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 Gnited States

MINNESOTAVOTERS ALLIANCE, et ail.,

Petitioners,

Vv.

JOE MANSKY, IN HIS OFFICIAL CAPACITY AS ELECTIONS

MANAGER FOR Ramsey County, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF FOR THE STATES OF TENNESSEE, INDIANA,

KANSAS, LOUISIANA, MICHIGAN, MISSISSIPPI,

MONTANA, NEBRASKA, RHODE ISLAND, TEXAS, AND

UTAH AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Herbert H. Slatery III Andrée S. Blumstein

Attorney General and Solicitor General

Reporter State of Tennessee Counsel of Record

Sarah K. Campbell Jonathan David Shaub

Special Assistant to the Assistant Solicitor General

Solicitor General and the

Attorney General Office of the Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 532-3492

andree. blumstein@ag.tn.gov

Counsel for Amicus Curiae State of Tennessee

Additional Counsel Listed In Signature Block

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. iii

INTERESTS OF AMICI CURIAE .............. 1

SUMMARY OF THE ARGUMENT ............. 2

PEE We Cece cecbecvectsesbececteseceesn 4

L. When Applied to a State Statute, the

Overbreadth Doctrine Must Incorporate

Deference to the State’s Sovereignty ....... 4

A. This Court’s construction of a state

statute as part of the overbreadth inquiry

must account for the State’s sovereign

B. This Court should ensure state courts

have an opportunity to construe state

statuves before invalidating them as

SE 6d db éewkdedcauscouneceess 8

C. The procedural posture of this case should

preclude the Court from declaring the

Minnesota statute overbroad ......... 14

Il. This Court Should Reject Petitioners’

Invitation To Abandon Traditional Forum

III.

il

. Forum analysis appropriately takes into

account the government’s strong interest

in preserving government property for its

PED “ica cccswesestevesecacs 23

. Subjecting to strict scrutiny all laws

regulating political speech in nonpublic

forums would significantly interfere

with the States’ core government

GUEEEEIUED bo cc ccccccccscesceccesees 25

This Court Should Reject Petitioners’

Invitation To Limit Burson v. Freeman to

Laws Prohibiting Active Electioneering ... 27

A. The Tennessee law challenged in Burson

prohibited both active electioneering

and the passive display of campaign

SE 44. dba ved UEs écanedcbeaads 28

. Burson’s First Amendment analysis was

not limited to regulation of active

electioneering and did not turn on any

distinction between active and passive

. Petitioners’ constitutional right to free

speech must be reconciled with the State’s

compelling interest in protecting its

citizens’ constitutional right to vote .... 33

GEES co ccccccvnccececcesoncevcecs 37

ili

TABLE OF AUTHORITIES

CASES

Adderley v. Florida,

Se ED n'a te cnsucevesscceses 19, 20

Arizonans for Official English v. Arizona,

GEEED oc cvcccdecccevceeeses passim

Ark. Educ. Television Comm’n v. Forbes,

Se ED ccc cctcevesceeccess 21, 22

Babbit v. United Farm Workers Nat'l Union,

SEED wc bes esedecceceesoseun 13

Baggett v. Bullitt,

Dc cbceskeeeteepueseues 13

Bd. of Airport Comm’rs of City of L.A. v. Jews for

Jesus, Inc., 482 U.S. 569 (1987) ......... 11, 12

Broadrick v. Oklahoma,

413 U.S. 601 (1973) .............. 7, 14, 15, 18

Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985) .............4.. 11, 14, 15

