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 United States

oe

A

MINNESOTA VOTERS ALLIANCE, et al.,

Petitioners,

v.

JOE MANSKY, et al.,

Respondents.

,

¥

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

ee

-

BRIEF AMICUS CURIAE OF

GOLDWATER INSTITUTE IN

SUPPORT OF PETITIONERS

,

¥

TIMOTHY SANDEFUR*

CHRISTINA SANDEFUR

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

*Counsel of Record

Counsel for Amicus Curiae Goldwater Institute

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Minnesota election law forbids voters from wear-

ing political badges, political buttons, or other political

insignia at the polling place. See Minn. Stat. § 211B.11.

The ban broadly prohibits any material “designed to

influence and impact voting,” or “promoting a group

with recognizable political views,” even when the ap-

parel makes no reference to any issue or candidate on

the ballot.

The Eighth Circuit, aligned with the Fifth and

D.C. Circuits, invoked Burson v. Freeman, 504 U.S. 191

(1992), to hold that a state can impose a “speech-free

zone” without infringing on the Free Speech Clause of

the First Amendment. There is deep tension between

those decisions and the reasoning in decisions of the

Fourth and Seventh Circuits, which hold that the First

Amendment does not allow a state to prohibit all polit-

ical speech.

The question presented is: Is Minnesota Statute

Section 211B.11, which broadly bans all political ap-

parel at the polling place, facially overbroad under the

First Amendment?

il

TABLE OF CONTENTS

Page

EC NS OS RL ON i

a ciacusisinsisncsantethinhindainncensncinibamananiiesinie ii

I ceniincnicntncducccnssnidtucabiivanieninibindinn iii

Identity and Interest of Amicus Curiae................. 1

ee i IIIT... csninssnneensonpessnnssusensstessnibenss 2

CE ctenrecinetintmannetiinmenstaiemmnannaes 6

I. Freedom of Speech Belongs to the Individ-

Eh Fy Oe vccniacenececintisnevenicspinsatesicies 6

A. This Court Should Explicitly Reject the

“Civic Conception” of Free Speech and

Make Clear that Individual Rights Take

PD icetnccnsrsentizeresnsnesievanseenreemiemeens 6

B. The Constitution Protects Free Speech

to Secure Individual Freedom, Not Pri-

marily to Serve Public Goals................. 12

Il. The Minnesota Statute Cannot be Justified

on the Basis of Maintaining Order or Pre-

I I cnccnsicercernsecnecneusecetinetininese 17

A. Preventing “Persuasion” or “Influence”-

by-Speech is Not a Legitimate Govern-

ment Interest and Attempting to do so

Inherently Amounts to Content-Based

Se ictieciccinscescnssesnnnsetmmnensenecianss 17

B. Maintaining Order is a Legitimate Gov-

ernment Interest, But the Minnesota

Ban Does not Appropriately Serve that

UII Ceccsssasruuipersabuerpanenstiicedioiinegesinvnts 22

5 EER ae nee ee cease Reese ee One mn Se ieee See 26

iii

TABLE OF AUTHORITIES

Page

CASES

Abood v. Detroit Bd. of Educ., 431 U.S. 209

Svar a ichidsieindiiaistcbicippircesanaaapaatcietsiaintiniihenaeiiabuaesetiisabidisinbiicintn 10

Abrams v. United States, 250 U.S. 616 (1919) ............. 6

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

1 EE EE ee Oe ee 5

Americans for Prosperity Found. v. Harris, 182

F. Supp. 3d 1049 (C.D. Cal. 2016)... 16

Arizona Free Enter. Club’s Freedom Club PAC v.

BataeeeGs,, FG TAs Fe CO BD scccsccesecscscescesscsnsescovese 1,3

Austin v. Michigan Chamber of Commerce, 494

Se Ce OED ssuisccscddbatictsinnsiniivibmccmamenseviniess a |

Bowers v. Hardwick, 478 U.S. 186 (1986)................... 12

Center for Competitive Politics v. Harris, 784

F.3d 1307 (9th Cir. 2015), cert. denied, 136

By ee EN eitibncvnicnicrutenineienssedenvinedepteetess 2,3, 16

Citizens United v. FEC, 558 U.S. 310 (2010).............. 14

Cohen v. California, 403 U.S. 15 (1971)... 5, 10, 11, 23, 26

Coleman vu. City of Mesa, 284 P.3d 863 (Ariz.

SUITE caepaendescenieusesepsiiaeemadideniaieiccienmsienhietiinmninesiees 1

Colorado Union of Taxpayers v. Denver (Denver

Cnty. 2d Jud. Dist., No. 2017-CV-034617, filed

Ss EIA SEED vicnsndecernecmpentnonssatenenanevnapebdcenbditeancenaened 3

Cotham v. Garza, 905 F. Supp. 389 (S.D. Tex.

EE costuscacicintebacticpeaniiebigeiebaniinieananssauetaadiensieaetontie 18

iv

TABLE OF AUTHORITIES — Continued

Page

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Boston, 515 U.S. 557 (1995) ..........cccccceeeeeees 13

Janus v. AFSCME (No. 16-1466, pending)................... 2

John Doe No. 1 v. Reed, 561 U.S. 186 (2010)........ 14, 20

Miller ex rel. Miller v. Penn Manor Sch. Dist.,

588 F. Supp. 2d 606 (E.D. Pa. 2008) ...............000c008 21

Minersville Sch. Dist. v. Gobitis, 310 U.S. 586

SE iiskasckenthhaninseisicsninduinaghiciibedasiulaiiianenieanentateies 9

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

Se cinnsiscattincaitndsicnisislisgiunibishidantineaneicngiisareteebenni 14, 27

Protect My Check, Inc. v. Dilger, 176 F. Supp. 3d

I Cae Be Pe icteiedsatecsovenscaatincnsivetaczeiannnsnesoscess 1

Reed v. Purcell, No. CV 10-2324-PHX-JAT, 2010

WL 4394289 (D. Ariz. Nov. 1, 2010)........ 1, 21, 23, 25

Rideout v. Gardner, 838 F.3d 65 (1st Cir. 2016),

cert. denied, 137 S. Ct. 1435 (April 3, 2017)........... 24

Rio Grande Found. v. City of Santa Fe, et al., No.

