Amicus Curiae 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 ALLIANCE, ET AL., PETITIONERS,

U

JOE MANSKY, ET AL.

On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICI CURIAE

AMERICAN CIVIL LIBERTIES UNION AND

AMERICAN CIVIL LIBERTIES UNION

OF MINNESOTA IN SUPPORT OF PETITIONERS

Lisa S. BLATT DAVID D. COLE

ROBERT J. KATERBERG Counsel of Record

AMANDA CLAIRE HOOVER AMERICAN CIVIL LIBERTIES

SALLY L. PEI UNION FOUNDATION

ARNOLD & PORTER 915 15th S NW

KAYE SCHOLER LLP Washi 20005

601 Mass. Ave., NW (212) 2611

Washington, DC 20001 dcole@aclu.org

TRENTON DAVID LEE ROWLAND

ARNOLD & PORTER AMERICAN CIVIL LIBERTIES

KAYE SCHOLER LLP UNION FOUNDATION

700 Louisiana Street 125 Broad Street

Suite 4000 New York, NY 10004

Houston, TX 77002 JOHN B. GORDON

TERESA J. NELSON

AMERICAN CIVIL LIBERTIES

UNION OF MINNESOTA

2300 Myrtle Ave., Ste. 180

St. Paul, MN 55114

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ......00...0........00.00.:000 1

INTRODUCTION AND SUMMARY OF

GEE Sreceinstavsssectntsvtitimrcerminamessnessenmnseeseunvooeremne 2

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THE MINNESOTA STATUTE VIOLATES

THE FIRST AMENDMENT ...........0......cccccececceeeeeeeeeees 4

A. The Minnesota Statute Is a Content-Based

Restriction on Core Political Speech Subject

to Exacting Scrutiny. ................ccccssseseeeeeeeeeereeeeeees 4

B. States Have a Compelling Interest in

Preventing Coercion and Voter Intimidation

at Polling Places on Election Day.......................... 7

C. Narrowly Tailored Prohibitions on Direct

Electioneering at the Polling Place Protect

the Compelling State Interest in Voting,

Without Infringing the Right to Free Speech. ......9

D. The Minnesota Statute Is Overbroad and

IE aiiicntinccccasasnesinceninmnnintnidapnnesersesesens 11

1. The Statute Unnecessarily Penalizes

Vast Amounts of Protected Speech........... 11

2. The Statute Confers Unchecked

Enforcement Discretion and Invites

Viewpoint Discrimination. ........................ 13

3. The Statute Is Impermissibly Vague. ...... 16

4. The Statute Forces Voters to Choose

Between Two Constitutional Rights......... 17

SIT petaepevecsecrcecesssesecnntunaveveseunseuiapmnnsayeetes 19

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Aptheker v. Secretary of State,

Ln 16

Ariz. Free Enter. Club's Freedom Club PAC

v. Bennett,

a sinsntannshoasediate 4

Ariz. State Legislature v. Ariz. Indep.

Redistricting C. 'n.

a cn innree ndascennancsnnagunssinese 2

Austin v. Mich. Chamber of Commerce,

en 4

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

Jews for Jesus, Inc.,

482 U.S. 569 (1987)..............ccccccececsseesseeeneees passim

Bd. of Regents v. Southworth,

si centieemesnbonnielanens 14

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam) ............................. 4

Burson v. Freeman,

STC ae nC passim

Child Evangelism Fellowship of MD, Inc. v.

Montgomery Cty. Pub. Schs.,

457 F.3d 376 (4th Cir. 2006)...........0..........600006 14

Citizens United v. FEC,

I cat ccsnsceasenlionichepasidioamnoin 4,5

City of Houston, Tex. v. Hill,

I ar cnc stnnisecnaaibnnaniaiainemeiatie 13

City of Ladue v. Gilleo,

SE ny Is oc ciccnicnriiceninieerisiiadabattodermiestos 11

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

ee ace aitinincinneitiniicansidadiarnsenxesestions 15

Coates v. City of Cincinnati,

ee I NE Piretesninixnateescticncstaccnsesotentoctscoets 14

Cohen v. California,

ee I ainicetincatnniiensciberiennsnniiaessiamsanaiia 5, 6

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

a ee Pe i aieicicdees taenteiicnnnkcnsstnicrsssisssaties &

Crawford v. Marion Cty. Election Bd..,

Sy Se ee CN icianiciicescaddaiinnicectenastnesstbiertmncinns 2

FCC v. League of Women Voters of Cal.,

ae es Sp abctditemninsnininicatnctncsasentcasnerstcseniets 4

Forsyth Cty. v. Nationalist Movement,

ee ccaccnskenstncttsnvndoissennemnsiovnesastesse 13

Garrity v. New Jersey,

I a seeenneenDeliel 16

Gentile v. State Bar of Nevada,

Se es SE ink arcentsisnensctonsscaricnesastnanonsenions 14

Green v. United States,

On et eee 16

Hill v. Colorado,

I I ia san cienhaetiencneseumpcednaia 2,15

Lefkowitz v. Cunningham,

a cisiusesenabieaiiion 16

Matal v. Tam,

a a scraoiuesnidminnieanaseueeiies 2

NAACP v. Button,

EERIE Nearer ee Oe emo 1,4

NAACP v. Claiborne Hardware Co.,

ERENT LO na 1

North Carolina State Conference of the NAACP v.