Burson v. Freeman,

604 U.S. 191 (1992) ............ ee eees passim

Carreon v. Ill. Dep’t of Human Servs.,

395 F.3d 786 (7th Cir. 2005) ............... 25

City of Houston v. Hill,

CE ee 12

Cohen v. California,

i ge Ue eee ek panew es 22

iv

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

Se DE Secu bh eVe arava e ews 23, 24

Davenport v. Wash. Educ. Ass’n,

6 6 oe ob 600 6.605 o 08.c Re KEs 19

Dombrowski v. Pfister,

380 U.S. 479 (1965) ............02 ees 11, 12

Erznoznik v. City of Jacksonville,

EE ch ca dosasecrcticsoesete 13

Fighting Finest, Inc. v. Bratton,

95 F.3d 224 (2d Cir. 1996) ................. 25

Freeman v. Burson,

802 S.W.2d 210 (Tenn. 1990)............... 30

Greer v. Spock,

424 U.S. 828 (1976) ............. 20, 21, 23, 24

Harrison v. NAACP,

ED ovecvccccscsaveeaeas 8,13

Hill v. Colorado,

re oes cagen ee cee eebe cas 9

Huggins v. Isenbarger,

798 F.2d 203 (7th Cir. 1986) .............. 7,8

Huminshki v. Corsones,

396 F.3d 53 (2d Cir. 2005) ................. 25

Int'l Soc’y for Krishna Consciousness, Inc. v. Lee,

Se EEE ic ocesccrovecevcceecn 23, 24

Johnson v. City of Fort Wayne,

91 F.3d 922 (7th Cir. 1996) ................ 26

v

Jones v. N.C. Prisoners’ Labor Union, Inc.,

Se TD |» on a &% 0 659.004 ova dees 26

L.A. Police Dep't v. United Reporting Publ’g Corp.,

EE Wie Wlicceeeseuenesnecees 17

Lehman v. City of Shaker hvights,

418 U.S. 298 (1974) .... 19, 20, 26, 28, 33, 34, 35

Low Income People Together, Inc. v. Manning,

615 F. Supp. 501 (N.D. Ohio 1985) .......... 26

Marlin v. D.C. Bd. of Elections & Ethics,

236 F.3d 716 (D.C. Cir. 2001) ........ 24, 25, 27

Massachusetts v. Oakes,

EE 6 ac dines eweecncnsvees 9, 10

Members of City Council of L.A. v. Taxpayers for

Vincent, 466 U.S. 789 (1984) .......... 6, 21, 23

Mills v. Alabama,

nn . 3 oes ice bane kegs Jae ee 19

Morse v. Frederick,

ED 5.06 occ ens bes en taeveees 28

New York v. Ferber,

Se ED 6a ce tccevécrveda 10, 15, 17

Osborne v. Ohio,

ED < an do 4 o sik'@ bee e-0'e be D 9,10

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

GR GED wv ccc ccccccescens 19, 23, 24

Thornhill v. Alabama,

ec 6 oe SS ween 9

United States v. Kokinda,

a neaeeeee 21, 24

United States v. Stevens,

PED nce ccc cccccnss 4, 5, 8,9, 17

United States v. Williams,

ee ee keds akake es 4, 5,7

Virginia v. Am. Booksellers Ass'n,

oes. eas d's w etiseae awl 5

Virginia v. Hicks,

Ne ol eee heeews 6, 9, 10

Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442 (2008) ............... 5, 16

Webb v. Webb,

ee eS ace eh bee 4

Wesberry v. Sanders,

wae eee ee 24

STATUTES

eC SE nk cece wseseeesewees 7

eB 8) re passim

a does cee we ewe 11

Tenn. Code Ann. § 2-7-111(b) .............. 28, 29

OTHER AUTHORITIES

Richard H. Fallon, Jr., Making Sense of

Overbreadth, 100 Yale L.J. 853 (1991) ..... 9,11

Stephen M. Shapiro et al., Supreme Court Practice

ST. chavceunetapscdaevieneuecs 17

1

INTERESTS OF AMICI CURIAE

Amici curiae—the States of Tennessee, Indiana,

Kansas, Louisiana, Michigan, Mississippi, Montana,

Nebraska, Rhode Island, Texas, and Utah’—submit

this brief in support of Respondents because the States

have a significant interest in ensuring that the First

Amendment overbreadth doctrine is applied in a

manner that respects and furthers state sovereignty,

including the authority of state courts to interpret state

laws. Amici States also have a strong interest in

preserving their ability to enact reasonable and

viewpoint-neutral restrictions on speech inside

nonpublic forums, including inside polling places to

protect their citizens’ right to vote.

‘ No counsel for any party authored this brief, in whole or in part,

and no person or entity other than Amici contributed monetarily

to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

This Court should decline to hold Minnesota’s

statute regulating speech inside a polling place facially

overbroad under the First Amendment.

1. When a state statute is challenged under the

First Amendment as facially overbroad, our

constitutional system of dual sovereignty requires that

the State be afforded an opportunity to exercise its

sovereign authority to definitively interpret its own

law. Petitioners’ overbreadth challenge rests on

hypotheticals and conjecture about speech Minn. Stat.

§ 211B.11(1) might reach if it is interpreted

expansively. But the mere plausibility that a statute

might have some unconstitutional applications if

interpreted broadly is insufficient to establish

overbreadth; instead, the unconstitutional applications

of a statute must be substantial in number, realistic,

and grounded in actual fact. Minnesota officials have

explained the meaning of Section 211B.11(1), and this

Court should defer to that interpretation. If it declines

to do so, the Court should at least certify the

construction of the statute to the Minnesota Supreme

Court before taking the extraordinary step of declaring

Section 211B.11(1) facially overbroad. Nor should

petitioners be permitted to base their overbreadth

challenge »n the very applications of the statute that

were at issue in this case. The Eighth Circuit held

Section 211B.11(1) constitutional as applied to

petitioners, and petitioners strategically did not ask

this Court to review that as-applied holding. If Section

211B.11(1) is in fact unconstitutional as applied to

petitioners, then the strong medicine of the

overbreadth doctrine is not warranted.