1:17-cv-00768 (D. N.M., filed July 26, 2017)........... 17

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

of & 0 eae 5, 18, 23, 24, 26

Tucker v. State of Cal. Dep't of Educ., 97 F.3d

I ee te Ce itnitnsincincennictescenireescivtceseesitcsncs 22

West Virginia State Bd. of Educ. v. Barnette, 319

Ee re OED inet tisenciniardinnceisensereceesessaget 9,10, 11,13

Wickberg v. Owens, No. 3:10-cv-08177-JAT (D.

SR, TE I a ee cracictamsdttscentaynecssininicseses 1, 25

v

TABLE OF AUTHORITIES — Continued

Page

STATUTES

I I adn caceishcegtneipsabbaieoeniarinnnalotniatii 19

Sa ca cnusidpeantaiesbunahiaeauenadia 19

cna sc aser cenideldanieebundiod wihiiotaiaienats 3, 18

ana ccennecemmnbliticieheatineeinsetiainahineage 19

OTHER AUTHORITIES

1 COLLECTED WORKS OF JAMES WILSON (Kermit

a es Oe Mi AEA SEIT scnccnccestconbebeqinsnbdtanpatenivesses 12

Bradley A. Smith, Campaign Finance Reform:

Searching for Corruption in All the Wrong

Places, 2003 Cato Sup. Cr. Rev. 187 (2003).....15, 16

Bradley A. Smith, The John Roberts Salvage Com-

pany: After McConnell, A New Court Looks to

Repair the Constitution, 68 Ouio Sr. L.J. 891

oh ca ducnenaeibcanseniasiabiisessuceints 20

Cass R. SUNSTEIN, DEMOCRACY AND THE PROBLEM

os csdessionennnsanoines 6

Cass R. Sunstein, Unity and Plurality: The Case

of Compulsory Oaths, 2 YALE J.L. & HUMAN.

A ET ERE ates nL ENA ST Ea 10

Cass R. SUNSTEIN, WHY SOCIETIES NEED DISSENT

RU Ay i BE SA IE Re ESD = SR ea 10

CNN, Man to Obama: Don't Touch My Girlfriend

I eeemcasodaas 19

Derek T. Muller, Ballot Speech, 58 Ariz. L. Rev.

SE inicnisacsidishscthaesdademnsiichsanbsedaainasesessterintdiubeusbante 18

vi

TABLE OF AUTHORITIES — Continued

Page

George Washington, Letter to the Hebrew Con-

gregation in Newport, R.I., Aug. 18, 1790,

in GEORGE WASHINGTON: WRITINGS (John

ES SE SAIL Ts e L ae NCE 8

James Madison, Property (1792), reprinted in

JAMES MADISON: WRITINGS (Jack Rakove, ed.

James Madison, Report on the Alien and Sedi-

tion Acts, January 7, 1800, reprinted in JAMES

MADISON: WRITINGS (Jack Rakove, ed. 1999).......... 11

Jon Riches, An Informed Citizenry: Broadening

the “Media Exemption” to Include Nonprofit

Communications (Goldwater Inst. July 13,

SEITE caleeseieesnntanbviciiiatiadiniduibdipiiieantinhetiausemimneeimnianeteuniens 2

Jud Campbell, Natural Rights and the First

Amendment, 127 YALE L.d. 246 (2017) .............00000 13

Kathleen M. Sullivan, Political Money and Free-

dom of Speech, 30 U.C. Davis L. Rev. 663

Ee cicnsichassidlttcicnlonsiebsshsdnecindantinnidioctbecimiataaptedenetianeieial 16

Letter to David Humphreys (Mar. 18, 1789), in 7

THE WRITINGS OF THOMAS JEFFERSON (Albert

A CE, TID eicainctiieicsnncnisntiivtunncniccssicccecens 13

Martin H. Redish, Freedom of Expression, Polit-

ical Fraud, and the Dilemma of Anonymity, in

SPEECH AND SILENCE IN AMERICAN LAW (Austin

I A a eiitedtdeenenenotnieesen i)

Owen M. Fiss, Free Speech and Social Structure,

71 Iowa L. REV. 1406 (1966) .........................000000000. 15

vii

TABLE OF AUTHORITIES — Continued

Rachel E. Stassen-Berger, Absentee Ballot Up-

date: Minnesota Records Smashed, TWIN CIrt-

IES PIONEER PRESS (Nov. 3, 2016) ..............00..0000

SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH

EL ASPETART CA RGR GE: RTT) ccvseccnscccccccsnstscccecocsesess

Stanley Kurtz, et al., Campus Free Speech: A

Legislative Proposal (Goldwater Inst., 2017)...

THE FEDERALIST No. 10 (J. Cooke, ed. 1961)..........

THOMAS HEALY, THE GREAT DISSENT (2013) ..........

Thomas Jefferson, Notes on the State of Virginia

(1787) reprinted in THOMAS JEFFERSON: WRiIT-

INGS (Merrill Peterson, ed. 1984) ....................0+.

Thomas Paine, Rights of Man: Part I (1791), re-

printed in THOMAS PAINE: COLLECTED WR'T-

INGS (Eric Foner, ed. 1995) ........................scecee0e.

1

IDENTITY AND INTEREST

OF AMICUS CURIAE'

The Goldwater Institute (“GI”) was established

30 years ago as a nonpartisan public policy and re-

search foundation devoted to advancing the principles

of limited government, individual freedom, and consti-

tutional protections through litigation, research, policy

briefings and advocacy. Through its Scharf-Norton

Center for Constitutional Litigation, GI litigates and

files amicus briefs when its or its clients’ objectives are

directly implicated.

GI devotes substantial resources to defending the

vital constitutional principle of free speech. Specifi-

cally relevant here, GI attorneys successfully repre-

sented citizens challenging bans on speech at polling

places in Reed v. Purcell, No. CV 10-2324-PHX-JAT,

2010 WL 4394289 (D. Ariz. Nov. 1, 2010), and Wickberg

v. Owens, No. 3:10-cv-08177-JAT (D. Ariz. filed Sept.