McCrory, cert. denied, 137 S. Ct. 1399 (2017),

831 F.3d 204 (4th Cir. 2016).................ccceseeeceeseeees 2

Papachristou v. City of Jacksonville,

ee : Ce iickicaananncepsduciiincnseinensteieiniitceiuedin 14

Reno v. ACLU,

I a spain ceadneintcbabemni 1, 15

Reynolds v. Sims,

a cnnliabocsnisaniniiiog 7

Santa Fe Indep. Sch. Dist. v. Doe,

aia ak alaesensenedntgh 14

Shelby Cty. v. Holder,

acacia aicenasineensnniishieibeis 2

Simmons v. United States,

EP a nee As aro 16

Speiser v. Randall,

Be I iis cnicecsressiaciindeimindninniiiigiendetioes 4

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

I EE 1,6

U.S. Catholic Conference v. Abortion Rights

Mobilization, Inc.,

SEES TR ann em 8

United States v. Playboy Entm’t Group,

ITI cic teesciesacetininsbeouberndeidsoteinnietinanin’ 4

Wesberry v. Sanders,

RT Hs cles nintisigntcedetunsiadaciscnciamainiasiiibin 7

State Cases

Picray v. Sec’y of State,

916 P.2d 324 (Or. Ct. App. 1996)..................... 6, 12

State Statutes

Alaska Stat. § 15.56.01G(a) ....................cscsecercceceeeeeeees i)

Avia. Rov. Stat. § 16-41 1B) ......cccccesccccsoceccscevescesessese 10

Ark. Code Ann. § 7-1-103(a)(9) ...........cccccsecceeeeeeeeeeeees i)

Cs nD Is ina csi esemctnsnnibicnesomsnisndien 9

Call, Rise. Code. § 168 7OG).......cc0cccccccescocrcesccesscosesesoces 9

SL Bs es Oy Se EE aves cncecccscicsncecscssccdeseitiveane 9

Ss RA se I citcccscnescncsccercencstccnnesncsessoien 9

D.C. Code § 1-1001.10(b)(1)(2)(A) 20.00... ceeececceeeeeeeeeeeees 9

Del. Code Ann. Title 15, § 4942................................. 11

Ga: GAD BA, BH RD vcccecccccicsccccnnsccescnnciicccssnsse y

ee IE tiitcrncenssccssscnnesetesacnensentccssnnntiid 9

10 TEL. Comnp. Stat. § G7-41(]) ..0.000crcccccccccceescescecceosesees 9

Ind. Code Ann. § 3-14-3-16(b) ..0............cccccceeeeeeeeeeeees 10

I a seinecsipniiteniiaie i]

Kan. Stat. Ann. § 25-2430(a) ............0ccccsecssereeeeeeeees 10

Ky. Rev. Stat. Ann. § 117.235(3)...............ccccsseeseeeeeeees 9

Ky. Rev. Stat. Ann. § 117.235(3)(c)................:ccceeeeeeees )

Md. El. Ann. Code § 16-206(a) ............c.ccsccccseseeeeeeeeeees 9

Me. Rev. Stat. Ann. Title 21-A, § 682......................... 3]

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I iin isn a ces cneansctinbeepicideabniineineie 15

Re I oii iccnstnimnguicetsenstbinsanetinie 15

Minn. Stat. §§ 609.02, 609.03 ......................s0ceeeeeeeees 15

Miss. Code Ann. § 23-17-56..................::sesssseseeeeeeeseeees 9

Mo. Rev. Stat. § 116.G6B7(18) ...........ccccccsceseescorcessereoeees 9

Mont. Code Amm. § 13-96-311 ..........ccccccocccccsscssccoccccsees 9

N.D. Cent. Code § 16.1-10-03..............ccsccccseeeeseeeeeeees 11

N.B. Rov. Stat. Amm. § GGO:43........ccccccccccccccecesscsccesesees g

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Okla. Stat. Title BB § T-10G.......cccccccccccsssesccoccsessccsseees 10

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es Cs ly I dient canccmeudisicnneidessunsassnneicness 10

Se ns i csinsaeieuusebin iS)

Tex. Elec. Code Ann. § 61.010(a) ..................cccceeeeeeeeee i)

Utah Code Ann. § 20A-3-501 200.0000... ccccecceeeeeeeeeeeeeeeee 9

re NL ia stsesihnonccensnicoscscosensesmscnseposunent 9

Vt. Stat. Amm. Title 17, § BEOB(E).....00cccccccccvesccccccccese 11

Wash. Rev. Code § 29A.84.510.00...........cccccccceceeeeeeeeeee )

