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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0752%3A18

## Record

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

## Text

No. 16-1435

In the Supreme Court of the Gnited States

MINNESOTA VOTERS ALLIANCE, et ai.,

Petitioners,
Vv.

JOE MANSKY, et a/.,
Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

BRIEF OF JUSTICE AND FREEDOM FUND
AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

James L. Hirsen

Counsel of Record
505 S. Villa Real Drive, Suite 208
Anaheim Hills, CA 92807
(714) 283-8880
james@jameshirsen.com

Deborah J. Dewart

620 E. Sabiston Drive
Swansboro, NC 28584-9674
(910) 326-4554
debcpalaw@earthlink.net

Counsel for Amicus Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~- 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........---++++>: iil
INTEREST OF AMICUS CURIAE .........-.--. 1
INTRODUCTION AND

SUMMARY OF THE ARGUMENT .......... 2
ARGUMENT... 22 cc ccc ccc reece c ee reccecces 3

L. THE STATUTE IS A CONTENT-BASED
RESTRICTION ON CORE POLITICAL
SPEECH THAT GRANTS EXCESSIVE
DISCRETION TO OFFICIALS AND
CREATES AN UNREASONABLE RISK OF
VIEWPOINT DISCRIMINATION. ........ 3

A. The Statute Is Imprecise, Granting
Officials Broad Discretion To Determine
What Is “Political” And Turn Voters

BE vccvecsecdivenssscccceencecrs 4
B. Forum Analysis Does Not Salvage The
Sn rere rT Te Te ee ee 10

[l. | THESTATUTE IMPEDES THE RIGHTS OF
VOTERS INSTEAD OF PROTECTING
GE nck cec ces evctencsoneivséececs 14

A. The Rights Of Voters Are Paramount—
The Right To Vote And The Right To

Political Expression. .........-.+++>+> 14
B. The State’s Interests Are Subservient To
The Rights Of Voters. ..........--++- 18

C. The Passive Speech Of Voters Is Not An
Appropriately Targeted Evil. ......... 21

Il. THE EIGHTH CIRCUIT RULING
EXACERBATES A DANGEROUS TREND
TO ESTABLISH “FREE SPEECH ZONES”
THAT IMPERIL FIRST AMENDMENT
RL Rho Wahs deuce ubdeend Ou NS Gap 26

EA cod cuvaleuweasekes Cade) a? 28

iii
TABLE OF AUTHORITIES

Cases

AFSCME, Council 25 v. Land,
583 F. Supp. 2d 840 (E.D. Mich. 2008) ....... 23

Anderson v. Celebrezze,
PD ie cesce he cbeueeee’ 18, 19

Anderson v. Spear,
356 F.3d 651 (6th Cir. 2004) ............... 19

Arkansas Educ. Television Comm'n v. Forbes,
ee eee wis Babcs 21

Berner v. Delahanty,
SP ae ee Gs BE) vice revccvccsecs 20

Bd. of Airport Commissioners v. Jews for Jesus,
GUE EID oat cecceccceeceds 7, 25, 26

Broadrick v. Oklahoma,
I ae ee 20

Bryant v. Gates,
532 F.3d 888 (D.C. Cir. 2008) .............. 21

Buckley v. Valeo,
65s 4 en 6 666 sobs eee dn CRED 3

Burson v. Freeman,
SE EEE cbc ccc cciscoscsebe passim

Capen v. Foster,
I ns ek a we ea ans 14

Citizens for Police Accountability Political Comm. v.

Browning,
572 F.3d 1213 (11th Cir. 2009) ............. 24

iv

Cohen v. California,

eT IE. oe woewanw ua ueasence 15, 22
Cons. Edison Co. v. Public Serv. Comm'n,

rr ote es bee ee abe eewe 3,4
Cox v. La.,

ED 17

http.//5newsonline.com/2016/11/07/what-can-you-
bring-to-a-polling-place-cellphones-political-t-
SIN Wars Pus cae crenateetepetsens 17

http://www.chron.com/neighborhood/cyfair-
news/article/Houstonian-wearing-Alaska-T-
shirt-nearly-denied-a-1789897.php.......... 17

https://www.thefire.org/free-speech-zones-then-and-
DE Sat balk ke Wee sdanh suet nee ness eeees 26

Stand Up for Free Speech Litigation Project,
http://www.standupforspeech.com/about/.... . 26

https://www.aclu.org/news/aclu-sues-city-cleveland-
over-rnc-rules-violate-free-speech ........... 27

]
INTEREST OF AMICUS CURIAE'

Justice and Freedom Fund (*JFF”), as amicus
curiae, respectfully urges this Court to reverse the
decision of the Eighth Circuit.

Justice and Freedom Fund is a California non-
profit, tax-exempt corporation formed on September 24,
1998 to preserve and defend the constitutional liberties
guaranteed to American citizens, through education,
legal advocacy, and other means. JFF’s founder is
James L. Hirsen, professor of law at Trinity Law
School and Biola University in Southern California and
author of New York Times bestseller, Tales from the
Left Coast, and Hollywood Nation. Mr. Hirsen is a
frequent media commentator who has taught law
school courses on constitutional law. Co-counsel
Deborah J. Dewart is the author of Death of a
Christian Nation (2010) and holds a degree in theology
(M.A.R., Westminster Seminary, Escondido, CA). JFF
has made numerous appearances in this Court as
amicus curiae.

' The parties have consented to the filing of this brief. Amicus
curiae certifies that no counsel for a party authored this brief in
whole or in part and no person or entity, other than amicus, its
members, or its counsel, has made a monetary contribution to its
preparation or s\ bmission.

2

INTRODUCTION AND
SUMMARY OF THE ARGUMENT

Minnesota has enacted a conteni-based statute
restricting core political speech. Minn. Stat.
§ 211B.11(1). This law cannot withstand even minimal
constitutional scrutiny, regardless of forum
classification. There are several serious flaws.

