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

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No. 16-1435

IN THE

Supreme Court of the Anited States

MINNESOTA VOTERS ALLIANCE, ET AL..,

Petitioners,

JOE MANSKY, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF FOR CATO INSTITUTE,

RUTHERFORD INSTITUTE,

REASON FOUNDATION, AND

INDIVIDUAL RIGHTS FOUNDATION AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

JOHN W. WHITEHEAD ILYA SHAPIRO

DOUGLAS R. MCKUSICK Counsel of Record

Rutherford Institute TREVOR BURRUS

923 Gardens Boulevard REILLY STEPHENS

Charlottesville,VA 22901 Cato Institute

(434) 978-3888 1000 Mass. Ave. N.W.

johnw@rutherford.org Washington, D.C. 20001

douglasm@rutherford.org (202) 842-0200

ishapiro@cato.org

tburrus@cato.org

January 11, 2018 rstephens@cato.org

Additional counsel listed on inside cover

EEE eee

MANUEL S. KLAUSNER

Law Offices of Manuel S.

Klausner

One Bunker Hill Building

601 W. Fifth St., Ste. 800

Los Angeles, CA 90071

(213) 617-0414

mklausner@mac.com

QUESTION PRESENTED

Whether Minn. Stat. § 211B.11, which prohibits all

“political” garb at the polling place, is facially uncon-

stitutional because no conceivable governmental inter-

est could justify such an absolute ban on this most

highly protected form of speech.

TABLE OF CONTENTS

QUESTION PRESENTED ....................00cccccsseeseeeeceeees i

TABLE OF AUTHORITIES ................0.0.sseccccsseessseees iv

INTEREST OF THE AMICI CURIAE........................ l

INTRODUCTION AND SUMMARY OF

IIE sncrccctascusutncinterdarstiindnasiicienssnmccmnesieeatie 2

I tndiarininnstrerntcieeinancentnmniemmnmemeiin 3

1. ACOMPLETE BAN ON POLITICAL

EXPRESSION WARRANTS STRICT

SCRUTINY, REGARDLESS OF THE

Il. MINNESOTA’S BAN ON POLITICAL

EXPRESSION CANNOT SURVIVE STRICT

EASES ES 8

A. Minnesota Has Not Presented a

Compelling State Interest for Banning All

Polition! TmpeGestot ..........0cccccecssssscessseseseseeees 8

B. Minnesota’s Ban on Political Expression Is

Not Narrowly Tailored to Achieve Any

Government Purpose ...................c.cceceeeeeeeeees 10

1. The ban is overinclusive because it

disallows even innocuous political

eS a ee 11

2. The ban is fatally underinclusive.............. 12

IIL. THE FIRST AMENDMENT PROTECTS THE

RIGHT OF SPEAKERS TO INFLUENCE

VOTERS, SO CREATING AN “INFLUENCE-

FREE” POLLING PLACE IS NOT A

COMPELLING STATE INTEREST ................. 14

iil

A. The Vague Invocation of “Undue

Influence” Cannot Save Minnesota's Ban ... 15

B. Blanket Bans on Political Speech May Be

Justified to Prevent Actual Intimidation,

Confusion, and Chaos—Not Influence......... 18

IV. THE FIRST AMENDMENT PROTECTS

SELF-EXPRESSION QUA SELF-

EXPRESSION, AND POLITICAL APPAREL

IS A FORM OF SELF-EXPRESSION. ............... 19

SIT certtjeacsccuincccrsiiecnansitousenntaqnsnenscsennsesase 22

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Celebrezze, 460 U.S. 780 (1983) ............ 16