Ay Se akititsididnininiscsriensininennctnviaginssinesmessscnenis )

Other Authorities

Electioneer, Merriam-Webster English

Dictionary, https://goo.gl//GW71mC........................ 8

Office of the Minnesota Sec’y of State Steve

Simon, Become an Election Judge,

ORIG A II vccccccccsccccceccescsnccssccccosceceees 13

]

INTEREST OF AMICI CURIAE'

The American Civil Liberties Union is a nation-

wide, nonprofit, nonpartisan organization with more

than 1.6 million members dedicated to the principles

of liberty and equality embodied in the Constitution

and this nation’s civil rights laws. The American

Civil Liberties Union of Minnesota, an affiliate of

the national ACLU with more than 32,000 members

and supporters, is devoted to civil liberties and civil

rights advocacy on behalf of all Minnesotans. This

brief refers to amici collectively as “the ACLU.”

Since its founding in 1920, the ACLU has vigor-

ously defended both free speech and voting rights.

Free speech is inextricably linked to protecting vot-

ing rights, just as voting rights can be important to

enforce protections for speech. Seminal First

Amendment cases including NAACP v. Button, 371

U.S. 415 (1963), and NAACP v. Claiborne Hardware

Co., 458 U.S. 886 (1982), have helped protect organi-

zations that work to expand voting rights and other

civil rights from government interference. Re-

strictions on speech have always been a powerful tool

to suppress voting rights, and First Amendment pro-

tections an important safeguard for activists expand-

ing the franchise.

In furtherance of its interest in defending these

important constitutional rights, the ACLU has ap-

peared before this Court in numerous free speech

‘ No counsel for a party authored this brief in whole or in

part. No one other than amici curiae, their members, or

amici’s counsel made a monetary contribution intended to

fund the preparation or submission of this brief. The par-

ties have provided blanket consent to the filing of amicus

briefs in this case, and copies of the letters of consent are

on file with the Clerk’s Office.

2

cases as both direct counsel and amicus curiae. See,

e.g., Reno v. ACLU, 521 U.S. 844 (1997); Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)

(direct representation); Matal v. Tam, 137 S. Ct. 1744

(2017) (amicus); Hill v. Colorado, 530 U.S. 703 (2000)

(amicus). Likewise, the ACLU has appeared before

the Court as direct counsel in many voting rights

cases, including Husted v. A. Philip Randolph Insti-

tute in the current Term. See also Shelby Cty. v.

Holder, 570 U.S. 529 (2013). And it has appeared as

an amicus in a series of voting rights cases, including

Gill v. Whitford in the current Term. See also Ariz.

State Legislature v. Ariz. Indep. Redistricting

Comm'n, 135 S. Ct. 2652 (2015).

The ACLU has filed legal challenges against

strict voter identification requirements. See, ez.,

Crawford v. Marion Cty. Election Bd., 553 U.S. 181

(2008); North Carolina State Conference of the

NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016), cert.

denied, 137 S. Ct. 1399 (2017). It opposes voter iden-

tification laws that suppress the right to vote. Thus,

it does not support the cause for which some of the

speakers challenging Minnesota’s law advocate. It

nonetheless supports their right to express those

views, and opposes overbroad laws that suppress po-

litical speech, regardless of whether the ACLU ap-

proves or opposes the views expressed.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Political speech lies at the core of the First

Amendment’s protection. It is essential to our repre-

sentative democracy that citizens be able to com-

municate about matters of governance. This Court

has therefore always subjected laws that prevent in-

3

dividuals from communicating about politics to the

most exacting constitutional scrutiny.

The right to vote is also essential to our democra-

cy. The government therefore has significant latitude

to enact narrowly tailored restrictions on particular

forms of speech at the polling place that pose a risk

of direct intimidation and harassment, and thereby

threaten the integrity of the franchise. Many states

have enacted anti-electioneering statutes, which for-

bid direct advocacy at the polling place for a candi-

date or ballot initiative. But those statutes notably

do not bar more general expression about political or

social concerns.

Minnesota, along with a handful of other states,

has gone much further, by broadly prohibiting voters

from engaging in any form of “political” expression at

the polling place on election day. Such content-based

attempts to create a “politics-free zone” at the polling

place are subject to strict scrutiny and fail that test.

These laws are far broader than necessary to address

the state’s compelling interest in protecting the right

to vote. The American electorate is surely hardy

enough to vote their conscience even if they notice

their fellow citizens wearing, say, a Black Lives Mat-

ter or AFL-CIO t-shirt, a Women’s March hat, or a

pro-life or peace-sign button.

Minnesota’s law against political speech is also

hopelessly and fatally vague. It bestows massive, un-

checked discretion on election judges and poll work-

ers to decide on the spot what is and is not “political,”

forcing voters into a Hobson’s choice between two

constitutional rights: voting or speaking. This Court

should reverse.

