE eee eee 19

Sorrell v. IMS Health, Inc.,

Be ic icnemeeinnbdnionneaouneence 16, 21-22

Spence v. Wash.,

a ai esmnnminnionnion 14

Stromberg v. California,

I aaa ladianembisinnnienianiiadll 8

Talley v. California,

EIR eer eae aa 19

Thornhill v. Alabama,

cece ieibiimeatiaill 8

Tinker v. Des Moines Independent

Community School Dist.,

4 re 13, 15-16

Tobey v. Jones,

706 F.3d 379 (4th Cir. 2013).................cccceccsecesseeees 9

v1

United States v. CIO,

2 eee ae 17, 19

United States v. Grace,

8 81 0 a 11

United States v. National Treasury

Employees Union,

SETS ESTERS ee aac e ee 15

United States v. O’Brien,

ET a ee ee eae ee 21

United States v. Stevens,

559 U.S. 460 (2010) 2.000... cccce cece eee 2, 4, 6, 8, 10

United Siates v. Williams,

AL eR ee erga i)

Van Orden v. Perry,

ELLE Ne 12

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc.,

I 9-10

Virginia v. Hicks,

ER A A eT ar 7

Washington State Grange v.

Washington State Republican Party,

aN Se dR eR 7

Wooley v. Maynard,

ES A 22

Zwickler v. Koota,

I Pa tees ih ie 22

vii

Statutes

i a 8 ee 24

DE: BORE. FS BOD ccc cccccscscesesccccssccccsccssesssesnces 15

ss nn ni ncn ninnseiniinnennhennineens 13

Bs Is i on. cecansatsnnsessucnsncsnnionseiae 13

ED, CORE, Te Teese csccccaccccscssosscescssossncsncossecs 13

ce 18

SE >. SESE RES Seer passim

Rule

Ses EE, Geis a aciiesnnniennncbeastinnibedindictanspanntsitgidncesensienth 23

Other Authorities

Hat: Make Speech Free Again, Gab.ai,

http://shop.gab.ai/products/hat-make-

speech-free-again-coming-soon

(last visited Feb. 16, 2018)...................0..0..00c000c0ee- 19

Mettler, Katie, He wore a Trump hat and

‘deplorables’ shirt to vote. Texas

police arrested him., The Wash. Post

(Oct. 28, 2016), https://www.washingtonpost.com/

news/morning-mix/wp/20 16/10/28/he-wore-a-

trump-hat-and-deplorables-shirt-to-vote-texas-

police-arrested-him/?utm_term=.069bfa940078 .. 19

Office of Minn. Sec’y of State, Elections

and Voting, https://www.sos.state.mn.us/

elections-voting/other-ways-to-vote/

Genet PHREIOE POR: 1B, BOTB) .ccccccccccccscccccesccccccsccsccese 13

Vill

Office of Minn. Sec’y of State,

Election Admin. and Campaigns,

http://www.sos.state.mn.us/election-

administration-campaigns/data-maps/

historical-voter-turnout-statistics/

(last visited Feb. 13, 2018)......................0..0.0c000

Osborn, Claire, Williamson County asked to

apologize to voter told to cover Vote the Bible’

T-shirt, Statesman (Nov. 1, 2012),

http://www.statesman.com/news/williamson-

county-asked-apologize-voter-told-cover-vote-

the-bible-shirt/BuA5hwShbbVDjI[TrFRGFOO’ ....

What Can You Bring To A Polling Place:

Cellphones, Political T-shirts, Children?,

5 News KSFM (updated Nov. 8, 2016),

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

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

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

20

INTRODUCTION

In the Respondents’ brief (RB), the Government

engages in the impossible task of minimizing the

reach and constitutionally burdensome nature of

Minn. Stat. Section 211B.11(1)’s ban on political

apparel. It is undisputed that the variety of available

political apparel—and the messages and logos that it

conveys—is almost endless in today’s society. It is also

undisputed that people communicate through political

apparel for many reasons, including purely for self-

expression and _ identification of associational

interests. Since Section 211B.11(1) prohibits all or

almost all of this constitutionally protected speech in

polling places on election days and for 46 days before

at absentee voting locations, the ban is substantially

overbroad and unconstitutional under a

straightforward application of the First Amendment

overbreadth doctrine.

The Government asserts three primary

arguments to escape this conclusion: (1) it offers a

last-minute attempt to re-define and narrow the term

“political,” (2) argues that Section 211B.11(1) survives

under a “reasonableness” analysis, and (3) requests

certification to the Minnesota Supreme Court. All lack

merit. Nothing in the statute’s text or the

Government's prior, official constructions of the

political apparel ban limit the ordinary and broad

meaning of the term “political.” The Government's

attempt to reverse course now is improper and

unpersuasive.