Ashcroft v. ACLU, 542 U.S. 656 (2004)......000.000000..... 11

Austin v. Michigan Chamber of Commerce,

re Oe Ce i cnstcnidcnccinsicctiecindtndennsntsichesnsonces 15, 17

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

Jews for Jesus, Inc., 482 U.S. 569 (1987).............. 12

Brown v. Entm't Merchants Ass'n,

i a sceniblibenamenie 12

Buckley v. Valeo, 424 U.S. 1 (1976) ........000000cccccccce eee 14

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

Citizens United v. FEC, 558 U.S. 310 (2010).... passim

City of Ladue v. Gilleo, 512 U.S. 43 (1994)............. 5, 6

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ..7

McIntyre v. Ohio Elections Comm'n,

8 ERS AES SOD NOL EOE 7

Members of City Council v. Taxpayers for Vincent,

REREAD oe O ee I a 4

Meyer v. Grant, 486 U.S. 414 (1988) .....0.0000.0000000.. 6, 14

Mills v. Alabama, 384 U.S. 214 (1966) ...........0.000000.. 19

Minnesota Majority v. Mansky,

849 F.3d 749 (8th Cir. 2017) ..000........ccccccccceeee 14, 15

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

ee ee cintesicsiesedetiensinsinccinceticiageiniinasepacsanienanen 10

Pleasant Grove City, Utah v. Summum,

I a tindiatuninoninanes

Procunier v. Martinez, 416 U.S. 396 (1974).............. 20

R.A.V. v. City of St. Paul, Minn.,

ID GT Mi oinrcecccnsinsscicuntindnoneiantencnsassceneness 6

Republican Party of Minnesota v. White,

I TTI inssitedicintinteecitinertnicnpinanbetonibdinataddaossotzevess 8

Roth v. United States, 354 U.S. 476 (1957)................. 7

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

SE UB, GE CI cccccvccsnccccccccssccecesescosccesssesees 19, 20

U.S. Postal Service v. Greenburgh Civic Ass’ns.,

Bre ee ccininiicinicicntcndenssnaniinsintinaniucccessdecss 4

United States v. Alvarez, 567 U.S. 709 (2012).......... 11

United States v. CIO, 335 U.S. 106 (1948)................ 16

Statutes

Ps Hs OP IIB cnscscccscesesdestevcsansseussonnees 10,11, 13

Other Authorities

Alexander Mieklejohn, Political Freedom (1960)..... 15

Alexander Mieklejohn, The First Amendment Is an

Absolute, 1961 Sup Ct. Rev. 245 (1961). ............... 15

C. Edwin Baker, The Scope of the First Amendment,

25 UCLA L. Rev. 964 (1978) ...................... 18, 19, 21

Geoffrey R. Stone, Content-Neutral Distinctions,

54 U. Chi. L. Rev. 46 (1987)...............ccccccceceeeeeeeeeees 5

James Nord, Scattered Polling-Place Disruptions

and Problems Reported, MinnPost (Nov. 6, 2012),

SUERTE citisucccsuccccsncscesnseccacininebesnsiusesioss 18

Jocelyn Benson, When Poll-Watching Crosses the

Line, Politico (Aug. 25, 2016),

Dette PGRIEL COTE IIO OE cc vccccccccesesssccccccecececscesecoeces 18

John Stuart Mill, On Liberty (1859) ........................ 17

Lee C. Bollinger, The Tolerant Society: A Response

to Critics, 90 Colum. L. Rev. 979 (1990)................ 21

P.J. O'Rourke, Don’t Vote: It Just Encourages the

BNI sinctnitesiiritencerieisitinnshninicenadiaianesitonsseses 13

Thomas I. Emerson, Toward a General Theory of

the First Amendment, 72 Yale L.J. 877 (1963)...... 21

INTEREST OF THE AMICI CURIAE'

The Cato Institute is a non-partisan public policy

research foundation dedicated to advancing the prin-

ciples of individual liberty, free markets, and limited

government. Cato’s Robert A. Levy Center for Consti-

tutional Studies was established in 1989 to help re-

store the principles of constitutional government that

are the foundation of liberty. To those ends, Cato holds

conferences and publishes books, studies, and the an-

nual Cato Supreme Court Review.

The Rutherford Institute is an international

nonprofit civil liberties organization headquartered in

Charlottesville, Virginia. Founded in 1982 by its pres-

ident, John W. Whitehead, the Institute specializes in

providing legal representation without charge to indi-

viduals whose civil liberties are threatened or in-

fringed and in educating the public about constitu-

tional and human rights issues.

Reason Foundation is a nonpartisan 501(c)(3) or-

ganization. Reason’s mission is to promote liberty by

developing, applying, and communicating libertarian

principles and policies, including free markets, indi-

vidual liberty, and the rule of law. Founded in 1978,

Reason publishes Reason magazine and commentary

on its website, reason.com, and issues policy research

reports. Reason’s personnel consult with public offi-

cials on the national, state, and local level. Reason se-

lectively participates as amicus curiae in cases raising

significant constitutional issues. This case involves a

! Rule 37 statement: No party's counsel authored any part of

this brief and no person other than amici funded its preparation

and submission. Both parties filed blanket consent.

serious threat to freedom of speech, and therefore con-

travenes Reason’s avowed purpose to advance “Free

Minds and Free Markets.”

The Individual Rights Foundation (“IRF”) is

the legal arm of the David Horowitz Freedom Center

(“DHFC”), a nonprofit 501(c)(3) organization (formerly

the Center for the Study of Popular Culture). DHFC’s

mission is to promote the core principles of free socie-

ties—and to defend America’s free society—by educat-

ing the public to preserve traditional constitutional

values of individual freedom, the rule of l.w, and lim-

ited government. IRF opposes attempts from any-

where along the political spectrum to undermine free-

dom of speech and equality of rights, and it combats

overreaching governmental activity that impairs indi-

vidual rights. In support of this mission, IRF litigates

and participates as amicus in cases that raise signifi-

cant First Amendment speech and issues.