4

ARGUMENT

THE MINNESOTA STATUTE VIOLATES THE

FIRST AMENDMENT

A. The Minnesota Statute Is a Content-Based

Restriction on Core Political Speech Subject

to Exacting Scrutiny.

The protection of political speech is at the core of

this Court’s First Amendment jurisprudence. Above

all else, the First Amendment safeguards the ability

to debate issues pertinent to our nation’s governance.

“|A] major purpose of [the First] Amendment was to

protect the free discussion of governmental af-

fairs. ... For speech concerning public affairs is more

than self-expression; it is the essence of self-

government.” Burson v. Freeman, 504 U.S. 191, 196

(1992); accord, e.g., FCC v. League of Women Voters of

Cal., 468 U.S. 364, 375-76 (1984); Buckley v. Valeo,

424 U.S. 1, 14-15 (1976) (per curiam).

Because core political speech is “fundamental to

our constitutional system,” exacting scrutiny applies

to government restrictions on such speech. Austin v.

Mich. Chamber of Commerce, 494 U.S. 652, 666

(1990), overruled on other grounds by Citizens United

v. FEC, 558 U.S. 310 (2010). Restrictions on speech

based on its political content must be “narrowly tai-

lored” to serve a “compelling governmental interest.”

Id.; see also, eg., Burson, 504 U.S. 198; NAACP v.

Button, 371 U.S. 415, 438 (1963); Speiser v. Randall,

357 U.S. 513, 529 (1958). The narrow-tailoring prong

requires that “a State must do more than assert a

compelling state interest—it must demonstrate that

its law is necessary to serve the asserted interest.”

Burson, 504 U.S. at 199. “If a less restrictive alterna-

tive would serve the Government’s purpose, the legis-

lature must use that alternative.” United States v.

5

Playboy Entm’t Group, 529 U.S. 803, 813 (2000). Few

content-based restrictions are so essential as to be

“necessary to serve the asserted [compelling] inter-

est.” Burson, 504 U.S. at 199. As a consequence, this

Court has “readily acknowledgeld) that a law rarely

survives such scrutiny.” Jd. at 200.

Where a sovereign seeks to regulate core political

speech—indeed, where it imposes any content-based

restrictions on speech—its regulation will be subject

to strict scrutiny. The test for the regulation of core

political speech, and for most content-based re-

strictions, remains largely unchanged over decades of

jurisprudence. See, e.g., Ariz. Free Enter. Club’s Free-

dom Club PAC v. Bennett, 564 U.S. 721, 734 (2011);

Citizens United, 558 U.S. at 339—40.

Minnesota’s polling-place speech restriction is

content-based because it proscribes speech expressly

because of its “political” content. Furthermore, it

specifically identifies content that lies at the core of

the First Amendment: political expression. The stat-

ute is not limited to advocacy of a particular candi-

date or issue on the ballot on that election day. Ra-

ther, the statute broadly calls for election judges to

stop individuals from wearing apparel with “political

badges,” “political buttons,” or “political insignia” in

polling places. Minn. Stat. § 211B.11. As Minnesota

interprets the statute, the word “political” includes

any message considered to be “[i]ssue oriented mate-

rial designed to influence or impact voting” or

“|mjaterial promoting a group with recognizable po-

litical views.” Pet. App. I-2. Minnesota thus construes

the statute, for example, to bar “Please ID Me” de-

signs, regardless of whether any voter identification

issue is on the ballot. See id. Such messages bear on

some of the most hotly contested issues in our socie-

ty. By its plain language, the statute targets protect-

6

ed expression based on its political content while

leaving non-political expression untouched. There-

fore, the law is subject to strict scrutiny.

The court below bypassed the exacting standards

of strict scrutiny by labeling a polling place a non-

public forum, where regulations on speech face less

searching review. Pet. App. A-5. But forum analysis is

not useful for this case because individuals going to

vote do not seek access to government property as a

platform to engage in private speech. Rather, a poll-

ing place exists for voting; the challengers here simp-

ly want to express themselves in a non-disruptive

manner while exercising thei: constitutional right to

vote, in the only place where they are permitted to do

so. A prohibition on doing so does not trigger forum

analysis. Thus, this Court did not consider forum

analysis necessary in Cohen v. California, 403 U.S. 15

(1971). Cohen’s conviction for wearing a jacket pro-

claiming an anti-war message in a courthouse was

deemed invalid because it prohibited speech based on

its content, regardless of whether the courthouse

might be considered a public or non-public forum.

Regardless, the Minnesota statute is unconstitu-

tional under any standard. The flaws that doom the

statute under strict scrutiny also render the statute

unreasonable, viewpoint-discriminatory, and there-

fore unconstitutional even if viewed as a restriction

on speech in a non-public forum. See Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,

806 (1985). The government has an interest in ensur-

ing that voters attempting to exercise their constitu-

tional rights at the polling place are not subject to

coercion or intimidation. See infra, Part B. But the

government lacks any valid interest, much less a

reasonable or compelling one, in cleansing the polling

place of all political expression. The blanket ban on

7

political expression here is “facially unconstitutional

... regardless of the proper standard.” Bd. of Airport

Comm'rs of City of Los Angeles v. Jews for Jesus, Inc.,

482 U.S. 569, 573 (1987). Prohibiting passive dis-

plays of political opinions goes far beyond what is

reasonable to protect other voters from coercion or

intimidation.