Its approach to the merits of the case suffers from

the same defects. This is a First Amendment

overbreadth case, not an ordinary, more limited, facial

challenge. As such, it can and should be resolved

based on the extreme degree to which Section

211B.11(1) intrudes on protected, passive political

speech, and the lack of obvious legitimate

applications. United States v. Stevens, 559 U.S. 460,

472-73, 480 (2010); Bd. of Airport Comm'rs of Los

Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575-76

(1987). But even assuming a “reasonableness” test is

pertinent, the statute is overbroad under that inquiry

because it prohibits tremendous amounts of passive

political self-expression and association that lacks any

reasonable connection to the voter “disruption” and

“intimidation” concerns underlying the statute.

Finally, in light of the nature and circumstances

of this dispute, certification of this case to a state court

is not an available or proper resolution to the

controversy. Section 211B.11(1) must be declared

facially invalid.

ARGUMENT

I.

THE GOVERNMENT

CANNOT REDEFINE THE

TERM “POLITICAL” NOW

Throughout this controversy, the Government

contended that the term “political” in Section

211B.11(1) includes all views and groups that can be

classified as political. 2011 Brief of Appellee Ritchie at

10 n.1 (“political” includes all political speech); id. at

11 (“Section 211B.11 applies to the entire class of

badges, buttons and insignia that constitute political

speech”); 2011 Brief of Appellee Mansky at 14 (statute

bars “any politicization”). It did so out of deference to

the statute’s plain language and to avoid charges of

viewpoint discrimination. But before this Court, the

Government seeks to redefine “political” to mean only

messages “relating to questions of governmental

affairs facing voters on a given election day.” RB at 19.

This reformulation cannot be accepted. First,

nothing in Section 211B.11(1)’s plain language limits

the reach of the third sentence to only certain types of

political material; it unreservedly covers all “political”

insignia. Second, the Government's official election

guidance materials confirm the broad meaning of the

term, and that it goes beyond issues on the ballot. The

Election Day Policy, which the Government concedes

must be viewed as an authoritative construction, RB

at 17, construes “political” to include: (1) “issue-

oriented material designed to influence or impact

voting,” (2)“[mJaterial promoting a group with

recognizable political views (such as the Tea Party,

MoveOn.org, and so on),” and (3) current and past

material referring to candidates, parties, or ballot

issues. Pet. App. I-1-2 (emphasis added). Other

documents from the Minnesota Secretary of State’s

Office add that “political” includes all “partisan

references.” Docket Entry (DE) at 20 (Appendix A to

Declaration of Gary Poser). The Policy carefully notes

that “political” apparel is “not limited to” the items in

the Policy. Jd. at I-1 (emphasis added).

This is more than enough to confirm the term

“political” in Section 211B.11(1) includes all political

expression. Broadrick v. Oklahoma, 413 U.S. 601, 618

(1973) (“[A] court cannot be expected to ignore these

authoritative pronouncements in determining the

breadth of a statute.”). Indeed, every court that has

considered the issue has so construed the statute, Pet.

App. E-15 (district court finds it bars “all manner of

political views”); id. A-6 (Eighth Circuit: “all political

material is banned”), and those constructions are

entitled to deference. Brockett v. Spokane Arcades,

Inc., 472 U.S. 491, 499-500 (1985).

Given the statutory text, the Government’s

policies and enforcement practices,' and the lower

courts’ decisions, the term “po’itical” in Section

211B.11(1) cannot be construed to cover only an

amorphous subset of speech related to “governmental

affairs” at issue in an election. Jd. It is little surprise,

then, that the Government never previously advanced

this definition. Its attempt to do so now is telling and

futile. Stevens, 559 U.S. at 480 (The Government’s

claim that a law will be enforced “more restrictively

than its language [allows] is pertinent only as an

implicit acknowledgment of the potential

constitutional problems with a more natural

reading.”); Bell v. Wolfish, 441 U.S. 520, 561 n.42

(1979) (in determining scope of a rule, “we consider the

rule in its present form and in light of the concessions

made by [the government]”); Nevada Comm’n on

Ethics v. Carrigan, 564 U.S. 117, 128-29 (2011)

(“Arguments thus omitted [in prior briefing] are

normally considered waived.”).

Finally, upon examination, the Government’s

attempt to limit the term “political” to “governmental!”

concerns generally at issue in an election is not much

of a change at all. The definition is so vague that it

allows and invites unpredictable and _ broad

enforcement—including to all things “political.”

! Petitioners banned Tea Party shirts included no messages

about governmental choices on the ballot. The shirts merely

displayed political ideologies (‘Don't Tread on Me,” “Liberty”)

and a small group identification (the T.a Party logo). Pet. App.

B-25.

Baggett v. Bullitt, 377 U.S. 360, 372 (1964)

(ambiguous meanings cause citizens to “steer far

wider of the unlawful zone,’ than if the boundaries of

the forbidden areas were clearly marked.” (citation

omitted)). The meaninglessness of the Government’s

shift is further confirmed by the fact that the

Government fails to argue that any of the examples of

“political” messages in the Policy or in MVA’s brief

would not qualify as political material under its new

“governmental issues facing voters on election day”

definition. Petitioners’ Brief on the Merits at 24-28.