First, the statute and the Election Day Policy
promulgated by election officials both contain wildly
imprecise language. Unlike Burson v. Freeman, 504
U.S. 191 (1992), which limited “campaign” activities
(id. at 193-194, quoting Tenn. Code Ann. § 2-7-111(b)),
Minnesota sweeps in boundless “political” expression,
whether or not related to the current ballot. Such
imprecision grants officials discretion to place
roadblocks in the path of voters who express viewpoints
they dislike.

Second, the rights of voters are the chief reason for
campaign restrictions at the polls. The Tennessee
statute in Burson restricted a particular class of
speakers—campaign workers, not voters. Instead of
protecting voters, Minnesota’s regulation infringes
their rights, both to vote and to express themselves in
a peaceful, non-disruptive manner.

Finally, this case is about passive, non-verbal
expression (t-shirts, buttons), not the active expression
at issue in Burson (distribution of campaign materials
or solicitation of signatures). There is only a tenuous
link between the Minnesota regulation and the
intimidation, coercion, and election fraud that polling
restrictions are designed to prevent.

3

ARGUMENT

I. THE STATUTE IS A CONTENT-BASED
RESTRICTION ON CORE POLITICAL
SPEECH THAT GRANTS EXCESSIVE
DISCRETION TO OFFICIALS AND
CREATES AN UNREASONABLE RISK OF
VIEWPOINT DISCRIMINATION.

Like the statute at issue in Burson, Minn. Stat.
§ 211B.11(1) “implicates . . . central concerns in our
First Amendment jurisprudence,” including the
“regulation of political speech . . . based on the content
of the speech.” Burson, 504 U.S. at196 (emphasis
added). Political speech is unquestionably at the core of
the First Amendment. “|T]he First Amendment ‘has its
fullest and most urgent application’ to speech uttered
during a campaign for political office.” Eu v. San
Francisco Cty. Democratic Central Comm., 489 U.S.
214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401
U.S. 265, 272 (1971)). “[D)iscussion of public issues and
debate on the qualifications of candidates are integral
to the operation of the system of government
established by our Constitution.” Buckley v. Valeo, 424
U.S. 1, 14 (1976).

The government may not restrict speech because of
“its message, its ideas, its subject matter, or its
content.” Police Department of Chicago v. Mosley, 408
U.S. 92, 95 (1972). Minnesota has enacted an
admittedly “content-based regulation because it only
prohibits badges, buttons, and insignia with a political
message.” Minn. Majority v. Mansky, 789 F. Supp. 2d
1112, 1120(D. Minn. 2011). It applies to all viewpoints
but censures “an entire topic”—political speech. Cons.
Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 537

4

(1980); Burson, 504 U.S. at 197; Reed v. Town of
Gilbert, 135 S. Ct. 2218, 2223 (2015).

A. The Statute Is Imprecise, Granting
Officials Broad Discretion To Determine
What Is “Political” And Turn Voters
Away.

In today’s politically polarized atmosphere,
legislators must guard against overstepping
constitutional bounds. “Precision of regulation must be
the touchstone in an area so closely touching our most
precious freedoms.” NAACP v. Button, 371 U.S. 415,
438 (1963). Minnesota’s broad regulatory scheme is a
prime example of the imprecision that characterizes
many state laws regulating speech at the polls. It
sweeps in benign, passive expression. Instead of
choosing “a less drastic way of satisfying its legitimate
interests,” Minnesota has enacted “a legislative scheme
that broadly stifles the exercise of fundamental
personal liberties.” Kusper v. Pontikes, 414 U.S. 51, 58-
59 (1973).

Virtually all states apply some restrictions around
polling places. Terminology varies. Many use the word
“electioneering,” but definitions and breadth vary
widely.” Some states, as in Burson, use the term

* Ar. Code Ann. § 7-1-103(a) (9) (A); Del. Code Ann. tit.15, § 4942(d)
(includes wearing items referring to “issues” or “partisan topics,”
and “political discussion of issues” as well as candidates or
“partisan topics”); D.C. Code § 1-1001.10(b\ 12 A); Idaho Code
§ 18-2318(1); 10 Ill. Comp. Stat. § 5/17-29%a) (“electioneering or
soliciting of votes or engaging in any political discussion”); 10 II.
Comp. Stat. § 5/7-41(c); Ind. Code Ann. § 3-14-3-16 (extends to
clothing, buttons); lowa Code § 39A.4(1)a)(1); Md. Elec. Law Code

5

“campaign.” Other states, like Minnesota, employ the
term “political. A few of these states utilize both
“campaign” and “political.”” Other states use more
general language,° or even loitering laws.’

Ann. § 16-206(a) (10); Neb. Rev. Stat. § 32-1524(2); N.M. Stat. Ann.
§ 3-8-77A; N.Y. Elec. Law § 8-104; Okl. Stat. tit. 26, § 7-108; Or.
Rev. Stat. § 260.695(2) (“electioneering need not relate to the
election being conducted”); 25 Pa. Cons. Stat. Ann. § 3060(c); Utah
Code Ann. § 20A-3-501(2\a) (oral, printed, or written); Wyo. Stat.
§ 22-26-113 (“any form of campaigning”); Wis. Stat. § 12.03 (“any
activity which is intended to influence voting at an election”).

* Ar. Code Ann. § 7-1-103(a\9)(A); Me. Rev. Stat. tit. 21-A, § 682;
D.C. Code § 1-1001.10(b\ 12) A); Fla. Stat. § 102.031(4); Ga. Code
Ann. § 21-2-414(a); Haw. Rev. Stat. § 11-132(d); Kan. Stat. Ann.
§ 25-2430(a); La. Stat. Ann. § 18:1462(A\(3); Md. Elec. Law Code
Ann. § 16-206(a) (10); N.H. Rev. Stat. Ann. § 659:43(1); N.M. Stat.
Ann. § 3-8-77A; N.C. Gen. Stat. § 163A-1134; Ohio Rev. Code
§ 3501.35(A\(1); S.C. Code Ann. § 7-25-180; S.D. Codified Laws
§ 12-18-3; Tenn. Code Ann. § 2-7-111(b\(1) (upheld in Burson); Vt.
Stat. Ann. tit. 17, § 2508; Va. Code Ann. § 24.2-604(D); Wyo. Stat.
§ 22-26-113 (also regulates “electioneering”).