Nor does the fact that the Minnesota statute

regulates political messages in the form of words,

symbols, or pictures on apparel rather than spoken

communication weaken the First Amendment’s pro-

tection. The First Amendment fully protects individ-

uals’ rights to express their political views through

clothing. See, e.g., id. at 576; Cohen, 403 U.S. at 18;

Tinker, 393 U.S. at 508, 514; Picray v. Sec’y of State,

916 P.2d 324, 329 n.12 (Or. Ct. App. 1996) (describing

the long historical pedigree of political clothing and

paraphernalia). As discussed below, the state’s inter-

est in regulating expression through words, symbols,

or pictures on clothing is, if anything, /ess substantial

because such passive, “nondisruptive” displays pose

no risk of the sort of intimidation or harassment that

may justify limited restrictions on other forms of

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

B. States Have a Compelling Interest in Pre-

venting Coercion and Voter Intimidation at

Polling Places on Election Day.

While content-based restrictions on political

speech are subject to strict scrutiny, states still have

considerable leeway to adopt limited and narrowly

tailored restrictions on speech at the polling place on

election day.

States have a compelling interest in preserving

the integrity of the election process by preventing in-

timidation and fraud at polling places. See Burson,

8

504 U.S. at 199. This interest is compelling because

“the ‘right to vote freely for the candidate of one’s

choice is of the essence of a democratic society.” Jd.

(quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)).

“(Nlo right is more precious in a free country than

that of having a voice in the election of those who

make the laws under which, as good citizens, we

must live.” Jd. (quoting Wesberry v. Sanders, 376 U.S.

1, 17 (1964)).

This compelling interest includes protecting the

rights of citizens to vote freely for the candidates of

their choice without being coerced or subjected to in-

timidating influences while they are at the polling

place. See id. at 200—06 (examining the history of

election regulation and concluding that it “reveals a

persistent battle against two evils: voter intimidation

and election fraud”). “The Court thus has upheld

generally applicable and evenhanded restrictions

that protect the integrity and reliability of the elec-

toral process itself.” Id. at 199.

For these reasons, the polling place on election

day is one of the “rarle|” contexts where certain con-

tent-based restrictions on speech may pass muster.

Id. at 200. But this does not give states license to

write all-encompassing laws that silence or punish

more speech than necessary. After all, any content-

based law that restrains polling-place speech must

be “necessary to serve the asserted interest.” Jd. at

199. No matter the strength of the state interest as-

serted, a law that sweeps more broadly than neces-

sary in its curtailment of core political speech cannot

stand in our Republic.

9

C. Narrowly Tailored Prohibitions on Direct

Electioneering at the Polling Place Protect

the Compelling State Interest in Voting,

Without Infringing the Right to Free

Speech.

Most states have effectively protected the right to

vote without intimidation, coercion, and harassment

through laws that restrict only the specific forms of

speech that actually give rise to those concerns: ad-

vocacy of a particular candidate or issue on the ballot

on that election day, often referred to as “electioneer-

ing.” See, e.g., Electioneer, Merriam-Webster English

Dictionary, https://goo.g/GW71mC (last visited Jan.

12, 2018) (defining “electioneer” as “to take an active

part in an election; specifically: to work for the elec-

tion of a candidate or party”); U.S. Catholic Confer-

ence v. Abortion Rights Mobilization, Inc., 487 U.S. 72,

74, 75 (1988) (characterizing prohibition on churches

from “participatling] in ... any political campaign on

behalf of (or in opposition to) any candidate for public

office” as an “anti-electioneering provision”). It is this

type of statute that this Court upheld under strict

scrutiny in Burson.

The Tennessee statute at issue in Burson prohib-

ited “the display of campaign posters, signs or other

campaign materials, distribution of campaign mate-

rials, and solicitation of votes for or against any per-

son or political party or position ....” Burson, 504

U.S. at 193-94. Statutes appropriately tailored in

this way do not violate the First Amendment because

“some restricted zone is necessary in order to serve

the States’ compelling interests in preventing voter

intimidation and election fraud.” Jd. at 206.

Most states have adopted tailored anti-

electioneering laws similar to the law upheld in Bur-

10

son. For example, California’s election code prohibits

electioneering, which is defined as “the visible dis-

play or audible dissemination of information that ad-

vocates for or against any candidate or measure on

the ballot,” within 100 feet of a polling place. Cal.

Elec. Code. § 18370(d); id. § 319.5. Similarly, Colora-

do’s election code defines electioneering to include

“campaigning for or against any candidate who is on

the ballot or any ballot issue or ballot question that

is on the ballot,” Colo. Rev. Stat. § 1-13-714(1), and

Kentucky’s statute prohibits “the solicitation of votes

for or against any bona fide candidate or ballot ques-

tion” in a manner that “expressly advocates” a par-

ticular outcome, Ky. Rev. Stat. Ann. § 117.235(3)(c).