For all these reasons, the Court should analyze

Section 211B.11(1) in light of the ordinary, broad

meaning of the term “political,” a meaning the

Government accepted and promoted at all times

relevant to this controversy.

Il.

THE GOVERNMENT

FAILS TO JUSTIFY ITS BROAD

BAN ON ALL POLITICAL APPAREL

Despite the broad reach of its “political” apparel

ban, the Government contends that Section

211B.11(1) is not facially unconstitutional because it

reasonably advances governmental interests in

“maintain[ing] peace, order and decorum’ in the

polling place, ‘protecting voters from confusion and

undue influence’ such as intimidation, and ‘preserving

the integrity of its election process.” RB at 41. This

position does not reflect the relevant inquiry and fails

on its own terms.

A. This Case May Be Resolved

on the Basis of Whether Section

211B.11(1) Burdens a “Substantial”

Amount of “Protected” Speech

MVA’s facial claim was litigated below under the

First Amendment overbreadth doctrine, Pet. App. D-

5, 10, the Petition for Certiorari presented that

doctrine, and the Government's Opposition to the

Petition addressed it. Pet. Opp. 11-15. Thus, the sole

claim here is a facial one arising under the

overbreadth doctrine.? Nevertheless, the Government

seeks to litigate this case as a standard facial

challenge; i.e., one largely constrained by the facts and

parties in the case and resolved through means-ends

testing. RB at 38; see, e.g., Burson v. Freeman, 504

U.S. 191, 198-99 (1992).

This approach is improper here, or at least very

incomplete, because it gives short shrift to the

standards and concerns of the First Amendment

overbreadth doctrine. See Stevens, 559 U.S. at 472-73.

That doctrine articulates a special, independent

framework for facially scrutinizing a restriction that

may burden the free speech rights of parties not before

the Court. Id.; New York v. Ferber, 458 U.S. 747, 767-

73 (1982). An affected plaintiff can invoke the doctrine

regardless of the status of the plaintiffs as-applied

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

Co., 467 U.S. 947, 956-52 (1984); Jews for Jesus, 482

U.S. at 574-76 (adjudicaiing a facial overbreadth

2 MVA agrees that MVA’s as-applied claims are not before this

Court, because MVA did not appeal a portion of the District

Court's adverse ruling on those claims to the Eighth Circuit, Pet.

App. A-1-7, and did not raise any as-applied claims in the

Petition for Certiorari. Pet. at 9.

claim before resolution of an as-applied claim); or the

nature of the forum in which the challenged law

applies. Jd. (applying doctrine in an airport without

regard for whether it was a public or non-public

forum); Virginia v. Hicks, 539 U.S. 113, 115-17 (2003)

(applying doctrine to a rule regulating government-

run housing, a non-public forum).

The test that governs claims, like that here,

arising under the First Amendment overbreadth

doctrine is whether the statute “prohibits a

substantial amount of protected speech.” Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 244 (2002). Some

decisions add that any burden on protected speech

should be judged in relation to the law’s “plainly

legitimate sweep.” Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 449

n.6 (2008).

A critical aspect of this standard is whether the

speech affected by a challenged statute is

constitutionally “protected.” When it is, the

overbreadth inquiry often hinges on the extent to

which the subject statute intrudes upon the protected

speech. See Free Speech Coalition, 535 U.S. at 255

(“The overbreadth doctrine prohibits the Government

from banning unprotected speech if a substantial

amount of protected speech is prohibited or chilled in

the process.”); Members of City Council of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)

(Substantial overbreadth only requires “a realistic

danger that the statute itself will significantly

compromise recognized First Amendment protections

of parties not before the Court for it to be facially

challenged on overbreadth grounds.”). When the

intrusion is extensive and plain, and legitimate

applications of the law are not, the Court may resolve

the case based on the laws overreach, without

searching analysis designed to map-out the statute’s

legitimate scope. Stevens, 559 U.S. at 472-73; Jews for

Jesus, 482 U.S at 575; Lewis v. City of New Orleans,

415 U.S. 130, 133 (1974); Thornhill v. Alabama, 310

U.S. 88, 97 (1940).

Given the overbreadth doctrine’s focus on the free

speech rights of parties not before the Court, the

inquiry into a laws reach “take[s] into account

possible applications of the statute in other factual

contexts besides that at bar.” N.A.A.C.P. v. Button,

371 U.S. 415, 432 (1963); see also, Free Speech

Coalition, 535 U.S. at 247-48 (concluding, in an

overbreadth case, that Shakespeare’s Romeo and

Juliet and the movie Traffic potentially fell within the

reach of a child pornography prohibition); Reno v.

ACLU, 521 U.S. 844, 878 (1997) (positing that the

Communications Decency Act may “extend to

discussions about prison rape or safe sexual practices,

artistic images that include nude subjects, and

arguably the card catalog of the Carnegie Library” in

holding it overbroad).