* Alaska Stat. § 15.56.016(a)(2\(B); Fla. Stat. § 102.031(4); NJ.
Stat. Ann. § 19:34-19; N.Y. Elec. Law § 8-104 (“political banner,
button, poster, placard”); N.C. Gen. Stat. § 163A-1134; R.I. Gen.
Laws § 17-19-49; S.C. Code Ann. § 7-25-180; Vt. Stat. Ann. tit. 17,
§ 2508.

* Fla. Stat. § 102.031(4); N.C. Gen. Stat. § 163A-1134 (campaign
literature and political advertising); S.C. Code Ann. § 7-25-180
(campaign literature and political posters); Vt. Stat. Ann. tit. 17,
§ 2508 (campaign literature and political materials).

* Conn. Gen. Stat. § 9-236(a); Mass. Gen. laws ch. 54, § 65; Mich.
Comp. Laws § 168.744(3) (“post, display, or distribute” any
material that “directly or indirectly makes reference to an election,
a candidate, or a ballot question”); Miss. Code Ann. § 23-17-55

6

Some states—but not Minnesota—use broad terms
like “political” or “campaign” but restrict the reach of
their statutes to the candidates, political parties, and
measures that are on the ballot." These criteria help
curb the potential for unbridled discretion.

The bare term “political,” without a limiting
definition or other guidance, is highly susceptible to
improper discretion. The District Court admitted to
“the potential for innumerable issues to become
political . . . because of an ongoing national debate,
local controversy, or relevance to an issue or candidate
on the ballot.” Minn. Majority, 789 F. Supp. 2d at 1128.
The statute “does not include a definition of political”
(id. at 1125) yet the court determined it was “easily
understood” and “not vague” (id. at 1126). Definitions
for “political badge, political button, or other political
insignia” were left to election judges, who drafted an
Election Day Policy using examples they admit are not
all-inclusive:

(“unlawful . . . to distribute or post material in support of or in
opposition to a measure” within the defined area); Rev. Code Wash.
(RCW) § 29A.84.510(1).

’ Code of Ala. § 17-9-50; lowa Code § 39A.4(1)(a)\(1); Ohio Rev. Code
§ 3501.35(A\(1); W. Va. Code § 3-1-37(a).

* Alaska Stat. § 15.56.016(a)(2)B) (“political”); Ar. Code Ann. § 7-1-
103(a) (9) (A) (“campaign”); Ar. Code Ann. §§ 16-411(H), 16-515(1);
Cal. Elec. Code §§ 18370, 319.5; Colo. Rev. Stat. 1-13-714(1); Conn.
Gen. Stat. § 9-236(a); Kan. Stat. Ann. § 25-2430(a) (“campaign”);
Me. Rev. Stat. tit. 21-A, § 682 (“campaign); Mo. Rev. Stat.
§ 115.637(18); Mont. Code Ann. § 13-35-211(3); Nev. Rev. Stat.
§ 293.740; N.D. Cent. Code § 16.1-10-06 (prior version of this
statute was found too broad in Emineth v. Jaeger, 901 F. Supp. 2d
1138 (D. N.D. 2012)); R.I. Gen. Laws § 17-19-49 (“political”).

7

e Any item including the name of a political party
in Minnesota, such as Republican, DFL,
Independence, Green, or Libertarian parties.

e Any item including the name of a candidate at
any election.

e Any item in support of or opposition to a ballot
question at any election.

¢ Issue oriented material designed to influence or
impact voting (including specifically the “Please
1.D. Me” buttons).

¢ Material promoting a group with recognizable
political views (such as the Tea Party,
MoveOn.org, and so on).

Id. at 1118 (emphasis added). The possibilities are
endless. These “vague limiting construction|s] . . . give
lelection| officials alone the power to decide in the first
instance whether a given activity is |political|.” Bd. of
Airport Commissioners v. Jews for Jesus, 482 U.S. 569,
576 (1987). Does “any election” include past and/or
future elections? Would “group|s| with recognizable
political views” sweep in _ religious or other
organizations with convictions about contentious issues
like abortion? What about satire, or past political
slogans slightly altered (“Make America ___ Again”)?
Such lack of clarity “compel|s| the speaker to hedge and
trim” (Thomas v. Collins, 323 U.S. 516, 535 (1945)),
perhaps by wearing plain clothing with no messages,
lettering, pictures, or even colors that might identify a
political party or ideology. Even when voters display
lettering unrelated to any political issue or campaign,
there can still be confusion. In 2012, poll workers in
Colorado and Florida banned student voters wearing
Massachusetts Institute of Technology (M.LT.)
sweatshirts, confusing “M.I.T.” with candidate Mitt

8

Romney. James J. Woodruff Il, Freedom of Speech &
Election Day at the Polls: Thou Doth Protest Too Much,
65 Mercer L. Rev. 331, 332 n. 5, 366 n. 270, 367 n. 271-
273 (Winter 2014).

Minnesota’s use of the term “political” contrasts
with Tennessee’s use of the more limited word
“campaign” in the statute this Court upheld in Burson.
That statute provides in relevant part:

Within the appropriate boundary as established
in subsection (a) [100 feet from the entrances],
and the building in which the polling place is
located, the display of campaign posters, signs or
other campaign materials, distribution of
campaign materials, and solicitation of votes for
or against any person or political party or
position on a question are prohibited.