3

2. This Court should reject petitioners’ invitation

to abandon traditional forum analysis. Contrary to

petitioners’ assertions, this Court has consistently

applied forum analysis in reviewing First Amendment

challenges to regulations of speech on government

property, including regulations that implicate political

speech. Forum analysis is necessary because even

protected speech is not equally permissible in all

places. The First Amendment does not mandate that

all government property be made available for

unfettered First Amendment expression. Rather, the

government, like a private owner of property, has the

power to preserve the use of its property for its

intended purpose, including by enacting reasonable

and viewpoint-neutral limits on expression. Forum

analysis ensures that the important functions served

by properties under the control of state and local

governments—polling places, prisons, police and fire

stations, and public hospitals, just to name a few—will

not be needlessly disrupted.

3. This Court should likewise reject petitioners’

attempt to limit Burson v. Freeman, 504 U.S. 191

(1992), to laws prohibiting active electioneering. Like

many other state laws, the Tennessee statute that was

challenged in Burson prohibited—and still prohibits—

not only active campaigning, but also the passive

display of campaign materials, including shirts,

buttons, and hats. The Burson Court was well aware

of the statute’s reach, and the reasoning it adopted in

upholding the statute did not distinguish in any way

between active and passive speech. Nor would such a

distinction make sense; passive speech can be just as

powerful as active speech. Burson’s reasoning instead

reflected a reconciliation of two rights: the right to free

4

expression and the right to vote. That reasoning

applies with equal force here and dictates that

Minnesota’s statute is a reasonable means of protecting

the right to vote.

ARGUMENT

1. When Applied to a State Statute, the

Overbreadth Doctrine Must Incorporate

Deference to the State’s Sovereignty.

As it comes before the Court, this case involves only

a facial challenge to a state statute based on its alleged

overbreadth. Overbreadth is manifestly “strong

medicine that is not to be casually employed.” United

States v. Williams, 553 U.S. 285, 293 (2008) (internal

quotation marks omitted). “(T]he first step in

overbreadth analysis is to construe the challenged

statute; it is impossible to determine whether a statute

reaches too far without first knowing what the statute

covers.” United States v. Stevens, 559 U.S. 460, 474

(2010) (quoting Williams, 553 U.S. at 293). But that

step is fundamentally different when a state statute

has been challenged. In our constitutional system of

dual sovereignty, States retain the sovereign authority

to interpret their laws definitively—authority this

Court lacks. See Webb v. Webb, 451 U.S. 493, 500

(1981). Petitioners ignore this fundamental fact, but it

has significant ramifications for the application of the

overbreadth doctrine in this case and the propriety of

this Court’s review.

5

A. This Court’s construction of a state

statute as part of the overbreadth

inquiry must account for the State’s

sovereign interpretation.

To demonstrate the overbreadth of Minn. Stat.

§ 211B.11(1), petitioners must show that “a substantial

number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimately sweep.”

Stevens, 559 U.S. at 473 (quoting Wash. State Grange

v. Wash. State Republican Party, 552 U.S. 442, 449 n.6

(2008)). In an attempt to meet that burden, petitioners

have relied primarily on three types of evidence: (1) the

“fanciful hypotheticals” that commonly infect

overbreadth challenges, Williams, 553 U.S. at 301;

(2) phrases—many of which are taken out of context—

from the opinions below describing the potential

applications of the statute or the plaintiffs’ assertions

about it; and (3) statements made in the context of this

litigation in briefs and at oral argument, cf. Virginia v.

Am. Booksellers Ass’n, 484 U.S. 383, 398 (1988)

(Stevens, J., concurring in part and dissenting in part)

(“A matter as important as the constitutionality of a

state statute should not be decided on the basis of an

advocate’s concession during oral argument|.|”). See

Pet. Br. 23-29. All of this evidence culminates in

petitioners’ conclusion that “[t]he amount of protected

speech that Section 211B.11(1) can plausibly ban .. . is

truly staggering.” Pet. Br. 28 (emphasis added).

Petitioners’ fundamental error lies in the word

“plausibly.” Plausibility is insufficient. Petitioners

bear the burden of demonstrating substantial

overbreadth “from the text of [the law] and from actual

fact.” Stevens, 559 U.S. at 484 (Alito, J., dissenting)

6

(alterations and emphasis in original) (quoting Virginia

v. Hicks, 539 U.S. 113, 122 (2003)). And, “[sjimilarly,

‘there must be a realistic danger that the statute itself

will significantly compromise recognized First

Amendment protections of parties not before Court.”