Here, the passive political speech prohibited by

Section 211B.11(1) is plainly “protected” speech.

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346

(1995) (political speech is at “the core of the protection

afforded by the First Amendment”); Stromberg v.

California, 283 U.S. 359, 369 (1931) (striking down a

law preventing a display of a flag in “opposition to

organized government”). In Cohen, Tinker, and Jews

for Jesus, this Court confirmed that protection for

passive political speech extends to non-public forums.*

Jews for Jesus explicitly states: “the wearing of a T-

shirt or button that contains a political message . . . is

still protected speech even in a nonpublic forum.” 482

U.S. at 576 (emphasis added) (citing Cohen v.

California, 403 U.S. 15 (1971)); see also, Tobey v.

Jones, 706 F.3d 379, 391 (4th Cir. 2013) (political

apparel is a “clearly established” right in non-public

forums).

Given the protected nature of the speech at ‘ssue

here, MVA’s overbreadth challenge to Section

211B.11(1) depends largely on the statute’s reach into

that area of speech. As MVA’s opening brief showed,

the provision swallows the entire realm of passive

political self-expression and advocacy. Petitioners’

Brief on the Merits at 23-30; Pet. App. I-1-2. The

Government’s contrary assertions notwithstanding,

RB at 54, the vague reach of the term “political”

confirms and extends the statute’s overbreadth.‘

Baggett, 377 U.S. at 372; Village of Hoffman Estates

v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494

n.6 (1982) (“The vagueness of a law affects

5 MVA acknowledges that polling places are non-public forums,

but contends that this is irrelevant to the analysis, see footnote

5, infra. Moreover, this acknowledgement is not meant to, and

does not, concede that “reasonableness” review controls here. See

footnote 8, infra.

4 The Government's claim that MVA cannot point to vagueness

because it did not bring a separate vagueness challenge is not

consistent with the First Amendment overbreadth doctrine.

Vagueness is always a relevant factor in that context. United

States v. Williams, 553 U.S. 285, 304 (2008) (The Court has

permitted “plaintiffs to argue that a statute is overbroad because

it is unclear whether it regulates a substantial amount of

protected speech.”).

10

overbreadth analysis.”). Section 211B.11(1) intrudes

on an entire class of important, protected speech.

Conversely, the law has little “plainly legitimate”

application beyond categorically unprotected speech,

like “fighting words.” This case does not present a

close call on overbreadth. As a result, the statute can

and should be held unconstitutionally overbroad

without analysis designed to find and carve out a few

possibly legitimate applications. Packingham v.

North Carolina, 137 S. Ct. 1730, 1738 (2017); Stevens,

559 U.S. at 474-82; Lewis, 415 U.S. at 133.

B. Section 211B.11(1) Fails to Reasonably

Advance the Government’s Interests

in a Substantial Number of Applications

In contrast to the foregoing analysis, the

Government seeks to directly apply the

“reasonableness” and “viewpoint neutrality” tests

often associated with non-public forums to decide

whether Section 211B.11(1) is facially

unconstitutional. This approach overlooks the

“substantial burden on protected speech” standard in

the overbreadth doctrine and _ unnecessarily

complicates this case.* Stevens, 559 U.S. at 472-73.

5 Under this path to resolution of this case, it is unnecessary for

this Court to apply forum analysis and/or to decide what First

Amendment mean-ends test applies in this matter based on that

analysis. See footnotes 3, supra, and 8, infra.

6 The Government fails to recognize that the possibility of some

legitimate applications will not save a speech restriction in an

overbreadth case if the statute also frustrates a substantial

amount of protected speech. Stevens, 559 U.S. at 472-73, 481;

Ashcroft, 535 U.S. at 244, 255. That is why overbreadth analysis

often focuses on, and is resolved based on, a law's impermissible

reach. Id.

1]

However, even assuming the Government’s approach

is relevant, it cannot save Section 211B.11(1) because

the statute does not reasonably advance the

Government's interests in a substantial number of

applications.’ Put another way, the Government's

election interests do not reasonably justify its

sweeping ban on political apparel.® United States v.

Grace, 461 U.S. 171, 187 (1983) (Marshall, J., conc. in

part, dis. in part) (“So sweeping a prohibition fon

display of flags, banners and devices] is scarcely

necessary to protect the operations of this Court

ee |

1. A Total Political Apparel Ban

Does Not Reasonably Advance the

Interest in Focused and Smooth Voting

The Government contends that Section

211B.11(1) reasonably advances peace and order at

polling places for two reasons: (1) it ensures “voters

are focused on the voting activity; that election judges

can focus on their tasks, rather than policing

altercations and disturbances,” and that “the voting

process inside the polling place runs smoothly;” and it

(2) protects against “verbal disputes or even physical

’ The Government implicitly concedes that such a conclusion

would render the statute overbroad and unconstitutional. RB at

38 (The statute is not overbroad if “considering ail its

applications, [it] is reasonably tailored to further the State's

interests... .” (emphasis added)).