Burson, 504 U.S. at 193-94 (emphasis added) (quoting
Tenn. Code Ann. § 2-7-111(b) (Supp. 1991)). This Court
emphasized that Burson was a “rare case.” Id. at 211.
It does not support a ban on voters wearing “political
insignia” to the polls. See Minn. Majority v. Mansky,
708 F.3d 1051, 1061-62 (8th Cir. 2013) (Shepherd, J.,
dissenting). As this Court explained, “|w|hether
individuals may exercise their free speech rights near
polling places |under the Tennessee statute] depends
entirely on whether their speech is related to a political
campaign.” Id., quoting Burson, 504 U.S. at 197
(emphasis added). Moreover, as Justice Stevens
observed in his dissent, the Tennessee statute “silences
all campaign-related expression, but allows expression
on any other subject: religious, artistic, commercial
speech, even political debate and solicitation concerning
issues or candidates not on the day’s ballot.” Minn.

9

Majority v. Mansky, 708 F.3d at 1061-62 (Shepherd, J.,
dissenting), quoting Burson, 504 U.S. at 223 (Stevens,
J., dissenting) (emphasis added). Commentators have
noted the potential abuse inherent in the term
“political material” as contrasted with “campaign
material,” including “the name of a religious school” or
common phrases such as “God Bless America,” “Live
Free or Die,” and “Support Our Troops.” Freedom of
Speech & Election Day, 65 Mercer L. Rev. at 346 n. 120,
121. Even the colors red and blue, associated with the
two major political parties, could be swept in. /d. at n.

122.

The broad language of Minnesota’s Election Day
Policy also captures “issue oriented material designed
to influence or impact voting,” with the “Please I.D.
Me” buttons as an example. “Issue advocacy conveys
information and educates.” FEC v. Wisconsin Right to
Life, 551 US. 449, 470 (2007). But “what separates
issue advocacy and political advocacy is a line in the
sand drawn on a windy day.” /d., at 499 (internal
citations and quotation marks omitted). Candidates
and issues are often intertwined, and “laws targeting
political speech are the principal object of the First
Amendment guarantee.” Jd. at 494. The blurred line
between political and issue advocacy “is an indictment
of the statute, not a justification of it.” Jd. Adding
“issue oriented material” to the list of prohibitions only
heightens the constitutional flaws.

10

B. Forum Analysis Does Not Salvage The
Statute.

Challenges to Election Day speech restrictions often
turn on the nature of the forum. Litigants are more
likely to succeed in a public forum. “The Constitution
abhors the misuse of discretion as a license for
arbitrary procedure. .... None of the training manuals
give a precise definition of ‘electioneering.” Reed v.
Purcell, 2010 U.S. Dist. LEXIS 121207, *9 (D. Ariz.
2010) (public forum) (granting temporary restraining
order). In anonpublic forum, challenges are more likely
to fail, e.g., Marlin v. D.C. Bd. Of Elections & Ethics,
236 F.3d. 716, 718 (D.C. Cir. 2000) (nonpublic forum)
(unsuccessful challenge to Board’s broad definition of
“political activity”).

But forum analysis is not conclusive and may not be
the best approach in this case. See, e.g., Ridley v. Mass.
Bay Trans. Auth., 390 F.3d 65, 97 (1st Cir. 2004)
(Tortuella, J., dissenting), citing Laurence H. Tribe,
American Constitutional Law § 12-24, at 988 (2d ed.
1988) (deeming “public forum classifications .. .
unnecessary and unhelpful” in challenges to content-
based restrictions). Even in cases involving nonpublic
fora, a policy that does not provide sufficient criteria to
prevent viewpoint discrimination generally will not
survive constitutional scrutiny:

It is clearly unconstitutional to enable a public
official to determine which expressions of view
will be permitted and which will not or to engage
in invidious discrimination among persons or
groups either by use of a statute providing a
system of broad discretionary licensing power or,
as in this case, the equivalent of such a system by

11

selective enforcement of an extremely broad
prohibitory statute.

Cox v. La., 379 U.S. 536, 557-558 (1965) (emphasis
added). Minnesota has enacted a “broad prohibitory
statute” that should be ruled unconstitutional
regardless of forum classification.

Burson held that the Tennessee statute “bar[red)
speech in quintessential public forums.” Burson, 504
U.S. at 197. In a public forum, the government has an
uphill battle to justify speech restrictions, but may
enact reasonable time-place-manner regulations.
Minnesota’s restriction applies for a short time in a
small space, so at first blush it may appear to fall
within that framework. But because it is content-based,
it cannot qualify even if the space is a nonpublic forum.
“(T|his approach . . . would require some expansion of
(or a unique exception to) the ‘time, place, and manner’
doctrine, which does not permit restrictions that are
not content neutral (§ 2-7-111 prohibits only
electioneering speech).” Jd. at 216 (Scalia, J.,
concurring). In Burson, the majority agreed that the
statute was “not a facially content-neutral time, place,
or manner restriction.” Jd. at 197.

Discretion per se is not “constitutionally fatal.”
Minn. Majority, 789 F. Supp. 2d at 1126, citing Ridley,
390 F.3d at 93 (“mere fact that a regulation requires
interpretation does not make it vague”). In a nonpublic
forum, discretion “must be upheld so long as it is
reasonable in light of the characteristic nature and
function of that forum.” Jd. at 95 (internal quotation
marks omitted); Griffin v. Sec’y of Veterans Affairs, 288
F.3d 1309, 1323-24 (Fed. Cir. 2002) (selectivity and
discretionary access are “defining characteristics of

12

non-public fora”). But viewpoint discrimination is
impermissible in any forum, and “[|wjhen a statute
sweeps more broadly than is warranted by the evil at
which it aims, a concern arises that the legislature .. .
has created an excessively capacious cloak of
administrative or prosecutoria! discretion, under which
discriminatory enforcement may be hidden.” Richard
H. Fallon, Making Sense of Overbreadth, 100 Yale L.dJ.
853, 884 (1991). Here, the statute “applies to all
political material, regardless of viewpoint” (Minn.
Majority, 708 F.3d at 1057), but underlying this facial
neutrality is a weapon inviting officials to favor (or
disfavor) particular viewpoints. In Ridley, officials
rejected religious advertisements based on a policy that
prohibited “demeaning or disparaging” content. Ridley,
390 F.3d at 74. Such a policy creates a wide loophole for
officials to censure viewpoints they dislike. This Court
recently struck down a similar weapon on First
Amendment grounds—the “disparagement” provision
of federal trademark law. See Matal v. Tam, 137 S. Ct.
1744 (2017).