This case concerns amici because the fundamental

constitutional guarantee of free speech protects voters’

rights to express themselves in the polling place

through non-disruptive political speech. Minnesota's

absolute ban on any form of political speech at the polls

threatens First Amendment freedoms.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Political speech, especially speech critical of the

government, individual politicians, and political ideas,

is essential to the continued viability of the democratic

process. That’s why this Court’s First Amendment ju-

risprudence gives special protection to core political

speech. Yet Minnesota has specifically targeted such

speech, flatly banning all “political” badges, buttons,

and insignia within every polling place in the state.

This targeting alone requires strict judicial scrutiny.

Minnesota’s absolute ban on political insignia fails

that judicial review. Whatever interest the state may

have in preventing confusion or improper influence is

not furthered by a complete ban on political speech.

Moreover, without qualification, the idea of political

speech as an “improper influence” is foreign to the

First Amendment. Minnesota’s law is thus not nar-

rowly tailored to any compelling state interest. Fur-

ther, the ban on all political speech is facially over-

broad. It places enormous discretion in unaccountable

election judges to define “political” speech and thus

chills the personal expression of every voter. This

Court should ensure that the Eighth Circuit’s lax pro-

tection of core political speech does not stand.

ARGUMENT

I. A COMPLETE BAN ON POLITICAL EXPRES-

SION WARRANTS STRICT SCRUTINY, RE-

GARDLESS OF THE FORUM

When the government restricts expressive activity

on its own property, this Court uses a difficult-to-apply

set of tools often referred to as “forum analysis.” Fo-

rum analysis categorizes the physical location where

the expressive activity takes place as either a “tradi-

tional public forum,” a “designated public forum,” a

“limited public forum,” or a “nonpublic forum.” Pleas-

ant Grove City, Utah v. Summum, 555 U.S. 460, 467—

70 (2009). The degree of protection afforded to speech

varies depending on the category of the forum. /d.

Rigidly applying this forum analysis, the Eighth

Circuit held that the polling place is a nonpublic forum

and that strict scrutiny does not apply. Pet. App. A-5;

D-7—8. But such a formulaic application of the forum

analysis framework can sometimes fail to adequately

protect important First Amendment interests. As this

Court has acknowledged, looking only at the location

covered by a speech ban may fail to consider the extent

of the speech interests at stake.

In Members of City Council v. Taxpayers for Vin-

cent, 466 U.S. 789, 815 n.32 (1984), this Court warned

of the “limited utility” of focusing only “on whether the

tangible property [where speech is restricted] should

be deemed a public forum.” Although the traditional

forum analysis generally provides a workable analyti-

cal tool, “the analytical line between a regulation of the

‘time, place, and manner’ in which First Amendment

rights may be exercised in a traditional public forum,

and the question of whether a particular piece of per-

sonal or real property owned or controlled by the gov-

ernment is in fact a ‘public forum’ may blur at the

edges.” Id. (quoting U.S. Postal Service v. Greenburgh

Civic Ass’ns, 453 U.S. 114, 132 (1981)). In other words,

focusing on the location of a speech ban and not on the

operation of that ban fails to put the ban in its full con-

text. When courts inflexibly apply a categorical version

of forum analysis, they can distract themselves from

giving speech the protection it deserves.

Here, the normal forum analysis has proven inade-

quate. The Eighth Circuit, after finding that the poll-

ing place is a nonpublic forum, held that the speech

ban need only be viewpoint-neutral to pass constitu-

tional scrutiny. Pet. App. D-8. But as this Court’s prec-

edents have shown, even regulations that are facially

viewpoint neutral can sometimes have startlingly wide

breadth. In such a situation, the Court has applied a

level of scrutiny on par with that applied to speech reg-

ulations that discriminate based on viewpoint.

In City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994),

this Court declared unconstitutional a city ordinance

that prohibited property owners from displaying any

signs except “residence identification” signs, “for sale”

signs, and signs warning of safety hazards. /d. at 45.

In affirming the lower court, this Court noted a “par-

ticular concern” with laws that invalidated an entire

medium of expression. /d. at 55. As the Court ex-

plained, even viewpoint neutrality cannot save speech

restrictions of such a broad scope. Even though “prohi-

bitions foreclosing entire media may be completely free

of content or viewpoint discrimination,” the Court rec-

ognized that “the danger they pose to the freedom of

speech is readily apparent—by eliminating a common

means of speaking, such measures can suppress too

much speech.” Jd. As City of Ladue shows, sweeping

restrictions on speech, particularly political speech, re-

quire courts to set aside the traditional viewpoint-ver-

sus-content distinction. A categorical approach is inap-

propriate because it fails to protect core speech rights.”

2“[T}he Court long has recognized that by limiting the availabil-

ity of particular means of communication, content-neutral re-

strictions can significantly impair the ability of individuals to

communicate their views to others... . To ensure ‘the widest pos-

sible dissemination of information|,’ and the ‘unfettered inter-

change of ideas,’ the First Amendment prohibits not only content-

based restrictions that censor particular points of view, but also

content-neutral restrictions that unduly constrict the opportuni-

ties for free expression.” Gilleo, 512 U.S at 55 n.13. (quoting Geof-

frey R. Stone, Content-Neutral Distinctions, 54 U. Chi. L. Rev. 46,

57—58 (1987)) (internal citations omitted).