8 Alternatively, the Court should analyze the statute under

strict scrutiny because (regardless of forum considerations) that

standard, not reasonableness review, is a more appropriate test

given the political and categorical nature of the speech restriction

here. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 67 (1981)

(“exclusion of a broad category” of speech demands heightened

scrutiny).

12

altercations” that may arise from political apparel. RB

at 42-43. These claims fail.

It is true that the Government has a legitimate

interest in maintaining an efficient and focused voting

process. But this interest does not reasonably justify

Section 211B.11(1) because most of the passive

political speech it prohibits does not reasonably

implicate the interest. The passive nature of the

speech alone deeply undercuts the strength of the

“peace” interest. This case does not deal with yelling,

picketing, marching, leafletting, or other types of

active speech that might reasonably threaten a calm

environment. It is concerned with expression that is

totally silent, and thus, highly unlikely to attract

attention. Hodge v. Talkin, 799 F.3d 1145, 1169 (D.C.

Cir. 2015) (“The passive bearing of [such] a logo or

name on a t-shirt, without more, normally would not

cause the public to pause and take notice . . . .”); see

also, Van Orden v. Perry, 545 U.S. 677, 691 (2005)

(passive nature of a monument limited its effect on

others).

Further, substantial amounts of the passive

political messaging prohibited by Section 211B.11(1)

is ordinary, common, and noncontroversial expression

that raises no reasonable threat of diverting voters or

election officials. Perhaps the clearest example is the

ban on “group[s] with recognizable political views,”

Pet. App. I-1-2, which bars the identification of

innumerable mainstream organizations, like

“NAACP.” “Chamber of Commerce,” “AFL-CIO,” and

“ACLU.” See Pet. App. D-18 n.7 (Shepherd, J., conc. in

part, dis. in part). Clothing displaying the names of

these and similar associations is ubiquitous in society.

It poses no stumbling block to voters continuing on

13

with their business in polling places, and the

Government has no evidence it has such an effect. See,

e.g., Tinker v. Des Moines Independent Community

School Dist., 393 U.S. 503, 505, 514 (1969).

To heighten the perceived risk of voter

distraction, the Government imagines a

“bombardment” of constant, campaign-like political

messaging by individuals and coordinated groups. RB

at 42-43. But this vision is plausible only if one ignores

the many other, unchallenged polling places

regulations that directly and effectively control the

voting environment. Under these regulations, voters

cannot loiter in polling places in groups or alone with

apparel on display. Opp. at 30 (citing Minn. Stat.

§ 204C.06). No one can approach voting booths. Minn.

Stat. § 204C.06(2). Soliciting and other interactive

campaigning is prohibited. Jd. § 211B.11(1). People

must vote and leave. Jd. § 204C.06(1). The existence

of this regime means that the political apparel ban

rests on the alleged need to wipe out the infinitesimal

threat of distraction that allegedly arises from

political apparel, after enforcement of other

restrictions directly securing order and space for

voters. This minimal interest is further reduced by the

fact that voters can go quickly into their private voting

booth, avert their eyes, or vote early by absentee

ballot? to avoid the fleeting presence of political

® Minnesota allows and encourages absentee and early voting by

mail. https://www.sos.state.mn.us/elections-voting/other-ways-

to-vote/ (last visited Feb. 13, 2108). Nearly 30% of voters 65 and

older voted absentee in the 2016 election.

http://www.sos.state.mn.us/election-admininistration-campaign

s/data-maps/historical-voter-turnout-statistic#” (last visited

Feb. 13, 2018).

14

apparel. Erznoznik v. City of Jacksonville, 422 U.S.

205, 210-11 (1975) (“[T]he burden normally falls upon

the viewer to ‘avoid further bombardment of (his)

sensibilities simply by averting (his) eyes.”) (citation

omitted). There is neither a harassing campaigner nor

captive audience problem here. Spence v. Wash., 418

U.S. 405, 414 (1974). It defies all logic to claim that

banning clothing that silently conveys an easily

avoided political expression for a few minutes, in a

context that already ensures privacy for voters, is

reasonably required for “peace and decorum.”

2. A Total Ban Does Not Reasonably

Address the Speculative

Fear of Disruption

Also without merit is the Government’s claim that

a total ban on political apparel reasonably serves the

need to avoid “disruptions” and “altercations” in

polling places. It points to the possibility of people

wearing “aggressive, vulgar, or racially targeted

campaign and political messages.” RB at 46. Certain

amici warn of the presence of Nazi and KKK material.

To the extent this small subset of speech amounts to

“fighting words” and “true threats,” it can already be

prohibited under the state’s police powers. But Section

211B.11(1) prohibits much more than categorically

unprotected speech. It prohibits all other types of

political self-expression and association as well, like

shirts that say “MoveON.org,” Pet. App. I-1-2, or

“Minnesota Vikings.” JA at 56 4 9. These items raise

no reasonable risk of a disruption. Eagle Point Educ.