The Federal Circuit observed that no case in this
Court suggests the doctrine of unbridled discretion is
“applicable outside the setting of a public forum,” and
there is thus “no accepted framework” to evaluate such
a challenge in a nonpublic forum.” Griffin, 288 F.3d at
1321-22. But “several cases from [other] circuits|| have
struck down standardless licensing schemes in
nonpublic fora.” Jd. at 1323. See, e.g., Sentinel
Communications Co. v. Watts, 936 F.2d 1189 (11th Cir.
1991) (invalidating Florida scheme giving unfettered
discretion over placement of newspaper racks in
highway rest areas). Unfettered discretion poses
constitutional risks in any forum.

13

The Minnesota statute is also “not a licensing
system allowing the regulation of speech in a public
forum.” Minn. Majority, 789 F. Supp. at 1128. That is
a common context where unbridled discretion is
condemned—but certainly not the only context. “A
principle underlying many of our prior decisions in
various doctrinal settings is that government officials
may not be accorded unfettered discretion in making
decisions that impinge upon fundamental rights.”
Schall v. Martin, 467 U.S. 253, 306-307 (1984)
(Marshall, J., dissenting). It is particularly relevant to
content-based regulations. This Court recently noted
the possibility of “a Sign Code compliance manager
who disliked the Church’s substantive teachings
deploying the Sign Code to make it more difficult for
the Church to inform the public of the location of its
services.” Reed v. Town of Gilbert, 135 S. Ct. at 2229
(content-based sign code subject to strict scrutiny). The
trademark provision this Court invalidated in Matai v.
Tam gave the government carte blanche to render a
“moral judgment|| based solely and indisputably on its
moral judgment{| about the mark|‘s} expressive
content.” In re Tam, 808 F.3d 1321, 1338 (Fed. Cir.
2015). Here, Minnesota empowers election officials to
deny the fundamental right to vote to prospective
voters whose outward apparel displays a disfavored
political view.

14

Il. THESTATUTE IMPEDES THE RIGHTS OF
VOTERS INSTEAD OF PROTECTING
THEM.

This case is principally about the rights of
voters—their right to vote and their right to political
expression. The state interests at stake are designed to
protect those rights. The wide discretion granted to
Minnesota officials risks infringing them:

Although the state may adopt “reasonable and
uniform regulations” regarding the “time and
mode of exercising” the right to vote, that
“afford|s} no warrant for such an exercise of
legislative power, as, under the pretense and
color of regulating, should subvert or injuriously
restrain the right itself.”

Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886), quoting
Capen v. Foster, 29 Mass. 485, 489 (1832).

A. The Rights Of Voters Are Paramount—
The Right To Vote And The Right To
Political Expression.

It is vital to distinguish voters, candidates,
campaign workers, poll workers, and other election
participants. Although the government has “a
compelling interest in securing the right to vote freely
and effectively” (Burson, 504 U.S. at 208), it is the voter
who holds that right, as well as the right to choose
when, where, and/or if to express political views.
Perhaps voters would be wise to avoid outward signs of
political affiliation at the polls, but that is an
individual choice. No voter should be turned away or
prosecuted for engaging in the passive expression
Minnesota prohib.'«

15

In Minnesota, election judges were instructed not to
turn away voters who failed to cover their political
paraphernalia, but “their names and addresses would
be recorded and referred ‘to appropriate authorities.”
Minn. Majority, 789 F. Supp. 2d at 1118. Voters face an
untenable choice—either sacrifice the right to vote or
the right to expression. Neither option is
constitutionally acceptable. The right to vote is a
“fundamental political right, because preservative of all
rights.” Yick Wo v. Hopkins, 118 U.S. at 370. Freedom
of expression is equally important, “especially
expression of political views, [which] ranks near the top
of the hierarchy of constitutional rights.” Cohen v.
California, 403 U.S. 15, 24 (1971).

The rights of voters are primarily at stake in
Minnesota, not the rights of others involved in
elections. Sometimes the rights of candidates are also
impacted by this type of statute. This Court described
Burson as “a particularly difficult reconciliation: the
accommodation of the right to engage in political
discourse with the right to vote — a right at the heart of
our democracy.” Burson, 504 U.S. at 198. But the
action in Burson was not filed by a voter whose rights
were infringed, but by a candidate for office. Jd. at 194.
It was a candidate’s “right to engage in political
discourse” that hung in the balance. The Tennessee
Supreme Court observed that the statute regulated “a
certain category of speakers, campaign workers.”
Freeman v. Burson, 802 S.W.2d 210, 213 (Tenn. 1990).

Candidate rights are important, but they do not
coincide perfectly with the rights of voters. In Burson,
there was an impact on last-minute campaigning,
especially for “candidates with fewer resources,

16

candidates for lower visibility offices, and grassroots
candidates.” Burson, U.S. 504 at 224 (Stevens, J.,
dissenting). Areas near the polls may serve as “a forum
of last resort” for these candidates. See Hill v.
Colorado, 530 U.S. 703, 763 (2000) (Scalia, J.,
dissenting). At the same time, this Court observed
there was ample evidence that political candidates
have used campaign workers to commit voter
intimidation or electoral fraud—evils that the state
legitimately seeks to reduce. Burson, U.S. 504 at 207.
In this case, the concern is not about candidate rights,
but solely about what voters may wear to the polls.