20, 2010). GI has also litigated and won important vic-

tories for other aspects of free speech, including Ari-

zona Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011); Coleman v. City of Mesa, 284 P.3d

863 (Ariz. 2012); Protect My Check, Inc. v. Dilger, 176

F. Supp. 3d 685 (E.D. Ky. 2016), and has appeared

' Pursuant to Supreme Court Rule 37(6), counsel for amicus

curiae affirms that no counsel for any party authored this brief in

whole or in part and that no person or entity, other than amicus,

their members, or counsel, made a monetary contribution to the

preparation or submission of this brief. Blanket consent for the

filing of amicus brief has been granted by all parties.

2

frequently as amicus curiae in this and other courts in

free speech cases. See, e.g., Janus v. AFSCME (No. 16-

1466, pending); Center for Competitive Politics v. Har-

ris, 784 F.3d 1307 (9th Cir. 2015), cert. denied, 136

S. Ct. 480 (2015).

Goldwater Institute scholars have also published

extensively on the importance of free speech in various

contexts, particularly involving regulations of “elec-

tioneering” or campaign finance restrictions that violate

free speech rights. See, e.g., Jon Riches, An Informed

Citizenry’ Broadening the “Media Exemption” to Include

Nonprofit Communications (Goldwater Inst. July 13,

2017);? Stanley Kurtz, et al., Campus Free Speech: A

Legislative Proposal (Goldwater Inst., 2017).’ Amicus

believes its litigation experience and policy expertise

will aid this Court in consideration of this case.

@

¥

SUMMARY OF ARGUMENT

The state has a legitimate interest in maintaining

order and decorum in the polling place. That can and

should be accomplished by enforcing prohibitions on

disruptions, assaults, and other ordinary torts and

crimes. It should not be accomplished by restrictions

on non-disruptive speech—let alone by the broad

2 https//s3.amazonaws.convlicensure/An+Informed+Citizenry+w+

Imagery+FINAL+.pdf.

’ http://goldwaterinstitute.org/wp-content/uploads/cms_page_

media/2017/2/2/X_Campus% 20Free% 20Speech%20Paper. pdf.

3

category of speech prohibited here: speech that might

“persuade a voter.” M.S.A. § 211B.11.

What this Court should not do is authorize the

state to pursue the illegitimate interest that has be-

come commonplace today: the effort to cleanse the

realm of political expression of allegedly improper “in-

fluence” in order to obtain the “unbiased,” “real” will of

the people. Cf Arizona Free Enter. Club, 564 U.S. at 749

(rejecting efforts to “level the playing field” as illegiti-

mate). Other examples of laws that aim at that illegit-

imate purpose are disclosure mandates that force

donors to nonprofit groups to provide their names, ad-

dresses, and even employers’ identities, to the public

whenever they support think tanks or political causes,

see, e.g., Colorado Union of Taxpayers v. Denver (Den-

ver Cnty. 2d Jud. Dist., No. 2017-CV-034617, filed Dec.

13, 2017); Center for Competitive Politics, 784 F.3d

1307—or laws that forbid people from donating to po-

litical campaigns as they wish. See, e.g., Austin v. Mich-

igan Chamber of Commerce, 494 U.S. 652 (1990).

Such restrictions on free expression all rest on the

erroneous premise that if only “improper” political in-

fluences were eliminated, democracy would reach the

“right” result—the true will of the people, without bias.

But this idea is wrongheaded. It is not possible to draw

a principled distinction between speech that can be al-

lowed to influence the public and speech that should

not be. And any efforts to draw such a line invite biased

enforcement and unconstitutional restrictions on free

speech.

4

That faulty idea depends, in turn, on a misguided

idea of what the First Amendment is designed to do—

namely, the notion, now common in the legal commu-

nity, that it exists to serve the purposes of society as a

whole rather than to protect the freedom of individual

speakers. That is an untenable notion, contrary to our

constitutional tradition, which ultimately leads to irre-

solvable legal problems. It downplays the essential im-

portance of individual conscience—which is the liberty

the First Amendment aims to secure. And it leads to

the conclusion that government can censor some indi-

viduals if (in the opinion of political leaders) doing so

is good for society.

This Court should take this opportunity to make

clear that the purpose of freedom of speech is not pri-

marily to serve broad social goals, but to protect indi-

viduals in their expressive rights for those individuals’

sake.

The relevance of these principles is plain when one

considers the obvious point raised by the dissent in

this case: the Minnesota statute goes far beyond pre-

venting disruptions in the polling place. See Pet. App.

D-18 n.7 (Shepherd, J., dissenting). It bans all speech

that is categorized—according to vague criteria en-

forced by inadequately trained personnel—as “politi-

cal,” even if that speech does not relate to any issue or

candidate on the ballot. Such a ban is actually more

likely to lead to disruption and delay—as the facts in

this case demonstrate—because it requires polling

place workers to monitor voters’ clothing and order

them to remove buttons or cover their shirts, or to go

5

home. Such a ban also encourages voters themselves to

monitor each other’s behavior instead of minding their

own business. All of this is more likely to provoke con-

frontations than simply letting a voter wear a button

when she goes into the voting booth. Certainly the gov-

ernment cannot censor—even in a nonpublic forum—

on the mere chance that speech might conceivably lead

to disruption. Cf Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 509 (1969) (“In order for the

State ... to justify prohibition of a particular expres-

sion of opinion, it must be able to show that its action

was caused by something more than a mere desire to

avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint.”); Cohen v. Cali-

fornia, 403 U.S. 15, 20 (1971) (speech may not be cur-

tailed without genuine evidence of disruption).

The bottom line is simple: just as “the Fifth and

Fourteenth Amendments to the Constitution protect

persons, not groups,” Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 227 (1995), so does the First

Amendment. It does not allow states to restrict speech

in order to achieve what political elites consider the

“proper” form of democratic deliberation. While pre-

serving order and quiet in a polling place is a legiti-

mate objective, that should be achieved in the least

censorious way possible, in order to respect the indi-

vidual right of free expression.