Id. (emphasis in original) (quoting Members of City

Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789,

801 (1984)). Petitioners seek to lighten their burden

from “realistic” to “plausible” and, in so doing, subvert

the overbreadth doctrine. Instead of proving “from

actual fact” that a substantial number of “realistic”

applications of Section 211B.11(1) would be

unconstitutional, as judged in relation to its legitimate

sweep, petitioners find it sufficient to demonstrate that

a collection of cherry-picked phrases and responses to

litigation hypotheticals make it “plausible” that the

statute could be interpreted broadly.

Mere plausibility is particularly inadequate when

this Court is asked to declare a state statute facially

unconstitutional. Requiring petitioners’ hypotheticals

to be “realistic” and grounded in “actual fact” is vital to

protecting the State’s sovereign interests in the

overbreadth inquiry. Relegated almost entirely to

various string citations in petitioners’ brief is the

official state policy issued to provide guidance on the

proper application of Section 211B.11(1). Pet. Br. 23-

26. Petitioners barely address its text, let alone

undertake an analysis of the “actual fact” of its

application in the State of Minnesota. In a nod to their

burden, petitioners do valiantly assert that “(nJone of

[their evidence] is hyperbole,” because “[rjeports

abound of polling officials applying political apparel

bans to turn away or penalize voters for wearing

‘political’ t-shirts at polling areas.” Pet. Br. 27. But

7

none of those abundant “reports” involve Minnesota, let

alone the Minnesota statute at issue here. And

petitioners never demonstrate that similar applications

would be “realistic” in Minnesota.

Respondents—who include the Secretary of State of

Minnesota, the individual authorized by Minnesota law

to provide guidance about Section 211B.11(1)—provide

a specific, detailed interpretation of Section 211B.11(1)

that is grounded in “actual fact” and “realistic.” Resp.

Br. 17-24. Before employing the “strong medicine” of

the overbreadth doctrine to invalidate this state law in

its entirety, Williams, 553 U.S. at 293 (internal

quotation marks omitted), this Court must give due

deference to that official interpretation. See Broadrick

v. Oklahoma, 413 U.S. 601, 618 (1973) (“Surely a court

cannot be expected to ignore [State officials’)

authoritative pronouncements in determining the

breadth of a statute.”). Because no Minnesota court, let

alone the Minnesota Supreme Court, has opined on the

scope of the challenged law, “the prevailing

construction is the one of the Executive Branch” of

Minnesota’s government, and “disregard/ing) the

executive’s views would raise profound questions in a

federal system, one in which states, rather than the

national government establish the meaning of state

law.” Huggins v. Isenbarger, 798 F.2d 203, 209 (7th

Cir. 1986) (Easterbrook, J., concurring). The

Minnesota Secretary of State issued an authoritative

interpretation of Section 211B.11(1). See Minn. Stat.

§ 204B.27(2); Resp. Br. 22-23 & n.14. And based on

this construction, which was consistent with prior

interpretations of the statute, Minnesota officials

implemented the law. Resp. Br. 22-24. Accordingly,

this Court “should hesitate” before “conclud|ing] that

8

‘[Minnesota’s} Executive Branch does not understand

state law.” Arizonans for Official English v. Arizona,

520 U.S. 43, 76 n.30 (1997) (quoting Huggins, 798 F.2d

at 2010 (Easterbrook, J., concurring)).

The first step of the overbreadth inquiry—statutory

construction—is, in large part, the determinative step

in the inquiry. Even when a federal statute is at issue,

this Court mandates that the construction include only

realistic applications grounded in actual facts. When

a state statute is at issue, those requirements assume

paramount importance because they serve to protect

the State’s sovereign authority to construe and

implement its own statutes. Out of respect for that

sovereignty, this Court should hesitate before

invalidating a state statute as facially unconstitutional

based on petitioners’ conjecture and carefully curated

phrases.

B. This Court should ensure state courts

have an opportunity to construe state

statutes before invalidating them as

overbroad.

Petitioners ask this Court to do something

extraordinary: declare a state statute facially

unconstitutional under the overbreadth doctrine

without allowing the state court an opportunity to

construe the statute and without definitive state court

rulings on the scope of the statute. This Court should

not take that radical step. See Harrison v. NAACP, 360

U.S. 167, 176 (1959) (“[T}he federal courts should not

adjudicate the constitutionality of state enactments

fairly open to interpretation until the state courts have

been afforded a reasonable opportunity to pass upon

them.”). In Stevens, because the challenged provision

9

was “a federal statute, there |wa]s no need to defer to

a state court’s authority to interpret its own law.” 559

U.S. at 474. Not so here. Section 211B.11(1) is a state

statute, and thus there is “a need to defer to [the] state

court’s authority to interpret its own law.” Jd. As

respondents point out, that option is readily available

to the Court in the form of a certified question to the

Minnesota Supreme Court. Resp. Br. 56-58.