Past elections reveal a multitude of voters having
trouble gaining access to the polls because of what they
were wearing. Kimberly J. Tucker, Article: “You Can't
Wear That To Vote”: The Constitutionality of State
Laws Prohibiting the Wearing of Political Message
Buttons at Polling Places, 32 T. Marshall L. Rev. 61,
82-83 (Fall 2006). The author described her own
frustration at the Virginia polls in 2004, where she was
asked to remove her John Kerry button and even
threatened with arrest when she initiated a
conversation about the First Amendment. /d. at 61. In
Virginia, instructions varied from county to county,
with some calling for removal of buttons (id. at 83 n.
197-198) and others considering it a “matter of free
speech” (id. n. 199-200). Voters in South Carolina were
told to remove their pro-Bush buttons in the polling
area. Id. at 83 n. 194. Voters in both Florida’ and New

* http:/Awww.wptv.com/news/region-c-palm-beach-county/palm-
beach/palm-beach-family-says-they-faced-trouble-at-the-polls-for-
wearing-trump-shirts (last visited 12/27/17). Florida law does not
explicitly prohibit such apparel.

17

Mexico’’ faced extra hurdles at the polls when they
showed up for the November 2016 election wearing
Trump shirts. One woman trying to vote in Austin, TX
in 2012 was compelled to cover her “Vote the Bible”
shirt in order to vote.'' Even shirts “reminiscent of a
party” —“I Miss Bill” — were censured at Arkansas polls
in 2016." Adding to the confusion, non-political
paraphernalia is sometimes mistaken for campaign
material—Dallas Cowboys apparel in Texas when a
stadium-finance issue was on the ballot and Denver
Broncos items in Colorado when a stadium tax issue
was on the ballot. Jd. at 84. Even more bizarre, a voter
in Houston, TX in 2008 almost lost her ability to vote
because she wore a souvenir Alaska shirt ti ut was
misconstrued as support for Sarah Palin.’

These examples are all about voters—not aggressive
campaign workers trying to secure votes or seeking
signatures for a new ballot measure. It seems strange,
and blatantly unconstitutional, that a policy meant to

" http://nbe4i.com/20 16/10/25/woman-not-allowed-to-vote-because-
of-trump-shirt/ (last visited 12/27/17). New Mexico limits
“electioneering” but does not expressly forbid wearing buttons,
shirts, or similar items.

" http//nation.foxnews.com/war-religion/2012/1 1/0 l/woman-forced-
cover-vote-bible-t-shirt-polls (last visited 12/27/17).

http://5newsonline.com/20 16/1 1/07/what-can-you-bring-to- .-
polling-place-cellphones-political-t-shirts-children/ (last visited
12/27/17).

'* http://www.ch on.com/neighborhood/cyfair-
news/article/Houstonian-w earing-Alaska-T-shirt-nearly-denied-a-
1789897.php (last visited 12/27/17).

18

protect voters would be used to impede their access to
the polls.

B. The State’s Interests Are Subservient To
The Rights Of Voters.

Several important state interests have been
advanced to justify campaign-free zones in areas
immediately surrounding the polls:

¢ “the right of . . . citizens to vote freely for the
candidates” (Burson, 504 U.S. at 198)

¢ “the right to vote in an election conducted with
integrity and reliability” (id. at 199)

¢ “protecting voters from confusion and undue
influence” (id.)

¢ “preventing voter intimidation and election
fraud” (id. at 206)

¢ “protect the integrity and reliability of the
electoral process itself” (Anderson v. Celebrezze,
460 U.S. 780, 788, n. 9 (1983) (collecting cases))

¢ “maintain|ing] peace, order, and decorum” at the
polls (Mills v. Alabama, 384 U.S. 214, 218
(1966))

All of these important state interests are designed to
serve the voters and protect their right to vote freely
and peacefully when they go to the polls. Voters also
have the right to be fully informed as they cast their
ballots. Although elections should be conducted in an
orderly manner, this Court held that the state does not
have a legitimate interest ir insulating voters from
Election Day campaigning. Mills v. Alabama, 384 U.S.
at 219 (overturning conviction of newspaper editor who
violated ban on election day editorial endorsements).

19

Minnesota’s regulation of apparel and buttons does
not fit the state’s legitimate interests. As Judge
Shepherd put it in his dissent:

I fail to see how this broad restriction, which
prohibits a voter from wearing any political
emblem, insignia, or slogan that is unrelated to
an issue or candidate on the ballot, would
rationally and reasonably help maintain the
“peace, order, and decorum” of the polling place,
“protect|| voters from confusion or undue
influence,” or “preservile|] the integrity of
|Minnesota’s} election process.”

Minn. Majority, 708 F.3d at 1062 (Shepherd, J.,
dissenting). The connection between the regulation and
the interests served is tenuous at best. It is hardly
disruptive to the election process for a voter to quietly
approach the ballot box wearing a shirt or button an
official deems “political,” according to Minnesota's
nebulous standard. The state may not unnecessarily
restrict constitutionally protected liberties even in
pursuit of legitimate interests. Anderson v. Celebrezze,
460 U.S. at 806. The infringement is even more
egregious where the state pursues illegitimate
interests. See Anderson v. Spear, 356 F.3d 651, 658
(6th Cir. 2004) (500-foot buffer zone around polling
places was facially overbroad where the evidence
suggested the government intended to cut off all
electioneering speech rather than to prevent voter
intimidation and corruption).