Most other states that restrict electioneering at or

around the polling place define it in a similar, nar-

rowly tailored fashion. See Alaska Stat.

§ 15.56.016(a); Conn. Gen. Stat. § 9-236(a); Ga. Code

Ann. § 21-2-414(a); Ky. Rev. Stat. Ann. § 117.235(3);

Me. Rev. Stat. Ann. tit. 21-A, § 682; Miss. Code Ann.

§ 23-17-55; Mont. Code Ann. § 13-35-211; N.H. Rev.

Stat. Ann. § 659:43; R.I. Gen. Laws § 17-19-49; Or.

Rev. Stat. § 260.695; Tex. Elec. Code Ann. § 61.010(a);

Utah Code Ann. § 20A-3-501; Va. Code Ann. § 24.2-

604; Wash. Rev. Code § 29A.84.510; Wis. Stat. § 12-

03(2).?

* In addition, some states prohibit “electioneering” with-

out defining the term, but there is no reason to think

these states would construe the term, in the face of the

canon of constitutional avoidance, as covering more

speech than its customary and accepted meaning. See

Ark. Code Ann. § 7-1-103(aX9); D.C. Code § 1-

1001.10(b) 1 2)A); Idaho Code § 18-2318(1); 10 Ill. Comp.

Stat. § 5/7-41(c); lowa Code § 39A.4(1); Md. El. Ann. Code

§ 16-206(a); Mo. Rev. Stat. § 115.637(18); Neb. Rev. Stat.

§ 32-1524; N.M. Stat. Ann. § 3-8-77; N.Y. Elec. Law § 8-

11

Tailored restrictions on electioneering at the poll-

ing place advance the compelling interest in main-

taining electoral integrity without prohibiting more

speech than necessary. However, a state may not,

consistent with the First Amendment, seek to silence

or punish all political speech in the name of prevent-

ing fraud or undue influence, as the Minnesota stat-

ute seeks to do.

D. The Minnesota Statute Is Overbroad and

Unreasonable.

The Minnesota statute violates the First

Amendment. States may forbid electioneering activi-

ty in order to prevent voter intimidation and fraud.

But the prohibitions of the Minnesota statute far ex-

ceed what is necessary or reasonable to serve those

interests. The government may be able to create a

“campaign-free zone” at the polling place, Burson,

504 U.S. at 193, but it cannot create a “politics-free

zone.”

1. The Statute Unnecessarily Penalizes Vast

Amounts of Protected Speech.

Rather than merely regulating speech that aims

at disruption, active solicitation, or engagement of

other voters on ballot issues or candidates, Minneso-

ta has banned an entire category of expression, tar-

geting any passive display of “political badges, politi-

cal buttons, or other political insignia.” Minn. Stat.

104(1); Okla. Stat. tit. 26 § 7-108. Other states define

“electioneering” only slightly more broadly, to include ex-

pressing support for or opposition to a candidate, ballot

question, or political party on the ballot. See, e.g., Ariz.

Rev. Stat. § 16-411(H); Ind. Code Ann. § 3-14-3-16(b);

Kan. Stat. Ann. § 25-2430(a); Nev. Rev. Stat. § 293.361;

25 Pa. Cons. Stat. § 3060.

12

§ 211B.11. The First Amendment does not tolerate

this heavy-handed approach. See Jews for Jesus, 482

U.S. at 575-76 (finding unconstitutional a resolution

purporting to create a “First Amendment Free Zone”

at Los Angeles International Airport); City of Ladue

v. Gilleo, 512 U.S. 43, 54-55 (1994) (striking down

law banning most residential signs).

The Minnesota statute’s overbreadth is all the

more harmful because it targets a form of political

speech—wearing or displaying political or “issue ori-

ented” clothing or symbols—that is by its very nature

“non-disruptive” and non-obtrusive. Jews for Jesus,

482 U.S. at 576; cf Burson, 504 U.S. at 200—04 (ex-

plaining that anti-electioneering grew out of histori-

cal experience in which voters approaching the polls

had to walk a gauntlet of peddlers and cajolers).

Unfortunately, Minnesota is not alone in at-

tempting to regulate polling-place expression more

extensively than the First Amendment and this

Court’s precedents permit. While most states draw

the line at electioneering, see supra Part C, a few

states follow Minnesota in imposing a sweeping ban

on “political” expression. See, e.g., Del. Code Ann. tit.

15, § 4942 (banning “political discussion of issues,

candidates or partisan topics, the wearing of any but-

ton, banner or other object referring to issues, candi-

dates or partisan topics”); N.D. Cent. Code § 16.1-10-

03 (providing that no “political badge, button, or in-

signia may be worn within that same area while a

polling place is open for voting”); Vt. Stat. Ann. tit.