,

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6

ARGUMENT

I. FREEDOM OF SPEECH BELONGS TO THE

INDIVIDUAL, NOT TO SOCIETY

A. This Court Should Explicitly Reject the

“Civic Conception” of Free Speech and

Make Clear that Individual Rights Take

Precedence

Ever since Justice Holmes’s dissenting opinion in

Abrams v. United States, 250 U.S. 616 (1919), it has

been popular to describe the freedom of speech as a so-

cial construct designed to foster democratic delibera-

tion and decision-making. Holmes believed that free

speech is intended primarily to serve social goals, as

opposed to the goals of individuals. While persecution

for dissent was, in his view, “perfectly logical,” the rea-

son the Constitution bans persecution is in order to en-

able the public to find a “ground upon which [their]

wishes safely can be carried out.” Jd. at 630 (Holmes,

J., dissenting). This, he believed, is “better reached by

free trade in ideas” than by censorship. Jd. Free speech

was thus a privilege given to the citizen by the state in

order to achieve social goals—not a human right the

state must respect.

This approach to the First Amendment—which

holds that “the central constitutional goal” of free

speech is “creating a deliberative democracy” instead

of “protectling] preexisting private rights”—has been

called the “civic conception” of free speech. Cass R. SuN-

STEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH

18, 28 (1993). It has proven extraordinarily influential.

7

See, e.g., THOMAS HEALY, THE GREAT DISSENT 249 (2013)

(noting pervasiveness of the marketplace theory). It is,

however, profoundly flawed.

It is true, of course, that ideas are best tested in

competition with other ideas, and that free speech aids

democratic decision-making. But that is not the pri-

mary reason the First Amendment was written. The

authors of that Amendment viewed free speech not pri-

marily as a tool for accomplishing public goals, but as

a protection for a critical facet of personal autonomy

that must be secured against intrusion for the individ-

ual’s sake. James Madison made this clear when he

described freedom of opinion in terms of property

rights: the word “property,” he wrote, “embraces every

thing to which a man may attach a value and have a

right,” and therefore “a man has a property in his opin-

ions and the free communication of them. He has a

property of peculiar value in his religious opinions, and

in the profession and practice dictated by them.” James

Madison, Property (1792), reprinted in JAMES MADISON:

Writincs 515 (Jack Rakove, ed. 1999). This approach

to free speech might be called the individualistic con-

ception.

The individualistic conception does not contradict

the idea that free speech aids in democratic delibera-

tion, or that competition is the best way to test ideas.

Thomas Jefferson, for example, embraced the individ-

ualistic conception—arguing that opinions are private

matters over which government can have no legitimate

power—but also acknowledged that free speech is “the

only effectual agent| | against error” and “the test of . . .

8

investigation” for ideas. Thomas Jefferson, Notes on the

State of Virginia (1787) reprinted in THOMAS JEFFER-

SON: WRITINGS 285 (Merrill Peterson, ed. 1984). But to

the framers, the protection of the individual was more

important than these social benefits of free speech.

They embraced the individualistic conception in

conscious reaction against their own era’s version of

the civic conception, which was the British legal doc-

trine of “toleration.” The ruler of toleration saw free-

dom of opinion (particularly religious opinion) as a

privilege the king gave to the subject for public rea-

sons, rather than as an individual right. The Consti-

tution’s authors rejected the principle of toleration

for precisely this reason: because it subordinated the

individual’s freedom of opinion to social needs. The

founders instead adopted the principle of liberty of

conscience, which held that individuals are presump-

tively free to abide by and express their opinions.

Thomas Paine, for example, described toleration

as “not the opposite of Intoleration, but . . . the counter-

feit of it. .. . The one assumes to itself the right of with-

holding Liberty of Conscience, and the other of grant-

ing it.” Rights of Man: Part I (1791), reprinted in

THOMAS PAINE: COLLECTED WRITINGS 482 (Eric Foner,

ed. 1995). George Washington, too, rejected toleration

on the grounds that it assumed that “it |is| by the in-

dulgence of one class of people, that another enjoy|s|

the exercise of their inherent natural rights.” George

Washington, Letter to the Hebrew Congregation in

Newport, R.I., Aug. 18, 1790, in GEORGE WASHINGTON:

WRITINGS 767 (John Rhodehamel, ed. 1997). Today’s

9

civic conception of free speech is essentially identical

to the principle of toleration the founders repudiated.

One critical difference between the civic concep-

tion of speech and the individualistic conception is that

the civic conception implicitly assumes that free

speech may be curtailed to serve what political leaders

consider to be the greater good. Thus for example, the

two models of speech lead to different outcomes when

considering the case of people who do not wish to par-

ticipate in public deliberation, or to speak at all. The

civic conception of speech “might well place no protec-

tion whatsoever on the right not to speak,” writes one

scholar, because if “forced expression might benefit the

listener’s self-governing decision making,” compelling

a person to speak “would actually seem to further

|\democratic] values.” Martin H. Redish, Freedom of

Expression, Political Fraud, and the Dilemma of Ano-

nymity, in SPEECH AND SILENCE IN AMERICAN LAW 151

(Austin Sarat, ed. 2010) (emphasis added).

Thus in Minersville Sch. Dist. v. Gobitis, 310 U.S.

586 (1940), Justice Frankfurter, who embraced the

civic conception of free speech, wrote for the Court in

holding that the broader public good justified compel-

ling scheoi children to pledge allegiance to the flag.

“(Tihe freedom to follow conscience,” wrote Frankfur-

ter, “has ... limits in the life of a society,” as a conse-

quence of the “principles which, as a matter of history,

underlie| | protection of religious toleration.” Jd. at 594.

The Court repudiated that opinion only three

years later in West Virginia State Bd. of Educ. v.