Ass’n/ SOBC/OEA v. Jackson County School Dist. No.

9, Nos. 15-35704, 15-35972, 2018 WL 560527 (9th Cir.

Jan. 26, 2018) (an anti-picketing policy that banned

inflammatory signs did not reasonably serve the goal

15

of preventing “disruption of classes” because it also

banned non-inflammatory ones).

The Government's contrary position rests on

nothing but speculative, unsupported fear. It has no

evidence that a political shirt or hat ever triggered a

disruption in Minnesota polling places or any other

state. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,

392 (2000) (“The Court ha[s] never accepted mere

conjecture [from the government] as adequate to carry

a First Amendment burden”). It references fights in

two out-of-state news stories, RB at 44 & n.22, but the

altercations there did not arise from apparel and they

were not in polling places. They arose from active

electioneering outside polling places, something not at

issue here. “Generalized fear of ‘disruption’ is not

enough” to restrict speech, even in a nonpublic forum.

Eagle Point Educ. Ass’n, 2018 WL 560527, at *7; see

also Tinker, 393 U.S. at 514. Bt that is all the

Government can point to. United States v. National

Treasury Employees Union, 513 U.S. 454, 475 (1995)

(A “reasonable’ burden on expression requires a

justification far stronger than mere speculation about

serious harms.”).

Still, the Government requests deference to its

fears because “[t]ensions may well be running high [at

polling places], particularly when the election has

been a contentious one, or the issues at stake are

particularly momentous.” RB at 43. This does not

elevate its fears enough to justify a broad ban on

political apparel. That ban applies in all polling

places, rural and urban, large and small, including

absentee ballot stations open for 46 days prior to an

election, Minn. Stat. §§ 211B.11(1), 203B.081(1),

without respect to the nature of the election or the

16

psychological atmosphere. Moreover, peaceful

political speech is most valued and protected in times

of “tension.” Cohen v. California, 403 U.S. at 24-25.

The Vietnam War era was marked by tension and

even violence and yet this Court confirmed that the

First Amendment right to controversial self-

expression outweighs any fears of a_ potential

disruption. See id.; Tinker, 393 U.S. at 508, 514. The

principle has not lost its force with time. !°

C. Banning All Political Apparel Does

Not Reasonably Address the Danger

of Voter Intimidation

The Government also fails to support its claim

that banning political apparel reasonably advances

the goal of protecting voters from “undue influence,”

which it defines as “confusion” and “intimidation.”?!

10 The Government's suggestion that political speech on apparel

may impede the work of election judges derives from its fear that

such apparel will trigger voter disturbances that judges must

constrain. RB at 42 (“judges [must be able to] focus on their tasks,

rather than policing ... disturbances”). But since fear of

speculative disturbance does not reasonably justify banning all

political apparel, the ancillary and even more disconnected fear

that judges might have to police those speculative disturbances

fails as well.

'!1 The Government declines to claim that banning political

apparel is justified by a need to shield voters from any

generalized influence arising from political apparel as this is

tantamount to saying the Government has a valid interest in

protecting people from free speech itself. It does not. Sorrell v.

IMS Health, Inc., 564 U.S. 553, 576 (2011) (“(T]he fear that

speech might persuade provides no lawful basis for quieting it.”);

Citizens United v. FEC, 558 U.S. 310, 382 (2010) (‘A speaker's

ability to persuade ... provides no basis for government

regulation of free and open public debate on what the laws should

be.”); Mills v. Alabama, 384 U.S. 214, 219-20 (1966) (striking

17

RB at 44; see also United States v. CIO, 335 U.S. 106,

143 (1948) (Rutledge, J., concurring) (“undue

influence” refers to “disproportionate sway” and “bloc

power’). For support, it points to Burson, asserting

that the case holds “that a state statute prohibiting

display of campaign materials in the public forum

outside the polling place is justified by the interest in

avoiding voter intimidation and confusion. The same

concerns exist to an even greater extent inside the

polling place... .” RB at 44 (citation omitted).

This view is flawed in two important ways. First,

Burson did not hold that the goal of preventing voter

intimidation justified a prohibition on the passive,

silent, and fleeting display of campaign speech. It held

that such an interest justified banning campaign

workers from interacting with, and soliciting, people

entering the polling place. 504 U.S. at 211;

Packingham, 137 S. Ct. at 1737-38. Second, unlike

Burson, Section 211B.11(1) is not limited to

“campaign material.” The law at issue here bars that

and all other “political” expression. Burson offers no

support for the claim that banning passive political

speech on apparel is reasonable to prevent voter

intimidation.