17, § 2508(a) (providing that “no campaign literature,

stickers, buttons, name stamps, information on write-

in candidates, or other political materials are dis-

played, placed, handed out, or allowed to remain”).

13

The Minnesota statute and others like it stray

far beyond the limited latitude that states have un-

der Burson to regulate in this area. A state’s legiti-

mate interest in “preventing voter intimidation and

election fraud,” Burson, 504 U.S. at 206, cannot justi-

fy blanket suppression of all expression at the polling

place that may be deemed to relate in some way to

politics or political issues, regardless of whether it is

tied to any issue or individual on the ballot. Just as

the restriction invalidated in Jews for Jesus went far

beyond “regulatling] expressive activity ... that

might create problems such as congestion or the dis-

ruption of the activities of those who use LAX,” 482

U.S. at 574, the Minnesota statute goes far beyond

regulating speech that could coerce or intimidate

voters or undermine the integrity of the election.

“The silent expression of political opinion is not coer-

cive.” Picray, 916 P.2d at 329. Minnesota need not

fear that Americans exercising their right to vote will

be chilled by seeing that a neighbor has chosen to

sport an Occupy Wall Street ball cap or a Moral Ma-

jority lapel button.

2. The Statute Confers Unchecked

Enforcement Discretion and _ Invites

Viewpoint Discrimination.

The Minnesota statute is particularly pernicious

because it confers unbridled discretion on poll work-

ers, inviting arbitrary enforcement and leading to in-

evitable viewpoint discrimination. The Election Day

Policy specifically states that “lellection judges have

the authority to decide what is ‘political.” Pet. App.

I-1. This delegation of authority, combined with the

breadth and vagueness of the terms “political” and

“issue oriented,” grants sweeping and final discretion

to poll workers whose own viewpoints will inevitably

14

influence what they see as “political” or not. A phrase

that one person may consider to be innocuous or non-

political—like “#MeToo”—may appear to another to

be an overtly political statement. The same goes for

someone wearing a Colin Kaepernick jersey or t-

shirts depicting pictures of Andrew Jackson, Bob

Dylan, Beyoncé, or the official seal of the U.S. Cham-

ber of Commerce.

Notably, poll workers are not typically veteran

government employees with extensive training in the

First Amendment. Minnesota invites its private citi-

zens to become “temporary” poll workers for a day.

See Office of the Minnesota Sec’y of State Steve Si-

mon, Become an Election Judge,

https://goo.g/E2bKmH (last visited Jan. 12, 2018).

Even “16 and 17-year-old students can work as elec-

tion judge trainees” and “will be assigned the same

duties as other judges, with the exception of tasks

requiring party affiliation.” Jd. Yet Minnesota depu-

tizes such temporary non-specialists with the im-

mense responsibility of determining what messages

conveyed by their fellow citizens’ clothing are im-

permissibly “political.” Pet. App. I-1.

A law that, in regulating expressive activity, “con-

fers on police a virtually unrestrained power to ar-

rest and charge persons with a violation . . . is uncon-

stitutional because the opportunity for abuse, espe-

cially where a statute has received a virtually open-

ended interpretation, is self-evident.” Jews for Jesus,

482 US. at 576 (alteration in original). Such laws

open the door to selective enforcement based on the

content of the speech. City of Houston, Tex. v. Hill,

482 US. 451, 465 & n.15 (1987). This Court has “re-

peatedly invalidated laws that provide the police

with unfettered discretion to arrest individuals for

15

words or conduct that annoy or offend them.” Jd. (cit-

ing numerous cases).

The dangers of excessive discretion are all the

more acute here, where selective enforcement invites

invidious viewpoint discrimination. “A government

regulation that allows arbitrary application . . . has

the potential for becoming a means of suppressing a

particular point of view.” Forsyth Cty. v. Nationalist

Movement, 505 U.S. 123, 130 (1992). For this reason,

“viewpoint neutrality requires not just that a gov-

ernment refrain from explicit viewpoint discrimina-

tion, but also that it provide adequate safeguards to

protect against the improper exclusion of view-

points.” Child Evangelism Fellowship of MD, Inc. v.

Montgomery Cty. Pub. Schs., 457 F.3d 376 (4th Cir.

2006) (citing Bd. of Regents v. Southworth, 529 U.S.

217, 235 (2000) and Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 304—05 (2000)).

Neither the Minnesota statute’s text nor the

state’s Election Day Policy contains safeguards

against selective enforcement. The state attempts to

create a facade of neutrality by drawing from both

ends of the political spectrum when giving examples

of prohibited expression. See Pet. App. I-2 (listing

“the Tea Party, MoveOn.org, and so on”). But isolated

examples cannot substitute for proper tailoring of

speech regulations in the first instance. Poll workers

are human beings with their own political views and

perspectives. Even the most well-intentioned poll

workers cannot be expected to put their perspective

entirely aside merely because they are advised that

the restriction covers messages from both ends of the

political spectrum.