From the inception of the overbreadth doctrine, this

Court has ensured that it defers to a State’s sovereign

authority to interpret its law before declaring the law

invalid. In Thornhill v. Alabama, widely regarded as

the first overbreadth case, this Court granted certiorari

to review an Alabama state court decision affirming a

conviction under a loitering statute. 310 U.S. 88, 91

(1940); see Richard H. Fallon, Jr., Making Sense of

Overbreadth, 100 Yale L.J. 853, 863 & n.58(1991). The

Court held the law facially unconstitutional, but

emphasized that it was relying on the State’s

interpretation of the statute, not the Court’s own. The

opinion first noted that the state “courts below

expressed no intention of narrowing the construction

put upon the statute by prior State decisions,”

Thornhill, 310 U.S. at 96, and then concluded that the

statute as “authoritatively construed and applied” by

Alabama courts was overbroad and left “room for no

exceptions,” id. at 99.

Many overbreadth challenges to state statutes have,

like Thornhill, reached this Court on a writ of

certiorari to a state court. See, e.g., Hicks, 539 U.S. at

117-18; Hill v. Colorado, 530 U.S. 703, 711-14 (2000);

Osborne v. Ohio, 495 U.S. 103, 107-08 (1990);

Massachusetts v. Oakes, 491 U.S. 576, 580-81 (1989);

10

New York v. Ferber, 458 U.S. 747, 752 (1982). In those

cases, the state court had already had an opportunity

to construe the statute as part of its overbreadth

analysis, and this Court considered itself bound by that

construction. See, e.g., Hicks, 539 U.S. at 121 (Virginia

Supreme Court’s determination that potentially

unconstitutional part of the statute was not severable

was a “matter of a state law”); Oakes, 491 U.S. at 594

(a “restrictive reading of the statute or its partial

invalidation” was “beyond [the Court’s] power” in light

of the state court’s construction); Ferber, 458 U.S. at

767 (“[T|he construction that a state court gives a state

statute is not a matter subject to our review.”).

Osborne is a paradigmatic example. There,

reviewing a child pornography conviction, the Ohio

Supreme Court adopted a narrowing construction of

the challenged statute. 495 US. at 112-14.

Accordingly, this Court found it unnecessary to resolve

the challenger’s arguments about the scope of the

statute “as written” because “the statute, as construed

by the Ohio Supreme Court on Osborne’s direct appeal,

plainly surviveld] overbreadth scrutiny.” Jd. at 112-13.

This Court also rejected Osborne’s argument that the

Ohio Supreme Court could not narrow the statute in

the context of his appeal, emphasizing that this Court

“hald] long respected the State Supreme Courts’ ability

to narrow state statutes” and that an inability to

“narrow the statute, affirm on the basis of the

narrowing construction, and leave the statute in full

force” would “require a radical reworking of our law.”

Id. 119-20.

By contrast, when this Court reviews an

overbreadth challenge to a state statute on writ of

11

certiorari to a federal court, the “First Amendment

overbreadth doctrine creates a serious risk of judicial

error” because neither this Court nor the lower federal

court can “hold a state statute unconstitutional without

anticipating the meaning that a state court would

assign.” Fallon, supra, at 900. Certification eliminates

that “serious risk of judicial error.” See Arizonans for

Official English, 520 U.S. at 76 (certification and

abstention are “|djesigned to avoid federal-court error

in deciding state-law questions antecedent to federal

constitutional issues”). As Justice O’Connor explained

in the context of an overbreadth challenge to a

Washington law, “[s|peculation by a federal court about

the meaning of a state statute in the absence of prior

state court adjudication is particularly gratuitous

when .. . the state courts stand willing to address

questions of state law on certification from a federal

court.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491,

510 (1985) (O’Connor, J., concurring). If this Court has

concerns about potential applications of Section

211B.11(1), the Minnesota Supreme Court “stands

willing” to address questions about it. Minn. Stat.

§ 480.065(3); cf. Bd. of Airport Comm’rs of City of L.A.

v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987)

(certification was not appropriate “because California

hald| no_ certification procedure”). Instead of

“gratuitous|ly|” employing the “strong medicine” of

overbreadth, this Court should certify a question to the

Minnesota Supreme Court and avoid the “serious risk”

of “federal-court error” that petitioners invite this

Court to commit.

The reasons this Court has in the past rejected

pleas for certification—or its analogue, abstention—do

not apply here. In Dombrowski v. Pfister, this Court

12

declined to abstain because “the interpretation

ultimately put on the [challenged statutes] by the state

courts [would have been] irrelevant,” and because “no

readily apparent construction suggestled] itself as a

vehicle” by which to cure the constitutional defect. 380

U.S. 479, 490-91 (1965). In City of Houston v. Hill, this

Court declined to abstain or certify because the

ordinance at issue was “unambiguous” and “not

susceptible to a limiting construction,” and because

state trial courts had “regularly applied” the ordinance

and had “had numerous opportunities to narrow the

scope of the ordinance” but had not done so. 482 U.S.