10

Barnette, 319 U.S. 624, 638 (1943), and embraced the

individualistic conception of speech instead, when it

declared that “|t|he very purpose of a Bill of Rights was

to withdraw certain subjects”—including free speech—

“from the vicissitudes of political controversy” and

“place them beyond the reach of majorities.” See also

Cohen, 403 U.S. at 24 (First Amendment was written

“to remove governmental restraints from the arena

of public discussion, putting the decision as to what

views shall be voiced largely into the hands of each of

us”).*

* True, the civic conception of speech does recognize a limited

role for dissent, since the dissenter can contribute to a more in-

formed decision by the majority. But, again, the civic conception

sees the value of dissent solely in terms of its contribution to pub-

lic discussion. See, e.g., CASS R. SUNSTEIN, Wuy Socieries NEED

DissENT 213 (2005) (arguing that democracies should “take steps

to... promote dissent. . . partly to protect the rights of dissenters,

but mostly to protect interests of their own”). People who simply

do not want to participate in public discussion at all—who do not

want to enter the “marketplace of ideas” in the first place—have

no place in the civic conception. That explains why precedents

based on the civic conception, such as Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977), have authorized the government to override

the rights of dissenters in the service of allegedly democratic

goals: “As long as |a union) act|s| to promote the cause which jus-

tified bringing the group together, the individual cannot withdraw

his financial support merely because he disagrees.” Jd. at 223. It

also explains why Professor Sunstein, among the most prominent

advocates of the civic conception of speech, has described Barnette

as “too cavalier”: because it was based on a “belief] | in individual

immunity from communal ties.” Cass R. Sunstein, Unity and Plu-

rality: The Case of Compulsory Oaths, 2 YALE J.L. & HUMAN. 101,

111 (1998).

1l

Barnette, Cohen, and other cases embracing the

individualist conception were correct. The First Amend-

ment’s expression provisions do not contemplate free-

dom of speech as a privilege given to the individual for

social purposes, but as a right enjoyed by the individ-

ual for her own sake. That is certainly true of its reli-

gion clauses, which protect freedom of religion not to

serve broader social goals, but to protect individuals

per se. There is no reason to view the expression

clauses as different.

In fact, James Madison himself pointed this out

when he explained that both the speech and religion

clauses of the First Amendment were designed to re-

pudiate the civic conception of individual rights. He

refuted those who took a narrow view of the Amend-

ment’s speech clauses—who claimed that those clauses

did no more than incorporate English common law

relating to free speech, which was based on the civic

conception—by pointing out that “(t]he freedom of con-

science, and of religion, are found in the same |[Amend-

ment] which assert(s} the freedom of the press.” See

James Madison, Report on the Alien and Sedition Acts,

January 7, 1800, reprinted in JAMES MADISON: WRIT-

INGS 648 (Jack Rakove, ed. 1999). Yet it would “never

be admitted, that the meaning of the former, in the

common law of England, is to limit their meaning in

the United States.” Jd. Thus the speech clauses should

also be read more broadly—as giving individuals

greater security than the miserly protections that the

English civic conception provided.

12

B. The Constitution Protects Free Speech

to Secure Individual Freedom, Not Pri-

marily to Serve Public Goals

What Justice Blackmun said of privacy rights is

certainly true of free speech: the Constitution protects

it “not because [it] contribute|s], in some direct and

material way, to the general public welfare, but be-

cause [it] form{s] so central a part of an individual's

life,” and “embodies the ‘moral fact that a person be-

longs to himself and not others nor to society as a

whole.’” Bowers v. Hardwick, 478 U.S. 186, 204 (1986)

(Blackmun, J., dissenting) (citation omitted).

One indication that the First Amendment em-

braces the individualistic conception of speech instead

of the civic conception is that the framers routinely re-

ferred to it as protecting freedom of conscience. The

word “conscience” applies to individuals or to groups of

individuals each expressing their shared individual

opinions. See, e.g., SAMUEL JOHNSON, A DICTIONARY OF

THE ENGLISH LANGUAGE (11th ed. 1797) (defining con-

science as “|t}he knowledge or faculty by which we

judge of the goodness or wickedness of our own ac-

tions,” and “knowledge of our own thoughts”). Thus for

exemple, James Wilson defined the “rights of con-

science” as “[t]he right of private judgment... . To be

deprived of it is insufferable. To enjoy it lays a founda-

tion for that peace of mind, which the laws cannot give,

and for the loss of which the laws can offer no compen-

sation.” 1 COLLECTED WORKS OF JAMES WILSON 539

(Kermit L. Hall, et al., eds. 2007). Thomas Jefferson

wrote, in defense of his proposed Virginia Statute of

13

Religious Freedom, that “our rulers can have authority

over such natural rights only as we have submitted to

them. The rights of conscience we never submitted, we

could not submit.” Notes on the State of Virginia, supra

at 285. These words demonstrate that the purpose of

constitutional protections for freedom of conscience

was not to facilitate collective decision-making, but to

protect individual rights, full stop.

The same is true of the First Amendment's speech

and press clauses. While free speech plays an essential

role in democratic government, its primary purpose is

to secure individual freedom. See Jud Campbell, Natu-

ral Rights and the First Amendment, 127 YALE L.J. 246,

264—87 (2017) (explaining founders’ conception of free

speech as an individual right). The expression clauses

were designed to protect “freedom of opinion,” or as Jef-

ferson called it, “the rights of thinking, and publishing

our thoughts by speaking or writing.” Letter to David

Humphreys (Mar. 18, 1789), in 7 THE WRITINGS OF

THOMAS JEFFERSON 323 (Albert Ellery Bergh, ed. 1907).

The Barnette Court later called this “freedom of mind.”

319 U.S. at 637. It is why even an expression without

public political significance—such as a private poem,

or a Jackson Pollock painting, or an aesthetic judg-

ment—falls within the freedom of speech guarantee.

Cf Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of

Boston, 515 U.S. 557, 569 (1995) (“[the] painting of

Jackson Pollock, music of Arnold Schéenberg, or Jab-

berwocky verse of Lewis Carroll” are “unquestionably

shielded” by the First Amendment).

14

This is not to deny that free speech plays a critical

role in democratic deliberation. But it is crucial to keep

in mind that that is a secondary consequence—not the

basis of the Constitution’s protections. The purpose of

free speech is to preserve the individual’s sacrosanct

freedom of mind. Where these priorities are reversed,

the rights of dissent can too easily be overridden to

serve allegedly greater public goods.

This happens routinely in the area of campaign fi-

nance regulation, where the rights of individuals to ex-

press and advocate for their own opinions, even in the

political realm, are frequently violated in order to ac-

complish what political leaders claim are “democratic”

goals. For example, the right of anonymous speech has

been violated by statutes that compel individuals and

groups to divulge their identities when contributing to

a political campaign. See, e.g., John Doe No. 1 v. Reed,

561 U.S. 186 (2010) (upholding compulsory disclosure

of identities of donors to political campaigns). Donors

have been forbidden to contribute money to support po-

litical candidates as they wish, on the theory that such

limits somehow make the outcome of a campaign more

qualitatively democratic. Nixon v. Shrink Mo. Gov't

PAC, 528 U.S. 377 (2000). Citizens and activist groups

have even been forced to obtain federal pre-approval

before exercising their First Amendment rights. See,

e.g., Citizens United v. FEC, 558 U.S. 310, 335-36

(2010) (invalidating campaign finance regulations that

were so complicated that they amounted to a prior re-

straint on speech).