The restrictions found in Minnesota’s polling-place

regulation represent just such a sweeping prohibition

of core First Amendment speech. The law completely

bans a loosely defined genre of speech in all wearable

means of expression. If ever there were a regulation

that threatened “the widest possible dissemination of

information” and the “unfettered interchange of

ideas,” it is this one. Gilleo, 512 U.S. at 55 n.13.

Further, strict scrutiny is warranted because Min-

nesota’s law explicitly targets political speech. This

Court strongly protects “core political speech” as “oc-

cup[ying] the highest, most protected position” in the

hierarchy of constitutionally protected speech. R.A.V.

v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens,

J., concurring). See also Burson v. Freeman, 504 U.S.

191, 217 (1992) (“The statute directly regulates politi-

cal expression and thus implicates a core concern of

the First Amendment.”). This protection has been the

same whether such speech is oral or, as here, takes the

form of printed symbols and slogans. The Court has

defined political speech broadly to include all “interac-

tive communication concerning political change.”

Meyer v. Grant, 486 U.S. 414, 422 (1988).

This Court has frequently applied strict scrutiny to

political-speech bans, rega: © «s of the forum affected.

For example, when confronted with a law that would

have restricted all anonymous leafleting in opposition

to a proposed tax, the Court noted the importance of

specifically protecting such political speech:

Discussion of public issues and debate on

the qualifications of candidates are inte-

gral to the operation of the system of gov-

ernment established by our Constitution.

The First Amendment affords the broad-

est protection to such political expression

in order “to assure [the] unfettered inter-

change of ideas for the bringing about of

political and social changes desired by

the people.”

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

47 (1995) (quoting Roth v. United States, 354 U.S. 476,

484 (1957)).

More recently, the Court reaffirmed that laws bur-

dening political speech are subject to strict scrutiny. In

Citizens United v. FEC, 558 U.S. 310 (2010), the Court

invalidated a federal statute that barred certain inde-

pendent expenditures for electioneering communica-

tions. Highlighting the primacy of political speech, the

Court noted that “political speech must prevail against

laws that would suppress it, whether by design or in-

advertence. Laws that burden political speech are

‘subject to strict scrutiny,’ which requires the Govern-

ment to prove that the restriction ‘furthers a compel-

ling interest and is narrowly tailored to achieve that

interest.” Id. at 340 (quoting FEC v. Wis. Right to Life,

Inc., 551 U.S. 449, 464 (2007)).

With this history in mind, there is little doubt that

Minnesota’s polling-place restriction is hostile to the

protection that this Court has traditionally afforded

core political speech. By eliminating virtually all

means of political expression in or around the polling

place, the statute cuts off the “unfettered interchange

of ideas” in an important place for individual political

expression. McIntyre, 514 U.S. at 346-47. By failing to

apply strict scrutiny, the Eighth Circuit decision ig-

nored the unique disfavor this Court gives to blanket

bans on political expression. Such a ruling danger-

ously narrows First Amendment protections for politi-

cal expression, requiring this Court to clarify that

strict scrutiny should have been applied.

Il. MINNESOTA’S BAN ON POLITICAL

EXPRESSION CANNOT SURVIVE STRICT

SCRUTINY

In Burson v. Freeman, this Court upheld a content-

based restriction on political campaign speech in the

sidewalks and streets surrounding a polling place,

which were indisputably a public forum. Burson, 504

U.S. at 211. Although the Court found that the partic-

ular statute at issue was narrowly drawn to serve a

compelling state interest, it also cautioned that its

holding was narrow, representing the rare case where

a facially content-based law survived strict scrutiny.

Id. at 211. For several reasons, Minnesota’s speech

ban is distinguishable from the law in Burson. This is

not the “rare case” that withstands strict scrutiny.

A. Minnesota Has Not Presented a

Compelling State Interest for Banning All

Political Expression

When confronted with a statute restricting a fun-

damental right, this Court must first ensure that a

compelling government interest has been articulated.

If a statute’s stated or implied interest is not suffi-

ciently compelling, that statute must be struck down.

For example, in Republican Party of Minnesota v.

White, 536 U.S. 765, 777—79 (2002), the Court rejected

Minnesota’s stated interests of “preserving the impar-

tiality of the state judiciary” and “preserving the ap-

pearance of the impartiality of the state judiciary.”

Such interests were insufficiently compelling to sup-

port a law banning candidates for judicial election

from announcing their views on disputed issues.

Here, Minnesota has failed entirely to provide a

compelling state interest for its political speech ban.