451, 468, 470 (1987). And in Jews for Jesus, in addition

to California’s failure to provide for certification, this

Court pointed to the fact that the “words of the

resolution simply leave no room for a narrowing

construction.” 482 U.S. at 575.

These rationales do not apply here; thus “[a] more

cautious approach [is] in order.” Arizonans for Official

English, 520 U.S. at 77. Even if this Court rejects

respondents’ interpretation of Section 211B.11(1),

petitioners do not claim that the term “political” is

“unambiguous”; indeed, they rely on its ambiguity as a

key component of their argument. See, e.g., Pet. Br. 14,

25, 35-36 (characterizing “political” as an “amorphous,”

“malleable” and “vague” term that has “no logical

stopping point”). And because the overbreadth inquiry

depends on the scope of Section 211B.11(1), the

Minnesota Supreme Court’s construction of it would

not only be “relevant” but likely dispositive. Moreover,

if this Court declines to accept respondents’

interpretation of Section 211B.11(1), the statute is

undoubtedly still “susceptible to a _ limiting

construction” and includes ample “room for a

13

narrowing construction.” Finally, no Minnesota courts

have “regularly applied” Section 211B.11(1) or had an

opportunity to adopt a narrowing construction. No

Minnesota court has even had an opportunity to

interpret it. Resp. Br. 4 n.2.

When a state statute is the subject of a facial

overbreadth challenge, it is the State’s prerogative to

determine whether a narrowing construction, when

possible, should be adopted. See Arizonans for Official

English, 520 U.S. at 78-79 (the “cardinal principle” that

a court should consider narrowing constructions

“bear|s) heighted attention when a federal court is

asked to invalidate a State’s law”). This Court must

“proceed with caution and restraint” when a state

statute is at issue because “invalidation may result in

unnecessary interference with a state regulatory

program.” Erznoznik v. City of Jacksonville, 422 U.S.

205, 216 (1975). Accordingly, “the Court has held that

a state statute should not be deemed facially invalid

unless it is not readily subject to a narrowing

construction by the state courts.” Jd. That is not the

case here. As was the case in Babbit v. United Farm

Workers National Union, if this Court rejects

respondents’ interpretation, the “uncertain issue of

state law” that would remain in this case “[turns] upon

a choice between one or several alternative meanings”

of Section 211B.11(1). 442 U.S. 289, 308 (1979)

(alteration in original) (quoting Baggett v. Bullitt, 377

U.S. 360, 378 (1964)). “Accordingly, . . . the

[Minnesota] courts should be ‘afforded a reasonable

opportunity to pass upon’ the section under review.”

Id. (quoting Harrison, 360 U.S. at 176).

14

If this Court declines to accept the construction

provided by state and local officials as respondents or

has concerns that “realistic” applications of the statute

based in “actual fact” intrude substantially on

protected speech, see supra Part I.A., it should certify

a question to the Minnesota Supreme Court about the

statute’s application. Certification to that court for an

authoritative interpretation of the statute is a more

appropriate course than wholesale invalidation. To do

otherwise would be to ignore—indeed, undermine—

principles of state sovereignty. See Arizonans for

Official English, 520 U.S. at 79 (“[A) federal tribunal

risks friction-generating error when it endeavors to

construe a... state Act not yet reviewed by the State’s

highest court.”).

C. The procedural posture of this case

should preclude the Court from

declaring the Minnesota statute

overbroad.

The “strong medicine” of overbreadth is supposed to

be the “last resort” for this Court, Broadrick, 413 U.S.

at 613, an inquiry that permits this Court to consider

applications of the law to third parties only when the

statute may be constitutionally applied to the

challengers in the case, Brockett, 472 U.S. at 502-04.

If the statute’s application to challengers is not

constitutional, the case is “governed by the normal rule

that partial, rather than facial, invalidation is the

required course.” Brockett, 472 U.S. at 504.

Petitioners, through strategic maneuvering, have

attempted to thwart that “required course” and,

contrary to this Court’s instruction, seek to “render

inapplicable the rule that a federal court should not

15

extend its invalidation of a statute further than

necessary to dispose of the case before it.” Jd. at 503.

This Court should not reward such gamesmanship

with the overbreadth doctrine, particularly in a

challenge to a state statute. Although petitioners have

described hypothetical applications of Section

211B.11(1) that are outside of the facts in the

complaint, their overbreadth argument relies

principally on their position—rejected by the Eighth

Circuit—that Section 211B.11(1) is unconstitutional as

applied to passive political expression such as a “Tea

Party” shirt—the precise facts of the sole claim

remaining in this case. See Pet. Br. 24-25; Pet. App. A-

3-A-6. If this Court determines that those applications

are in fact unconstitutional, the “required course” is to

invalidate the statute only partially as applied to the

facts alleged in the complaint. Brockett, 472 U.S. at

504; see also Ferber, 458 U.S. at 769 n.24. That is

because overbreadth analysis is not appropriate when

the statute is susceptible to “partial invalidation.”