15

Most shockingly, Americans have even been pun-

ished for displaying home-made signs advocating for

candidates for public office, on the grounds that their

signs constituted illegal in-kind contributions to a

campaign—even though such signs are almost the pro-

totypical instance of fully protected political speech.

See Bradley A. Smith, Campaign Finance Reform:

Searching for Corruption in All the Wrong Places, 2003

Cato Sup. Cr. Rev. 187, 187-88 (2003) (detailing case

of Texas Republicans Bill Liles, Mark Morton, and Don

Bryant, who were charged with violating campaign fi-

nance rules for displaying a sign painted on a large

plywood board, mounted to the side of a cotton trailer

supporting presidential candidate Texas Governor

George W. Bush).

All these violations of the First Amendment result

from the civic conception of speech, because it regards

speech as a privilege extended to citizens for some

broader “democratic” goal—which necessarily implies

that the speech rights of individuals may be cut or

stretched to serve that goal. Proponents of the concep-

tion openly admit that they believe it is “necessary to

restrict the speech of some elements of our society in

order to enhance the relative voice of others.” Owen M.

Fiss, Free Speech and Social Structure, 71 lowa L. Rev.

1405, 1425 (1986) (internal quotations omitted). In

practice, this means censoring persons or groups who

are thought to have “too much” political influence or to

be too effective in expressing their views.

Recent political debates over “dark money” are

a prime example. Advocates of campaign finance

16

restrictions allege that wealthy donors to political can-

didates or campaigns have a “disproportionate” effect

on political debates, which “distorts” the democratic

process. See Kathleen M. Sullivan, Political Money and

Freedom of Speech, 30 U.C. Davis L. Rev. 663, 671-87

(1997). They therefore support laws that deprive citi-

zens of the right to participate in the political process

in order to result in a more “balanced” or “fair” public

debate which will presumably result in the “right”

democratic outcome. See Smith, supra at 204. Even

this Court once referred to the “distorting effects” on

democracy purportedly caused by “immense aggrega-

tions of wealth,” Austin, 494 U.S. at 660—implying that

the ability to effectively persuade others in the mar-

ketplace of ideas is somehow a “distortion” of the dem-

ocratic process.

In recent years, political leaders have even begun

to force think-tanks and other non-profits that do not

endorse candidates to disclose the identities of their

donors, on the theory that these think-tanks are dis-

torting the democratic process by promoting their

views and seeking to persuade voters and politicians

to act. See, e.g., Center for Competitive Politics, 784 F.3d

1307; Americans for Prosperity Found. v. Harris, 182

F. Supp. 3d 1049 (C.D. Cal. 2016).

In a case that the Goldwater Institute is currently

litigating, the city of Santa Fe, New Mexico, adopted an

ordinance forcing donors to non-profit organizations to

publicly disclose their names, addresses, and other in-

formation, if the organizations to which they contrib-

ute spend $250 to supp“rt or oppose a ballot measure.

17

When the non-profit Rio Grande Foundation posted on

its Facebook page a video opposing a citywide ballot

measure to impose a $0.02 tax on large sodas, the city

sent the Foundation a threatening letter complaining

that it had “reached more than 100 eligible voters,” and

insisting that it provide the city with confidential in-

formation about its supporters. See Complaint, Rio

Grande Found. v. City of Santa Fe, et al., No. 1:17-ev-

00768 at 74 19-22 (D. N.M., filed July 26, 2017).

These instances of censorship are all premised on

the idea that the speech of some elements of society

can be abridged to serve broader, more “democratic”

purposes, because the goal of speech is to promote col-

lective ends rather than individual ones. Because the

civic conception of the First Amendment is flawed, has

no constitutional foundation, and leads ultimately to

censorship, this Court should reject it and decline to

uphold the Minnesota statute on that basis.

Il. THE MINNESOTA STATUTE CANNOT BE

JUSTIFIED ON THE BASIS OF MAINTAIN-

ING ORDER OR PREVENTING “INFLU-

ENCE”

A. Preventing “Persuasion” or “Influence”-by-

Speech is Not a Legitimate Government In-

terest and Attempting to do so Inherently

Amounts to Content-Based Censorship

The court below found that the statute aims “to

ensure a neutral, influence-free polling place” by ban-

ning “all political material,” Pet. App. at A-6, and all

18

“material designed to influence or impact voting.” Jd.

at A-3. The statute itself forbids efforts to “persuade a

voter.” M.S.A. § 211B.i1(1). But while eliminating dis-

ruption, violence, or bribery in a polling place is cer-

tainly a legitimate government interest, eliminating

speech that merely influences or persuades is not. One

of the main purposes of speech is to influence, and it is

not possible to distinguish between speech that influ-

ences and speech that does not influence.

Obviously one primary reason people engage in

expression is to influence others. This is not improper,

nor is there any legitimate basis for drawing the line

at the polling place. Just as a student does not lose

her First Amendment at the schoolhouse gate, Tinker,

393 U.S. at 506, so a voter does not surrender his right

to speak when he participates in voting. So long as

expression is not disruptive, does not interfere with

public employees’ duties, and does not amount to

intimidation, assault, bribery, or some other tort or

crime, the state has no legitimate basis for banning it.

In fact, speech designed to “influence” occurs in

the polling place all the time: voters carry voting

guides into the voting booth, which recommend voting

one way or other and include “pro” and “con” state-

ments regarding candidates and ballot initiatives. See

Cotham v. Garza, 905 F. Supp. 389 (S.D. Tex. 1995) (in-

validating ban on voting guides in the voting booth).