Although the state suggested during this litigation

that the compelling interest supporting Minn. Stat. §

211B.11 is the same as the one accepted in Burson, a

close reading of the statute shows that this cannot be

the case. The Eighth Circuit erred in uncritically ac-

cepting this argument. See Pet. App. A-5; D-8.

In Burson, this Court determined that the ban on

campaign speech served two government interests.

First, it accepted the state’s argument that the statute

served the interest of allowing citizens to vote freely

for their candidate of choice. Burson, 504 U.S. at 198.

Second, it likewise accepted the claim that the statute

ensured the integrity and reliability of the election

process. Id. The Court’s analysis, however, was largely

based on a unique historical circumstance: the long

history of bribery, intentional confusion, and intimida-

tion at polling locations during the Colonial period.

That history explains why states had for centuries en-

acted legislation aimed at “battl[ing] against two evils:

voter intimidation and election fraud.” Jd. at 206.

Given that history, the Court concluded Tennessee

had a “compelling interest in protecting voters from

confusion and undue influence,” and in “preserving the

integrity of its electoral process.” Jd. at 199. As dis-

cussed infra, while the state has an interest in pre-

venting voter intimidation and “undue influence,”

properly and narrowly defined, it does not have a com-

pelling interest in protecting voters from “influence.”

Voter intimidation might be a species of “undue in-

fluence,” but Minn. Stat. § 211B.11 cuts more broadly

than that, prohibiting the wearing of “[a] —

badge, political button, or other political insignia .

at or about the polling place on primary election day.”

Thus, it differs starkly in both scope and objective from

the Burson statute. Moreover, by defining “political” as

“[iJssue oriented material designed to influence or im-

pact voting,” Minnesota’s law bans the very speech the

First Amendment protects most stringently. It does

not specifically target solicitation and “undue” influ-

ence, nor does it mention confusion or intimidation.®

This statutory silence is damning. Every aspect of

a political-speech ban must be justified by a compelling

interest. By failing to state an intent to target intimi-

dation or actual undue influence, Minnesota has failed

in its burden of showing that every speech restriction

in the statute furthers a specific and compelling end.

For this reason alone, the statute fails strict scrutiny.

B. Minnesota’s Ban on Political Expression Is

Not Narrowly Tailored to Achieve Any

Government Purpose

Even if this Court were to find that Minnesota had

put forward a sufficiently valid government interest,

the statute still is not narrowly tailored to meet that

interest while minimally affecting the speech interest.

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 45 (1983). To be narrowly tailored, a speech

3 Indeed, by evaluating the first and third sentences of the stat-

ute separately, the Eighth Circuit tacitly acknowledged that the

scope and purpose of the government interests differ between

the two sentences. Compare Pet. App. D-6—7 with id. at D-7—10.

ban “must be the ‘least restrictive means among avail-

able, effective alternatives.” United States v. Alvarez,

567 U.S. 709, 729 (2012) (quoting Ashcroft v.

ACLU, 542 U.S. 656, 666 (2004)).

Minnesota’s ban does not come close to meeting this

standard, being both overinclusive and underinclu-

sive. It is overinclusive because it bans political speech

that does not meaningfully frustrate the objectives of

ensuring electoral integrity and preventing voter con-

fusion. It is underinclusive because it allows speech in

the polling place that could create voter confusion or

intimidatior. so long as that speech is not “political.”

1. The ban is overinclusive because it dis-

allows even innocuous political speech.

Minn. Stat. § 211B.11 is fatally overinclusive. The

statute prohibits any insignia deemed to be “politi-

cal”—as determined solely at the discretion of the on-

site election judges. A hat or shirt bearing nothing

more than the words “Occupy” or “Tea Party,” or even

a picture of a blue donkey or red elephant, would fall

afoul of the ban. Yet such clothing is part of the normal

tableau of public life; no reasonable voter would inter-

pret such garb as an attempt to intimidate or cajole.

Additionally, the statute gives election judges the

power to ban any materials “promoting a group with

recognizable political views.” Pet. App. I-1—2. Local un-

ion badges, national flag buttons, or even pins indicat-

ing support for the Catholic Church‘ could all run afoul

of this provision. But banning such expression is un-

likely to further any legitimate government interest.

* The Catholic Church has an episcopal jurisdiction, The Holy

See, which is responsible for diplomatic and political decisions.

As the dissent explained in this case’s first trip to the

Eighth Circuit, it is hard to believe

that the presence of a passive and peace-

ful voter who happens to wear a shirt dis-

playing, for example, the words “Ameri-

can 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) somehow causes a disruption in

the polling place or confuses or unduly in-

fluences voters.

Pet. App. D-18 n.7.

It is telling that this Court has never found an ab-

solute bar on all political expression to be necessary to

further a government interest. See, e.g., Bd. of Airport

Comms of City of Los Angeles v. Jews for Jesus, Inc.,

482 U.S. 569, 574 (1987). Even if preventing polling-

place solicitation is a compelling government interest,

Minnesota’s speech ban is not narrowly tailored to ad-

dress that interest and so fails strict scrutiny.