The Minnesota statute and the Election Day Pol-

icy create the risk that unpopular or unorthodox

16

opinions or beliefs will be deemed “political” and un-

fairly excluded from the polling place. As the Court

has warned on multiple occasions, imprecise, stand-

ardless statutory language “furnishes a convenient

tool for harsh and discriminatory enforcement by lo-

cal prosecuting officials, against particular groups

deemed to merit their displeasure.” Papachristou v.

City of Jacksonville, 405 U.S. 156, 170 (1972). Such

language is “an obvious invitation to discriminatory

enforcement against those whose ... ideas, .. . life-

style, or .. . physical appearance [are] resented by

the majority of their fellow citizens.” Coates v. City of

Cincinnati, 402 U.S. 611, 616 (1971); accord Gentile v.

State Bar of Nevada, 501 U.S. 1030, 1051 (1991)

(“imprecise” regulation of speech raises specter of

“discriminatory enforcement”). The risk of content

and viewpoi>t discrimination is “at its zenith” when,

as here, “the determination of who may speak and

who may not is left to the unbridled discretion of a

government official.” City of Lakewood v. Plain Deal-

er Publ’g Co., 486 U.S. 750, 763 (1988).

3. The Statute Is Impermissibly Vague.

The Minnesota statute’s imprecise language not

only heightens the threat it poses to voters’ First

Amendment rights; it also raises serious due process

concerns. The statute both “authorizes or even en-

courages arbitrary and discriminatory enforcement”

and “fails to provide people of ordinary intelligence a

reasonable opportunity to understand what conduct

it prohibits.” Hill, 530 U.S. at 732. In the First

Amendment context, this Court has shown particular

concern for the potential chilling effects of vague le-

gal prohibitions. This Court has struck down statutes

that are so vague as to create confusion or uncertain-

ty for the average person. See Reno, 521 U.S. at 871

17

(holding vagueness of words “indecent” and “patently

offensive” will create uncertainty among speakers).

At a time of heated political debate on many

fronts in our society, it is inconceivable that a voter

could be expected to discern from the Minnesota

statute or the Election Day Policy whether a particu-

lar message on his or her clothing is banned (or

might be selectively banned by a poll worker). Min-

nesota treats the violation of Section 211B.11 as a

petty misdemeanor carrying a fine of up to $300. See

Minn. Stat. §§ 609.02, 609.03. Violations may also be

subject to civil penalties. See Minn. Stat. §§ 211B.32,

211B.35. Some voters who have unwittingly chosen

apparel that runs afoul of the Election Day Policy

may elect not to cast a ballot rather than enter a

polling place and risk these sanctions.

4. The Statute Forces Voters to Choose

Between Two Constitutional Rights.

Minnesota’s statute forces voters into a Hobson's

choice: they must sacrifice their First Amendment

right to free expression in order to secure their con-

stitutional right to vote. Voters who know or fear

their expressive apparel will be swept up in Minne-

sota’s ban may opt not to wear it to ensure they are

able to vote on election day—leaving their freedom of

speech at the door. In other cases, voters who neglect

to leave their expressive apparel at home may not be

able to exercise the right to vote. While it is Minneso-

ta’s policy to allow voters who wear banned apparel!

to cast their ballot (and be fined later for their choice

of Election Day dress), Petitioners’ complaint alleged

at least one instance of a voter who was unable to

vote, suggesting poll workers do not reliably obey

this policy. J.A. 78. Moreover, because the statute

provides for a future (and significant) fine, it is also

18

likely that voters who inadvertently violated the pol-

icy on Election Day will leave their polling place

without casting a ballot rather than risk being pun-

ished.

Forcing a citizen to choose between her funda-

mental rights to speak or vote is impermissible. This

Court has long found it “intolerable that one consti-

tutional right should have to be surrendered in order

to assert another.” Simmons v. United States, 390

U.S. 377, 394 (1968); see also Garrity v. New Jersey,

385 U.S. 493, 497 (1967); Green v. United States, 355

U.S. 184, 191-92 (1957). Nowhere is this principle

more sacrosanct than in the First Amendment con-

text. See Lefkowitz v. Cunningham, 431 U.S. 801

(1997) (holding it improper to force choice between

invoking Fifth Amendment right against self-

incrimination and First Amendment associational

right to hold public office); Aptheker v. Secretary of

State, 378 U.S. 500 (1964) (improper to force choice

between freedom to travel and freedom of associa-

tion). Our Constitution protects both freedom of

speech and the right to vote. Minnesota’s law forcing

a choice between the two should be invalidated.

19

CONCLUSION

The decision below should be reversed.

Suite 4000

Houston, TX 77002

Respectfully Submitted,

915 15th NW

W: 20005

(212) 11

dcole@aclu.org

New York, NY 10004

JOHN B. GORDON

TERESA J. NELSON

AMERICAN CIVIL LIBERTIES

UNION OF MINNESOTA

2300 M Ave., Ste. 180

St. Paul, MN 55114

Counsel for Amici Curiae

January 12, 2018