Broadrick, 413 U.S. at 613. But petitioners explicitly

declined to seek certiorari from the Eighth Circuit’s as-

applied holding, Pet. i; instead they endeavor to

“compel[]” this Court “to entertain an overbreadth

attack when not required to do so by the Constitution,”

Ferber, 458 U.S. at 767.

Because petitioners have not challenged the Eighth

Circuit’s holding that Section 211B.11(1) is

constitutional as applied to them, this case does not

provide an appropriate vehicle for this Court to resolve

the overbreadth question presented. See Brockett, 472

U.S. at 504. Considering the question of facial

overbreadth is inappropriate if the Court is unable to

16

consider lesser extremes, such as partial invalidation

based on the facts of a particular case. That is

particularly true when a state statute has been

challenged exclusively in federal courts, and the state

courts have had no opportunity to construe the statute.

See Arizonans for Official English, 520 U.S. at 79.

Whatever the validity of the Eighth Circuit’s as-applied

holding, petitioners did not seek this Court’s review of

it. Neither is that question necessarily included in the

question presented. See Resp. Br. 37 1.20.

Accordingly, petitioners should not be permitted to

reframe their as-applied challenge as one of

overbreadth.

Overbreadth “doles] not apply . .. where the parties

fail to describe the instances of arguable overbreadth of

the contested law.” Wash. State Grange, 552 U.S. at

449 n.6. The primary examples of arguable

overbreadth provided in petitioners’ complaint are the

same examples that form the basis for the as-applied

challenge. Compare JA 82-84, with JA 87-89. And the

Eighth Circuit ultimately found Section 211B.11(1)

constitutional as applied to those facts. Pet. App. A-3-

A-6. Accordingly, the Eighth Circuit was correct that

petitioners’ overbreadth challenge must fail because

“the complaint does not allege that there were a

‘substantial number’ of . . . unreasonable applications

in relation to the statute’s reasonable applications.”

Pet. App. D-10.

By not seeking certiorari on that as-applied holding,

petitioners seek to position themselves as plaintiffs to

whom the statute may be applied constitutionally—

thus allowing them to bring an overbreadth claim. At

the same time, they continue to maintain that Section

17

211B.11(1) is unconstitutional as applied to them. See

Pet. Br. 39-40 & n.11. They cannot have it both ways.

Having failed to allow this Court to consider whether

“partial invalidation” of Section 211B.11(1) is possible

based on the “flesh and blood legal problem” presented

by the facts of this case, L.A. Police Dep’t v. United

Reporting Publ’g Corp., 528 U.S. 32, 39 (1999) (quoting

Ferber, 458 U.S. at 768), petitioners cannot claim

overbreadth based on those same or substantially

similar applications. Nor can they demonstrate a

“substantial number” of unconstitutional applications

of Section 211B.11(1), judged in relation to its

“legitimate sweep,” Stevens, 559 U.S. at 473 (internal

quotation marks omitted), by pointing to applications

of the statute judged legitimate by the Eighth Circuit

when they have not sought review of that judgment.

Petitioners should not be permitted to circumvent

the normal progression from as-applied challenge to

overbreadth analysis by strategic gamesmanship,

particularly when the facial validity of a state statute

is at issue. Thus, even if this Court determines that

“realistic” applications of Section 211B.11(1) present

constitutional concerns, see supra Part I.A, and

declines to certify the construction of Section

211B.11(1) to the Minnesota Supreme Court, see supra

Part I.B, the appropriate resolution of this case would

be to dismiss it as improvidently granted because

petitioners have failed to provide this Court the

opportunity to consider a necessary prerequisite to an

overbreadth challenge: the application of Section

211B.11(1) to the “flesh and blood” of the facts of this

case. Cf. Stephen M. Shapiro et al., Supreme Court

Practice 361 (10th ed. 2013) (dismissal of a question as

improvidently granted may occur where the Court

18

“conclude|s} that it cannot reach the question accepted

for review without reaching a threshold question not

presented in the petition”). At the very least, this

Court should follow the “required course” in an

overbreadth challenge and consider the as-applied

challenge first, despite petitioners’ failure to include it

in the question presented. See Broadrick, 413 U.S. at

615-16 (“[W]hatever overbreadth may exist should be

cured through case-by-case analysis of the fact

situations to which its sanctions, assertedly, may not

be applied.”).

Il. This Court Should Reject Petitioners’

Invitation To Abandon Traditional Forum

Analysis.