2. The ban is fatally underinclusive.

In addition to analyzing whether a law prohibits

too much speech, tailoring analysis considers whether

it fails to restrict speech that is just as harmful to the

purported governmental interest. See, e.g., Citizens

United, 558 U.S. at 362 (striking down a statute bar-

ring independent expenditures for electioneering com-

munications because it barred corporate speech in only

select media and only for a 30-to-60-day period before

an election); Brown v. Entm’t Merchants Ass’n, 564

U.S. 786, 802 (2011) (invalidating as “wildly underin-

clusive” a state statute that imposed restrictions on

the sale of “violent video games” to minors because it

still allowed purchases if parents approved).

Minn. Stat. § 211B.11 suffers from an unconstitu-

tional degree of underinclusion. By targeting only “po-

litical” speech, it leaves non-political forms of persua-

sive or confusing speech entirely unregulated. For ex-

ample, the statute apparently does not stop individu-

als from wearing buttons or shirts describing the futil-

ity of voting or advertising P.J. O’Rourke’s book, Don’t

Vote: It Just Encourages the Bastards (2010).

The statute also has a purported goal of “main-

tain[ing] peace, order, and decorum” in the polling

place. Pet. App. A-5; D-8. Even if we accept the dubious

proposition that som one could start a fight by wear-

ing a button, surely there are as many non-political

statements that would do the trick as political ones.

Yet the statute leaves entirely unregulated most non-

political expression, even if it would be much more

likely to undermine peace, order, and decorum.

Minnesota’s speech ban is thus not narrowly tai-

lored to serve any legitimate state interest. By failing

to achieve a proper “fit” between what it seeks to

achieve and what it actually regulates, the law leaves

unregulated speech that would likely contribute to

polling-place confusion, while restricting speech that

has no appreciable effect on voters’ decision-making.

Ill. THE FIRST AMENDMENT PROTECTS THE

RIGHT OF SPEAKERS TO INFLUENCE

VOTERS, SO CREATING AN “INFLUENCE-

FREE” POLLING PLACE IS NOT A

COMPELLING STATE INTEREST

Minnesota’s law broadly prohibits any material

“designed to influence and impact voting,” or “promot-

ing a group with recognizable political views,” even

when the apparel makes no reference to any issue or

candidate on the ballot. Pet. App. I-1—2. The Eighth

Circuit ruled that, even if “apparel is not election-re-

lated, it is not unreasonable to prohibit it in a polling

place ... [iJn order to ensure a neutral, influence-free

polling place.” Minnesota Majority v. Mansky, 849 F.3d

749, 752 (8th Cir. 2017) (referring to Tea Party ap-

parel). The lower court’s analysis turned the First

Amendment on its head, so this Court should make

clear that creating “influence-free” spaces is not a com-

pelling interest under the First Amendment. Influenc-

ing voters is a constitutional virtue, not a harm.

Attempting to influence voters is the end of politics;

the First Amendment is the means. Minnesota's ban

on the passive act of displaying political speech at a

polling place is an egregious violation of those means.

“Legislative restrictions on advocacy of the election or

defeat of political candidates are wholly at odds with

the guarantees of the First Amendment.” Meyer v.

Grant, 486 U.S. 414, 428 (1988) (quoting Buckley v.

Valeo, 424 U.S. 1, 50 (1976). That premise is just as

true at polling places as it is one hundred miles away.

“(T]he principle of the freedom of speech springs

from the necessities of the program of self-government

.... It is a deduction from the basic American agree-

ment that public issues shall be decided by universal

suffrage.” Alexander Mieklejohn, Political Freedom

(1960). For democracy to function properly, voters

must have access to as much information as possible

so they may make the wisest choices at the ballot box.

See Alexander Mieklejohn, The First Amendment Is an

Absolute, 1961 Sup Ct. Rev. 245 (1961). Minnesota

may not, by way of criminal sanctions, attempt to in-

sulate the electorate from exposure to voices, views,

and opinions, which it assumes will influence voters’

free and informed choices. This notion is “incompatible

with the First Amendment.” Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 706 (1990) (Ken-

nedy, J., dissenting). Instead, Minnesota should re-

spect the “right of citizens to inquire, to hear, to speak,

and to use information to reach consensus.” Citizens

United, 558 U.S. at 339—40. A right which “is a precon-

dition to enlightened self-government and a necessary

means to protect it.” /d.

A. The Vague Invocation of “Undue

Influence” Cannot Save Minnesota’s Ban

Citing “a compelling interest in ‘protecting voters

from confusion and undue influence,” Mansky, 849

F.3d at 752, the Eighth Circuit endorsed the idea that

some political insignias may “unduly” influence voters

at a polling place. Amici do not understand how such

political influence could be “undue,” nor what part of

the Constitution permits the government to protect

voters from political influence.