The Government’s final effort to find “undue

influence” in passive speech on apparel is to repeat its

fear of a coordinated “barrage of political and

campaign messages.” RB at 45. Without Section

211B.11(1), it claims, “campaigns and advocacy

groups will be able to organize supporters to wear

political apparel to the polling place in an effort to win

elections, perhaps focusing on peak voting times.” Jd.

down a law designed to shield voters from last minute “influence”

related to campaign advocacy).

18

at 45-46. It might confuse or intimidate voters, it

asserts, if a voter sees “that every other voter [in the

polling place] held the opposite point of view,” as

evidenced by their apparel.!? Jd. at 46.

This picture also ignores existing laws that

directly regulate behavior in the polling places. If a

large group of apparel-wearing individuals ever tried

to stand in a polling place to jointly pressure voters,

thus crossing the line between passive speech and

electioneering, existing regulations prohibiting active

campaigning, Minn. Stat. § 211B.11(1) (first

sentence), undue influence, id. § 211B.07, and

loitering, are available to control the activity.

Even if one entertains the dubious assumption

that the passive and temporary presence of speech on

apparel could assert undue influence on voters, the

broad nature of the political apparel ban renders it

unreasonable as a tool to address that concern. After

all, the statute prohibits or chills a substantial

amount of non-advocacy self-expression, like

12 The Government also suggests that intimidation might occur

if official election workers wore political apparel. RB at 46. MVA

acknowledges that Minnesota can bar official polling place

workers and observers from wearing partisan apparel as a

narrowly tailored means to secure government impartiality—

and the appearance of impartiality. However, an all-

encompassing ban on political apparel, one sweeping in material

referencing the names of organizations, is overbroad even with

respect to poll workers and officials who work in absentee ballot

locations. Further, the Government has not raised an interest in

impartiality to justify the political apparel ban, most likely

because the ban predominately regulates voters, not poll

workers.

19

ideological statements (“Make Speech Free Again”),!*

group identifications, partisan material referring to

former political personalities (“I Miss Bill”),'4 and

statements of personal concern and association

(“Basket of Deplorables”),!© that cannot be reasonably

construed as voter pressure.!® Talley v. California,

362 U.S. 60, 64 (1960) (a ban on handbills that failed

to disclose the author was not justified by an interest

in preventing fraud and libel because it was not

limited to items with such traits); CIO, 335 U.S. at 146

(Rutledge, J., concurring) (a statute barring unions

from spending money on political publications to

prevent “undue influence” was too broad).

To minimize the consequences of its unreasonably

broad ban on passive political expression, the

Government assures the Court that the restriction on

free speech operates only for the ten minutes or so

18 https://shop.gab.ai/products/hat-make-speech-free-again-com

ing-soon (last visited Feb. 16, 2018).

14 See http://5newsonline.com/2016/11/07/what-can-you-bring-to

-a-polling-place-cellphones-political-t-shirts-children/.

16 In 2016, a man wearing a shirt stating “Basket of Deplorables”

was arrested for refusing to take it off after being ordered to do

so at a Texas polling place. https://www.washingtonpost.com

/news/morning-mix/wp/2016/10/28/he-wore-a-trump-hat-and-de

plorables-shirt-to-vote-texas-police-arrested-him/?utm_term=.0

69bfa940078.

16 The law is also unreasonable as a means to address political

advocacy in polling places because it is underinclusive. No

Minnesota law bars a voter from carrying a voting guide,

newspaper, magazine, book, phone, or computer tablet that

conveys a potentially “influential” political message into a polling

place. Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 802

(2011); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104-05

(1979).

20

people are in polling places. RB at 21. It is, however,

a substantial affront to personal autonomy and

expression to be told by the Government that one

cannot peacefully speak about the government,

particularly during an election, whether that

restriction lasts ten minutes or ten hours.!7 Moreover,

common sense and evidence in the record confirms

that people who cannot wear political apparel when

actually voting will be deterred from wearing it when

going to and from polling places. JA 119, 4 27; id. at

122, 4] 9. Finally, the Government’s argument ignores

the political apparel ban’s application to absentee

voting locations.

People want to wear apparel communicating

personal beliefs at times and places where it matters.

JA 109, 4 6, 16; id. at 41, § 16. The desire and value

of expressing one’s own political beliefs is naturally

heightened in election season, when everyone is

discussing political topics. Monitor Patriot Co. v. Roy,

401 U.S. 265, 272 (1971) (The First Amendment “has

its fullest and most urgent application” to speech

uttered during a campaign for political office.). Section

211B.11(1) imposes a sweeping and unreasonable

suppressant on the use of apparel to peacefully convey

political self-expression at a time when its value as

speech is at its zenith and its protection is most

needed. Jd.; JA 117 at 24, id. at 119, § 27; JA 122,49

(affidavits documenting Section 211B.11(1)’s chilling

effect on individual self-expression).

'7 See http://www.statesman.com/news/williamson-county-aske

d-apologize-voter-told-cover-vote-the-bible-shirt/BuA5hwShbbV

DjITrFRGFOO/ (a woman forced to remove her “Vote the Bible”

shirt when voting in Texas in the 2012 election recounts how the

order made her feel “embarrassed, humiliated and intimidated’).