The ballot itself can contain language chosen by candi-

dates in an effort to influence voters—such as the way

the candidate chooses to describe his profession. See

Derek T. Muller, Ballot Speech, 58 Ariz. L. Rev. 693,

19

705—08 (2016). Voters can enter the polling booth with

smart phones, and use them to text message friends or

family members to ask how they should vote. In Min-

nesota and other states that allow voting by mail, see

M.S.A. § 204B.45,° voters can fill out their ballots in

their kitchens while listening to Rush Limbaugh or

Rachel Maddow. Disabled voters can even vote in their

cars in Minnesota, M.S.A. § 204C.15, while a talk show

plays on the radio. In Oregon, ail voting is done by

mail—meaning that all of the state’s voters can be sub-

jected to “influence” or “persuasion” during the voting

process. O.R.S. § 254.470.

“Influence” of this sort occurs frequently in other

voting contexts. At shareholder meetings, City Council

or Town Hall meetings, board of trustee meetings, jury

deliberations, and other places, votes are often cast im-

mediately after or even during discussions about how

to vote. Candidates themselves vote, often with the me-

dia photographing them doing so, despite the fact that

their very faces are associated with “recognizable po-

litical views,” and their very presence at the polling

place must inevitably “influence” voters. See, e.g., CNN,

Man to Obama: Don’t Touch My Girlfriend (Oct. 21,

2014).° In a 1966 case, the Arizona Court of Appeals

found that a person violated the electioneering merely

* This option is quite popular in Minnesota. See Rachel E.

Stassen-Berger, Absentee Ballot Update: Minnesota Records Smashed,

Twin Crtres PIONEER Press (Nov. 3, 2016), http://www.twincities.

com/20 16/1 1/03/nearly-4 16000-absentee-ballots-have-already-voted-

13-percent-of-registered-voters/.

* https://www.youtube.com/watch?v=N 1 DHfOuXilc.

20

by serving as a poll worker on election day and intro-

ducing herself to voters, because her name also ap-

peared on the ballot. Fish v. Redeker, 411 P.2d 40 (Ariz.

App. 1966).

But influencing and persuading voters is what

elections are for. At the time the First Amendment was

written, this was the ordinary practice for federal and

state elections, which were typically held in the open;

after both candidates spoke to the crowd, voters would

immediately and openly express their preferences.

John Doe No. 1, 561 U.S. at 224—26 (Scalia, J., concur-

ring).

The effort to eliminate “influence”—as opposed to

the proper elimination of bribery, intimidation, etc.—is

the product of a more recent era, and one guided by the

flawed civic conception of free speech, which imagines

that there is some correct, objective democratic out-

come that would result if the process were cleansed of

improper “influences.” This is inevitably doomed, be-

cause “[t/here is always more speech out there, giving

some people ‘undue’ influence and thereby posing at

least the threat of the appearance of corruption,” and

therefore always another round of further restrictions

on speech in an effort to stamp out such influence.

Bradley A. Smith, The John Roberts Salvage Company:

After McConnell, A New Court Looks to Repair the Con-

stitution, 68 Onto Sr. L.J. 891, 903 (2007).

As James Madison warned, it would be “folly to

abolish liberty, which is essential to political life, be-

cause it nourishes faction.” THE FEDERALIST No. 1U at

58 (J. Cooke,0 ed. 1961). Attempts to restrict free

21

speech in order to prevent vaguely-defined bad “influ-

ences” on voters is exactly that.

Because it is impossible to define “influence” with

precision, efforts to enforce this prohibition will inevi-

tably end with bias and discrimination, perhaps un-

consciously so. Vague speech restrictions encourage

discriminatory enforcement. See, e.g., Miller ex rel. Mil-

ler v. Penn Manor Sch. Dist., 588 F. Supp. 2d 606,

629 (E.D. Pa. 2008) (finding ban on T-shirts that cause

“distraction” to be unconstitutionally vague). In the

Purcell case, for example, a Maricopa County official

instructed poll workers that they could not allow vot-

ers to wear shirts that said “Don’t Tread on Me”—a

phrase that appeared on one of the nation’s earliest

flags—because, in that official’s opinion, the flag had

been “co-opted” by “the Tea Party.” Complaint, Reed v.

Purcell, No. CV 10-2324-PHX-JAT (D. Ariz. Oct. 28,

2010), Doc. No. 1 at {9 28-29. Here, the risk of arbi-

trary and discriminatory enforcement is greater, given

the extraordinary breadth of the prohibition. The court

below even held that the state could forbid a person

from wearing a button that simply says “Liberty” Pet.

App. D-2. Suffice it say that any rule that forbids a

voter from wearing the nation’s flag or the word “lib-

erty” while casting a ballot is probably unconstitu-

tional.

22

B. Maintaining Order is a Legitimate Gov-

ernment Interest, But the Minnesota Ban

Does not Appropriately Serve that Inter-

est

The state also asserts that the statute serves a le-

gitimate interest in maintaining the orderly operation

of a polling place. But while that interest is legitimate,

the state may not serve that interest in a way that cur-

tails more speech than necessary. The correct path was

laid out in Tucker v. State of Cal. Dep’t of Educ., 97 F.3d

1204, 1216-17 (9th Cir. 1996), which held that the

state violated the First Amendment when it prohibited

“religious advocacy” and the display of religious mate-

rials outside the employees’ cubicles and offices. Of-

fices in a government building are a non-public forum.

Id. at 1214—15. Yet the court still found the ban overly

broad. While maintaining order and decorum in a gov-

ernment workplace is a legitimate government inter-

est, the state still could not impose an across-the-board

ban on speech to serve that interest. “|T)he undefined

term ‘religious advocacy’ encompasses a wide range of

speech,” the court found, “much of it permissible.” Jd.

at 1217.

Exactly the same analysis applies here. Minnesota

has a legitimate interest in preserving order in the

polling place, but that cannot justify an absolute pro-

hibition on political clothing or buttons—a ban so

broadly worded that it encompasses a wide range of

permissible speech. The court below concluded that

the ban is viewpoint-neutral because it prohibits all

speech by “a group with recognizable political views.”