More specifically, what is the harm from a voter's

being influenced at the polling place? We may hope

that voters will form their opinions and cast their bal-

lot based on facts, evidence, logic, and reason well be-

fore they arrive at their precinct, but the government

cannot command them to do so. People who are swayed

by the appearance of a campaign button or other attire

may not be the “ideal voter,” but they are entitled to

base their voting decisions on whatever they wish.

This is not a harm that requires a remedy.

“Undue influence” suggests an improper or over-

powering influence which overcomes the free will of a

voter. But one voter’s donning political garb at or near

the polling place possesses no magical power to compel

voter behavior. If anything, Minnesota has used its

overpowering influence to overcome the free will of the

voter by restricting the voters’ right to free expression

and the right to judge for themselves. This Court

should be wary of the government’s professed capabil-

ity to determine whether a particular form of political

speech is “undue” or unfair. “A State’s claim that it is

enhancing the ability of its citizenry to make wise de-

cisions by restricting the flow of information to them

must be viewed with some skepticism.” Anderson v.

Celebrezze, 460 U.S. 780, 798 (1983).

Undue influence “may represent no more than [the]

convincing weight of [an] argument fully presented,

which is the very thing the [First] Amendment and the

electoral process it protects [are] intended to bring

out.” United States v. CIO, 335 U.S. 106, 145 (1948)

(Rutledge, J., concurring). Whether that speech con-

sists of money spent, persuasive speech uttered, or

convincing political apparel worn is irrelevant. The

mere fact that a particular argument—or in this case

a t-shirt—may have a considerable persuasive effect is

not a reasonable basis for Minnesota's ban. In fact, it

is the exact opposite: potentially persuasive political

speech should receive the highest protection under the

First Amendment. See Citizens United, 558 U.S. at 382

(“A speaker’s ability to persuade...provides no basis for

government regulation of free and open public debate

on what the laws should be.”).

“The premise of our Bill of Rights . . . is that there

are some things... that g vernment »nnot be trusted

to do. The very first of these is establishing the re-

strictions upon speech that will assure ‘fair’ political

debate.” Austin, 494 U.S. at 692 (Scalia, J., dissenting).

Minnesota’s ban is such a restriction. Citizens must be

trusted and empowered to think for themselves, free of

government intervention which disrespects their intel-

ligence and capacity for reason. “[T]he people are not

foolish but intelligent, and will separate the wheat

from the chaff.” Jd. at 695. Justice Scalia’s reasoning

was vindicated in Citizens United, in which the Court

recognized that “|t]he First Amendment confirms the

freedom to think for ourselves.” 558 U.S. at 357. When

the government uses its power “to command where a

person may get his or her information or what dis-

trusted source he or she may not hear, it uses censor-

ship to control thought . . . [t]his is unlawful.” /d.

Voters must be free to use their own judgment—not

that of government officials—to determine which

forms of political expression are most convincing and

to exercise the franchise accordingly. Minnesota in-

fringes upon the natural truth that “[jjudgment is

given to men that they may use it.” John Stuart Mill,

On Liberty (1859). The question is, “[bjecause [that

judgment] may be used erroneously, are men to be told

that they ought not to use it at all?” Jd. The answer is

a resounding no. “The Government may not .. . deprive

the public of the right and privilege to determine for

itself what speech and speakers are worthy of consid-

eration.” Citizens United, 558 U.S. at 341.

B. Blanket Bans on Political Speech May be

Justified to Prevent Actual Intimidation,

Confusion, and Chaos—Not Influence

While Minnesota has no compelling interest in pre-

venting voter influence, it does have an interest in pre-

venting voter intimidation and confusion. Such intim-

idation can take the form of election judges illegally

offering interpretations of ballot initiatives, James

Nord, Scattered Polling-Place Disruptions and Prob-

lems Reported, MinnPost (Nov. 6, 2012),

http://bit.ly/2Apx3nx, or of unruly poll-watchers ask-

ing voters of IDs or misrepresenting their credentials.

Jocelyn Benson, When Poll-Watching Crosses the Line,

Politico (Aug. 25, 2016), http://politi.co/2E5Ro3d. To

counter those issues, Minnesota could reasonably re-

strict soliciting votes, giving speeches, or conducting

debates inside the polling place in order to prevent

voter intimidation and outright chaos. Without some

level of order, calm, and quiet, it would be difficult to

verify voter eligibility and for voters to concentrate

and decide on their ballot. But “people sometimes in-

voke a carelessly formulated notion of coercion to jus-

tify regulation of behavior, or speech, of which they do

not approve.” C. Edwin Baker, The Scope of the First

Amendment, 25 UCLA L. Rev. 964, 999 (1978).