Under narrowly defined circumstances, depending
on the place or the government’s role, it may be

20

appropriate to limit political expression—even on
clothing or accessories. It may depend on the place, and
often other rights or legal doctrines are implicated:

¢ Courtroom - Berner v. Delahanty, 129 F.3d 20,
27 (1st Cir. 1997) (upholding trial judge’s order
for attorney to remove political button in the
courtroom, which must be an absolutely fair and
neutral environment)

¢ Political Rally - Sistrunk v. City of Strongsville,
99 F.3d 194 (6th Cir. 1996) (upholding ban on
wearing pins for opposing candidate |Clinton| at
a political rally [Bush]) (implicates rights of
association )

¢ VA Medical Centers - Preminger v. Sec’y of
Veterans Affairs, 517 F.3d 1299, 1314 (Fed. Cir.
2008) (rejecting unbridled discretion challenge to
ban on “demonstrations” at VA Medical Centers
in light of the need “to maintain a place of
healing and rehabilitation for veterans”)

¢ National Cemeteries - Griffin, 288 F.3d at 1324-
1325 (veterans denied right to display
Confederate flag in national cemetery because
the government had reasonable discretion to
ensure preservation of the commemorative
functions of national cemeteries) (implicates
government speech)

Sometimes the government does not act as a regulator,
but assumes another role:

¢ Employer - Broadrick v. Oklahoma, 413 U.S.
601, 618 (1973) (upholding restriction on
political expression of state employees during

21

working hours, including political buttons and
bumper stickers)

¢ Editor - Arkansas Educ. Television Comm'n v.
Forbes, 523 U.S. 666 (1998) (candidate debate)
(editorial discretion to restrict debates to
candidates who received objective support from
the public)

¢ Editor for Dept. of Defense Publications - Bryant
v. Gates, 532 F.3d 888 (D.C. Cir. 2008) (rejecting
vagueness challenge to political ad ban in DOD
publication) (implicates government speech)

Polling places are a unique environment. While some
restrictions on active campaigning may be needed to
preserve an orderly process for voters, Minnesota’s
broad ban on political apparel tends to imperil the
rights of voters rather than protecting those rights.

C. The Passive Speech Of Voters Is Not An
Appropriately Targeted Evil.

Minnesota appears more concerned about voters
who might be intimidated by the mere sight of a button
or t-shirt on another voter, rather than voters who may
be turned away from the polls because of the passive
expression on their clothing or accessories:

The Court concludes that prohibiting apparel
that expresses support for a political ideology is
reasonably related to the legitimate state
interest of “maintainling| peace, order, and
decorum” at the polls.

22

Minn. Majority, 789 F. Supp. 2d at 1124 (following a
discussion concluding that the Tea Party is “political”
and the “Please 1.D. Me” pins might confuse voters).

This conclusion is astounding in light of the passive
nature of t-shirts, buttons, and similar items. Clothing
is a means of communication protected by the First
Amendment. See Cohen v. California, 403 U.S. 15 (t-
shirt containing offensive expletive). This Court has
warned that a complete ban on a species of
communication “can be narrowly tailored . . . only if
each activity within the proscription’s scope is an
appropriately targeted evil.” Frisby v. Schultz, 487 U.S.
474, 485 (1988) (upholding residential picketing
ordinance) (emphasis added). Unlike the ordinance in
Grayned v. City of Rockford, 408 U.S. 104 (1972), which
punished only disruptive conduct around schools in
session, Minnesota punishes passive, peaceful
expression without any evidence of disruption,
coercion, undue influence, intimidation, fraud, or
similar results. This is contrary to “our system, [where]
undifferentiated fear or apprehension of disturbance is
not enough to overcome the right to freedom of
expression.” Tinker v. Des Moines Indep. Comm. School
Dist., 393 U.S. 503, 508 (1969). Just as the students in
Tinker did not surrender their First Amendment rights
at the school gate, “voters do not surrender such rights
at the polling room door.” “You Can’t Wear That To
Vote”, 32 T. Marshall L. Rev. at 81 (emphasis added).

23

Many states have either enacted “button” laws or
applied broad statutes to prohibit passive expression.‘
Some of them include language that would limit
government discretion, such as_ restricting the
prohibition to candidates or measures on the ballot.'”
Unfortunately, a few courts have upheld these
restrictions on passive expression. The Fifth Circuit
upheld Louisiana’s “total ban on politicking,” including
“buttons and T-shirts,” within a 600-foot radius of the
polling place. Schirmer v. Edwards, 2 F.3d 117, 122-23
(5th Cir. 1993). In Michigan, a district court upheld a
directive allowing election inspectors to ask Michigan
voters to remove campaign buttons or cover up clothing
bearing a campaign slogan or candidate’s name, while
admitting that “the wearing of political paraphernalia
is speech protected by the First Amendment.”
AFSCME, Council 25 v. Land, 583 F. Supp. 2d 840, 847
(E.D. Mich. 2008). The D.C. Circuit upheld regulations

* Cal. Elec. Code §§ 18370, 319.5; Del. Code Ann. tit.15, § 4942(d)
(includes items referring to “issues”); 3 D.C.M.R. § 708.8 (Board
regulation applied statute to apparel); Ind. Code Ann. § 3-14-3-16;
Kan. Stat. Ann. § 25-2430(a); Me. Rev. Stat. tit. 21-A, § 682(3);
Mich. Comp. Laws § 168.744(3); Minn. Stat. § 211B.11(1); Mont.
Code Ann. § 13-35-211(3); Nev. Rev. Stat. § 293.740; N.H. Rev.
Stat. Ann. § 659:43(1); N.J. Stat. Ann. § 19:34-19 (may not display,
sell, give or provide badge, button, or other items to be worn); N.Y.
Elec. Law § 8-104(1); R.1. Gen. Laws § 17-19-49; S.C. Code Ann.
§ 7-25-180; Tenn. Code Ann. § 2-7-111(b\(1); Tex. Elec. Code
§ 61.010(a); Vt. Stat. Ann. tit. 17, § 2508(a).

" Cal. Elec. Code § 319.5; Kan. Stat. Ann. § 25-2430(a); Me. Rev.
Stat. tit. 21-A, § 682(3) (expressly allows small buttons with
longest dimension not to exceed 3 inches); Mont. Code Ann. § 13-
35-211(3); Nev. Rev. Stat. § 293.740; R.I. Gen. Laws § 17-19-49;
Tex. Elec. Code § 61.010(a).