21

D. The Statute Cannot Be Considered

Viewpoint Neutral Due to Lack of

Constraints on Discretionary

Application of the Term “Political”

The Government wrongly contends that Section

211B.11(1) raises no viewpoint’ discrimination

concerns. RB at 54-55 (mistakenly viewing the inquiry

into viewpoint discrimination as a superficial one). In

addition to considering whether a law discriminates

against certain views on its face, the Court

considers—even in facial disputes—whether the law

may have a discriminatory effect in practice. See

Sorrell, 564 U.S. at 564 (the “inevitable effect of a

statute on its face may render it unconstitutional”)

(quoting United States v. O’Brien, 391 U.S. 367, 384

(1968))). The danger that a law may be used for

viewpoint discrimination is highest when it hinges on

standards that are susceptible to shifting and

discriminatory application. City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 423 n.19 (1993)

(because “the distinction between a ‘newspaper’ and a

‘commercial handbill’ is by no means clear. . . the

responsibility for distinguishing between the two

carries with it the potential for invidious

discrimination of disfavored subjects”); Bd. of Regents

v. Southworth, 529 U.S. 217, 235 (2000) (directing

remand as to one portion of a forum access policy

because it was “unclear . . . what protection, if any,

there is for viewpoint neutrality” given officials’

discretion to apply it in a discretionary manner ).

These principles apply here. Due to the uncertain

reach of “political,” and the lack of constraints on

expansive and shifting applications of the term to ban

disfavored viewpoints, Section 211B.11(1) is not truly

22

viewpoint neutral. Discovery Network, Inc., 507 U.S.

at 423 n.19. The bottom line is that Section 211B.11(1)

imposes an expansive, substantial, and potentially

discriminatory burden on passive and protected self-

expression, free association, and generalized political

speech!* without sufficient justification. It is therefore

unconstitutionally overbroad.

Ill.

THIS CASE IS NOT APPROPRIATE

FOR STATE COURT CERTIFICATION

The Government's final request seeks

certification of this case to the Minnesota Supreme

Court so that the state court may issue a “definitive

interpretation” of Section 211B.11(1). RB at 57. This

is inappropriate for three reasons. First, this Court

will rarely halt proceedings in a case involving a facial

First Amendment claim for the purpose of allowing

state courts to weigh in because such a delay would

itself chill freedom of speech. Sorrell, 564 U.S. at 563

(citing Zwickler v. Koota, 389 U.S. 241, 252 (1967));

City of Houston v. Hill, 482 U.S. 451, 467 (1987) (citing

Dombrowski v. Pfister, 380 U.S. 479, 489-90 (1965)).

Second, even in non-First Amendment cases,

certification is proper only when a statute is “readily

susceptible” to a narrowing interpretation that might

nullify the constitutional dispute. Here, there is no

obvious, potentially narrowing construction of Section

211B.11(1) that could do so. The Government

‘8 The Government's attempt to minimize the penalties arising

from a violation of its political apparel ban fails to reduce its

chilling effect, as “even minor punishments can chill protected

speech.” Free Speech Coalition, 535 U.S. at 244 (citing Wooley v.

Maynard, 430 U.S. 705 (1977)).

23

certainly has not identified one. See Harman v.

Forssenius, 380 U.S. 528, 536 (1965). Its only

suggestion is that a state court might decide to strike

out the portion of Section 211B.11(1) that extends the

political apparel ban to absentee ballot stations. RB at

57 n.30. Even if this were possible under state law,!®

it would not negate the constitutional controversy

because the question would remain whether the

political apparel ban violates the First Amendment as

applied to polling places on election days.

Finally, the City has never previously raised the

issue of certification or abstention, despite having

opportunities to do so twice in the Eighth Circuit and

in its Opposition to the Petition for Certiorari. Its

“tardy decision to urge abstention is remarkable given

its acquiescence for more than [seven] years to federal

adjudication of the merits and its insistence before the

district court and the panel that the ordinance was

both unambiguous and constitutional on its face.”

Hill, 482 U.S. at 467 n.16; Sup. Ct. R. 15.2. The delay

undercuts the Government's argument, id.; see also,

Mayor of Philadelphia v. Educ. Equality League, 415

U.S. 605, 628 (1974), and in combination with

precedent, confirms this case is appropriately resolved

in this forum.

'® The Government seems to suggest that the state court might

strike the absentee ballot provision on overbreadth grounds. RB

at 57 n.30. But this requires application of Constitutional law,

not state law. As such, the suggestion is not a proper basis for

certification.

24

CONCLUSION

The Court should declare Section 211B.11(1)

facially unconstitutional under the First Amendment

and remand the case to the district court with

directions to enter judgment for Plaintiffs. See 28

U.S.C. § 2106.

DATED: February, 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