Minnesota’s ban is carelessly formulated. The pas-

sive acts it restricts do not cause any chaos. Nor do

they intimidate or coerce—even if the apparel or insig-

nias directly advocate for the election or defeat of a

specific candidate or ballot initiative. “The notion that

such sweeping restrictions on speech are necessary to

maintain the freedom to vote and the integrity of the

ballot box borders on the absurd.” Burson v. Freeman,

504 U.S. 191, 218-19 (1992) (Stevens, J., dissenting)

(referring to “the simple ‘display of campaign posters,

signs, or other campaign materials”). The ban “does

not concern aggressive, disruptive action or even group

demonstrations.” Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 508 (1969) (holding that ban-

ning and punishing students for a silent, passive ex-

pression of opinion, unaccompanied by any disorder or

disturbance violates the First Amendment).

Minnesota seeks to prevent harms which are not

even caused by the free expression the law restricts.

“(S]peech harms occur only to the extent people ‘men-

tally’ adopt perceptions or attitudes.” Baker, supra, at

998. By assuming that voters cannot handle the sight

of a political button or a shirt bearing a candidate’s

name, Minnesota violates the autonomy of its citizens.

“(Rjespecting the listener’s integrity as an individual

normally requires holding the listener responsible for

her conduct unless she has been coerced or forced into

the activity.” Jd. The fact that Minnesota’s restriction

applies in the unique location that is the polling place

on election-day does not save it from the strictures of

the First Amendment. “Tradition notwithstanding,

the State does not have a legitimate interest in insu-

lating voters from election-day campaigning.” Burson,

504 U.S. at 227 (Stevens, J., dissenting) (citing Mills

vu. Alabama, 384 U.S. 214 (1966)).

IV. THE FIRST AMENDMENT PROTECTS

SELF-EXPRESSION QUA SELF-

EXPRESSION, AND POLITICAL APPAREL

IS A FORM OF SELF-EXPRESSION

By preoccupying itself with concerns of undue in-

fluence and attempts to communicate political mes-

sages, Minnesota ignores the importance of individual

autonomy, self-expression, and tolerance inherent in

the First Amendment. “The First Amendment serves

not only the needs of the polity but also those of the

human spirit—a spirit that demands self-expression.

To suppress expression is to reject the basic human de-

sire for recognition and affront the individual’s worth

and dignity.” Procunier v. Martinez, 416 U.S. 396, 427

(1974) (Marshall, J., concurring).

Individuals wear specific clothing in an effort to de-

fine themselves to the world. C. Edwin Baker refers to

the Vietnam War protestor who shouts about stopping

the war not to “communicate anything to people in

power,” but to “define herself publicly in opposition to

the war.” Baker, supra, at 994. The students who wore

black armbands in opposition to the Vietnam War did

the same. See, e.g., Tinker, 393 U.S. 503. The mere fact

that the sight of one of those armbands may inspire

reaction from those who disagree with its message was

not enough to support banning expression. This was

because “in our system, undifferentiated fear or appre-

hension of disturbance is not enough to overcome the

right to freedom of expression.” Jd. at 508. That free-

dom is the “basis of our national strength.” Jd.

Minnesota’s ban could reasonably be interpreted to

include clothing with rainbow symbols worn by LGBT

voters who refuse to hide in the closet, flag pins worn

by patriotic voters who cherish their military service,

or crosses worn by religious voters who find strength

in their faith. Many voters wear these things not to in-

fluence or intimidate others, but to claim membership

in a group and assert their identity. They seek only to

exercise their right to freedom of expression. A right

that “is justified first of all as the right of an individual

purely in his capacity as an individual .. . [and that]

derives from the widely accepted premise of Western

thought that the proper end of man is the realization

of his character and potentialities as a human being.

Thomas I. Emerson, Toward a General Theory of the

First Amendment, 72 Yale L.J. 877, 879 (1963). By re-

stricting the freedom of speech and expression, Minne-

sota violates that premise, invades voters’ autonomy,

and degrades their self-worth.

The ban also denies citizens’ capacity for tolerance

of differing views. We live in “a large and complex so-

ciety, with people of varied beliefs and interests.

Providing some accommodation of these varied beliefs

is a critical and basic task of the society.” Lee C. Bol-

linger, The Tolerant Society: A Response to Critics, 90

Colum. L. Rev. 979, 984 (1990). Allowing for the pas-

sive wearing of clothing and accessories with a politi-

cal message promotes this basic task. “In this sense,

free speech may simply function as a zone of extreme

toleration...because as a practical matter living with

divergent behavior is necessary.” Jd. Minnesota’s ban

is the type that prevents “people from engaging in sub-

stantively valued behavior,” and which “drastically

limit[s] the possibility of popular participation in

change.” Baker, supra, at 1016. That participation in

change is what our elections are all about. For these

reasons, the Court should invalidate Minnesota’s ban.

Limits on direct advocacy or political messages in or

about the polling place—in passive form without in-

timidation, disturbance, or confusion—should be

deemed unconstitutional.

CONCLUSION

For the reasons set forth above, amici ask the Court

to strike down Minnesota’s unconstitutional ban on all

“political” speech within the polling place.

Respectfully submitted,