24

promulgated by Board of Elections that prohibited
wearing political paraphernalia inside a polling place.
Marlin, 236 F.3d. at 718.

It is particularly disturbing to observe the broad
discretion granted to officials in the Michigan and D.C.
cases, even in the absence of an express statutory
prohibition on apparel. In states like Minnesota, where
the statutory language has no limiting criteria, the law
potentially allows election officials to deny the vote to
persons whose button or t-shirt is unrelated to any
current candidate or ballot issue. Any group with
“identifiable political views” could include a religious
group or other association with strong views about
current issues. Some of the most controversial
“political” topics of modern times have significant
moral and religious implications for voters.

Passive political expression is not tantamount to the
active campaigning at issue in Burson and other cases.
Distribution of campaign materials to voters, or
actively soliciting their signatures, is hardly
comparable to passive expression by voters. “|S|uch
silent speech does not present the harmful effects that
active campaigning creates on a voter's right to be free
from interference.” “You Can’t Wear That To Vote”, 32
T. Marshall L. Rev. at 80. The Sixth and Eleventh
Circuits have both upheld bans on active solicitation
that could disrupt the voting process. United Food &
Commercial Workers Local 1099 v. City of Sidney, 364
F.3d 738, 748 (6th Cir. 2004) (upholding Ohio’s 100-foot
campaign-free zone that prevented individuals from
soliciting signatures on non-ballot related referendum);
Citizens for Police Accountability Political Comm. v.
Browning, 572 F.3d 1213, 1215 (11th Cir. 2009)

25

(upholding Florida law that prohibited soliciting
signatures, as voters exit the polls, for proposed city
charter amendment to be placed on a future ballot).

One of the reasons this Court struck down the
sweeping First Amendment activity ban in Jews for
Jesus is that it would reach considerable non-
disruptive speech, including “the wearing of campaign
buttons or symbolic clothing”—a ban that could not be
justified even in a nonpublic forum. Jews for Jesus, 482
U.S. at 575. And just as “|t|he line between airport-
related speech and nonairport-related speech” was “at
best, murky” in that case (id. at 576), the line between
“political” and non-political is like a line in the sand on
a windy day.

The Oregon Supreme Court wisely summarized the
matter:

The mere passive display of a political button or
badge in a polling place does not constitute
“improper conduct” of the sort contemplated in
Article II, section 8. The silent expression of
political opinion is not coercive. To the extent
that such expression in the polling place might
affect the votes of others, that influence cannot
be deemed constitutionally “undue.”

Picray v. Secretary of State, 140 Or. App. 592, 600
(1996).

26

Wl. THE EIGHTH CIRCUIT RULING
EXACERBATES A DANGEROUS TREND
TO ESTABLISH “FREE SPEECH ZONES”
THAT IMPERIL FIRST AMENDMENT
RIGHTS.

The “campaign free zone” in this case resembles the
free speech zones that originated on college and
university campuses following the student activism of
the 1960s. Joseph D. Herrold, Note: Capturing the
Dialogue: Free Speech Zones and the “Caging” of First
Amendment Rights, 54 Drake L. Rev. 949, 951
(Summer 2006). Some zones capture only protests.
Others attempt to confine all First Amendment activity
to a designated area, effectively silencing free speech.
Free speech zones should have been laid to rest with
this Court’s decision in Jews for Jesus three decades
ago. “On its face, the resolution at issue in this case
reaches the universe of expressive activity, and, by
prohibiting all protected expression, purports to create
a virtual ‘First Amendment Free Zone’ at LAX.” Jews
for Jesus, 482 U.S. at 574. The same is true of free
speech zones, yet the practice has spilled over into
other contexts, including the world of politics.

These constitutionally questionable speech-free
zones have generated a mountain of litigation over the
years, with some measurable progress toward their
elimination on school campuses.'° Public universities,
widely regarded as the “marketplace of ideas,” are one

See, e.g., https://www.thefire.org/free-speech-zones-then-and-
now/ (last visited 12/27/17); Stand Up for Free Speech Litigation
Project, http://www.standupforspeech.com/about/ (last visited
12/27/17)

27

of the last places where such government censorship
should ever occur. “The vigilant protection of
constitutional freedoms is nowhere more vital than in
the community of American schools.” Shelton v. Tucker,
364 U.S. 479, 487 (1960). The zones enable school
officials “to keep undesired or unpopular expressive
activity out of mainstream campus life.” Capturing the
Dialogue, 54 Drake L. Rev. at 956. In recent years,
even political conventions’’ and polling places have
followed the trend, creating similar opportunities for
officials to abuse discretion and suppress disfavored
viewpoints. “Political-free zones .. . create[| an
atmosphere that is completely sterilized of any political
messaging.” Freedom of Speech & Election Day, 65
Mercer L. Rev. at 343. In “politically restricted zones”
there is more flexibility and “voters are allowed to wear
campaign, party, or initiative paraphernalia.” /d.
Minnesota has created a highly restrictive zone using
a policy that grants election officials free reign to chill
voter expression based solely on the silent messages
displayed on the buttons and clothing of voters.

"' Capturing the Dialogue, 54 Drake L. Rev. at 949 (government-
imposed free speech zones widely reported in the media during
2004 Democratic and Republic National Conventions);
https://www.aclu.org/news/aclu-sues-city-cleveland-over-rnc-rules-
violate-free-speech (last visited 12/27/17).

28
CONCLUSION

For all of the foregoing reasons, the Minnesota
statute should be declared unconstitutional and this
Court should reverse the Eighth Circuit ruling.

Respectfully submitted,

James L. Hirsen

Counsel of Record
505 S. Villa Real Drive, Suite 208
Anaheim Hills, CA 92807
(714) 283-8880
james@jameshirsen.com

Deborah J. Dewart

620 E. Sabiston Drive
Swansboro, NC 28584-9674
(910) 326-4554
debcpalaw@earthlink.net

Counsel for Amicus Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0752%3A18. Public record. Not legal advice.