23

Pet. App. A-3. But the breadth of this prohibition can-

not cure its vagueness. As the dissent below observed,

even a flag depicting a Star of David might qualify as

“political” and therefore “influential” under this stat-

ute. Pet. App. D-18 n.7 (Shepherd, J., dissenting). Is a

person who wears a shirt saying “Build the Wall” in vi-

olation of the statute? Or “#MeToo”? Or a shirt with

a picture of a marijuana leaf?’ Or a humorous shirt

that says “Nixon in 2020: Tanned, Rested, Ready”?* It’s

anybody’s guess.

Also instructive here are Cohen and Tinker. In Co-

hen, this Court found that the state could not prosecute

a man who wore a jacket saying “fuck the draft” in a

courthouse, notwithstanding that a courthouse hall-

way is certainly not a public forum, and the state has

authority to preserve propriety and order there. Yet the

Court found it excessive for the state to forbid such ex-

pression on the mere possibility that disruption might

result. 403 U.S. at 20 (there was “no showing that any-

one who saw Cohen was in fact violently aroused or

that appellant intended such a result”).

Similarly, in Tinker, there was no denying that the

state has a legitimate interest in maintaining order,

decorum, and discipline on a public school campus—

more so, even, than it has over a polling place, since the

state stands in loco parentis over schoolchildren, but

" In Purcell, 2010 WL 4394289 at *4, poll workers in Mari-

copa County, Arizona, were instructed that a T-shirt with a picture

of a marijuana leaf would be prohibited, because an initiative re-

garding medical marijuana was on the ballot.

* https://goo.gl//W6Vk6s.

24

not over voters. Yet this Court held that students have

a First Amendment right to express themselves by

wearing clothing that conveys a political message, “un-

less it ‘materially and substantially interfere(s) with

the requirements of appropriate discipline in the oper-

ation of the school.’” 393 U.S. at 505 (citation omitted).

And even then, school officials bear the burden of

bringing forth “evidence that |a prohibition] is neces-

sary to avoid material and substantial interference

with schoolwork or discipline.” Jd. at 511.

Adult voters participating in an election—during

which they have presumably participated in public

deliberation on the merits of candidates or ballot

measures—certainly have broader expressive rights

than students in a public school classroom. The gov-

ernment bears the burden of providing some evidence

that the restriction here is necessary. Cf Rideout v.

Gardner, 838 F.3d 65, 73 (1st Cir. 2016), cert. denied,

137 S.Ct. 1435 (April 3, 2017) (invalidating law

against “ballot selfies” and noting that “(t]he govern-

ment’s burden is not met when a ‘State offer|s] no evi-

dence or anecdotes in support of its restriction.’”

(citation omitted)). Yet the court below made no effort

to determine whether there was any basis for believing

that an absolute prohibition on speech that might be

construed by polling place workers as “political” is nec-

essary to preserve order.

On the contrary, the prohibition here is more likely

to provoke a disturbance than a citizen wearing a T-

shirt or a button. The statute encourages busybody

monitoring of the clothing voters wear, and the record

25

shows that in some instances this did result in disorder

and indecorum. One voter was ordered to remove his

T-shirt. Another was “delayed several hours” before he

was allowed to vote. Pet. App. D-3 (emphasis added).

Stil! another was forced to turn over his name and ad-

dress. Id.

Such disruption has also occurred in other, similar

cases. In Wickburg, supra, an Arizona voter went to her

polling place on election day wearing a white T-shirt

with a picture of the U.S. flag and the Constitution and

the words “Flagstaff Tea Party-Reclaiming Our Con-

stitution Now.” See Complaint, Wickburg v. Owens, No.

3:10-cev-08177-JAT, Doc. No. 1 at ¥¥ 12-13 (D. Ariz.

filed Sept. 20, 2010). She was _ rdered to turn her shirt

inside out or “go out and get a jacket” to cover it before

she would be allowed to vote. Jd. J 15. Poll workers in-

timidated and scolded her, then allowed her to vote

“only because” no other voters were present at the

time. Jd. J 18. At the next election, she again wore her

shirt, and poll workers allowed her to vote only after

she covered it with a sweater. Jd. {J 30-31. As she left,

poll workers told her she would not be allowed to vote

if she wore the shirt again. Id. at | 33.°

These incidents demonstrate that prohibitions on

the non-disruptive wearing of a T-shirt or button are

more likely to lead to confrontation, intimidation, har-

assment, confusion, delay, and disruption than simply

* The voter then sued. After a federal judge enjoined another

Arizona county from enforcing a similar ban (Purcell, supra), her

case was settled and the government agreed not to enforce the

ban.

26

respecting the right of voters to wear what they like.

That problem is accentuated by the breadth of the ban

in this case, because it is more likely the people wear-

ing T-shirts that are only marginally “political”—such

as a Star of David or a marijuana leaf—will object to

being commanded to cover their shirts or turn them

inside-out. Unreasonably broad bans of this sort will

inevitably provoke more confrontations—and did, in

fact, in this case—thereby leading to greater disrup-

tion in the polling place.

The Minnesota ban therefore must fail under the

order-and-decorum theory because it is too broad to

serve that purpose without also intruding on constitu-

tionally protected speech; it lacks an evidentiary basis

to show that disruption is really likely to follow voters

wearing T-shirts or buttons, and it is not reasonably

designed because it is likely to cause—and in fact has

caused—more disturbance at the polls, not less.

2

-

CONCLUSION

The state has a legitimate interest in prohibiting

disorder, violence, intimidation, bribery, threats, and

other crimes and torts at the polls. But it cannot seek

to prevent the mere possibility of such things by pro-

hibiting speech, without at least providing some evi-

dence that this risk is genuine. Tinker, 393 U.S. at 738;

Cohen, 403 U.S. at 20. And it has no legitimate interest

in preventing, restricting, or shaping “influence.” That

objective is based on the flawed assumption that the

27

freedom of speech is designed to further collective aims

instead of individual ones. The government has no le-

gitimate interest in “democratizling] . . . influence(s]”

by restricting who may speak and about what and

where. Nixon, 528 U.S. at 401 (Breyer, J., concurring).

And efforts to do so will inevitably encourage arbitrary

and discriminatory enforcement, at the expense of

First Amendment protections.

The judgment should be reversed.

Respectfully submitted,

Dated: January 10, 2018

TIMOTHY SANDEFUP*

CHRISTINA SANDEFUR

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

*Counsel of Record

Counsel for Amicus Curiae Goldwater Institute