Petitioners and several of their amici urge this

Court to subject Section 211B.11(1) to strict scrutiny

even though it restricts political speech only in “a

polling place,” a location long considered a nonpublic

forum. See Resp. Br. 29-31. This Court should reject

that invitation and instead reaffirm the well-settled

rule that laws regulating s —even political

speech—in a nonpublic forum are permissible as long

as they are reasonable and viewpoint neutral.

A. This Court has consistently applied

forum analysis in reviewing First

Amendment challenges to laws

regulating political speech.

Speech concerning governmental affairs—including

“discussions of candidates, structures and forms of

government, the manner in which government is

operated or should be operated, and all such matters

relating to political processes’—is undoubtedly

i

19

essential to a well-functioning democracy and uniquely

deserving of First Amendment protection. Mills v.

Alabama, 384 U.S. 214, 218-19 (1966). At the same

time, this Court has long acknowledged that the

“nature of the forum and the conflicting interests

involved” remain “important in determining the degree

of protection afforded” by the First Amendment to the

particular speech at issue. Lehman v. City of Shaker

Heights, 418 U.S. 298, 302-03 (1974) (plurality

opinion).

The degree of scrutiny that a content-based

regulation of political speech warrants thus depends on

the particular forum in which the regulation applies.

Laws that restrict political speech on government

property that has long been devoted to public

expression are subject to the most exacting scrutiny.

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

460 U.S. 37, 45 (1983). But laws that restrict political

speech only on government property that “is not by

tradition or designation a forum for _ public

communication” are subject to a more deferential

standard: they will be upheld as long as they are

viewpoint neutral and reasonable in light of the

purpose served by the forum. Id. at 46; see also

Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 189

(2007).

This Court’s precedents foreclose any argument that

forum analysis is inappropriate for laws regulating

political speech. One of this Court’s earliest cases

employing forum analysis, Adderley v. Florida,

involved political speech. 385 U.S. 39, 40-41 (1966). In

Adderly, the Court upheld the trespass convictions of

dozens of college students who engaged in anti-

20

segregation protests on the property of a county jail.

Id. at 46-47. The Court squarely rejected the premise

of the protestors’ First Amendment argument, which

was that “people who want to propagandize protests or

views have a constitutional right to do so whenever and

however they please.” Jd. at 48. “The State, no less

than a private owner of property,” the Court explained,

“has power to preserve the property under its control

for the use to which it is lawfully dedicated.” Jd. at 47.

A plurality of this Court relied on Adderley a few

years later in Lehman, which upheld a city’s policy of

prohibiting political advertising on its rapid transit

vehicles. 418 U.S. at 303-04 (plurality opinion). The

prohibition did not violate the First Amendment

because the city, acting in its “proprietary capacity,”

could legitimately “limit[] access to its transit system

advertising space in order to minimize chances of

abuse, the appearance of favoritism, and the risk of

imposing upon a captive audience.” Jd. at 304.

Otherwise, “display cases in public hospitals, libraries,

office buildings, military compounds, and other public

facilities would become Hyde Parks open to every

would-be pamphleteer and politician.” Jd.

Just two years later, in Greer v. Spock, this Court

again upheld under forum analysis a regulation of

political speech. 424 U.S. 828 (1976). The regulation

at issue banned “|s|peeches and demonstrations of a

partisan political nature” at Fort Dix Military

Reservation, an area over which the federal

government exercised exclusive jurisdiction. Jd. at 830-

31. While civilians were “freely permitted to visit

unrestricted areas of the reservation,” the pri

mission of Fort Dix was to “provide basic combat

21

training for newly inducted Army personnel.” /d. at

830. The Court rejected as “historically and

constitutionally false” the “notion that federal military

reservations, like municipal streets and parks, have

traditionally served as a place for free public assembly

and communication of thoughts by private citizens.”

Id. at 838. To the contrary, “the business of a military

installation like Fort Dix” was to “train soldiers, not to

provide a public forum.” Jd. The First Amendment

therefore did not prevent Fort Dix from “objectively and

evenhandedly” applying a policy of “keeping official

military activities there wholly free of entanglement

with partisan political campaigns of any kind.” /d. at

839.

Many of this Court’s more recent cases applying

forum analysis likewise have involved challenges to

government regulations implicating political speech. In

Taxpayers for Vincent, for example, a group supporting

a candidate for political office brought a First

Amendment challenge to a municipal ordinance that

prohibited the posting of signs on public property. 466

U.S. at 792-93. This Court rejected the challenge,

finding that the utility poles on which the candidate

wished to post signs were a nonpublic forum and that

the city’s prohibition was reasonable and viewpoint

neutral. Jd. at 814-17. United States v. Kokinda

involved political volunteers who challenged a U.S.

Postal Service regulation that prohibited them from

soliciting outside of a post office. 497 U.S. 720, 723-24

(1990). This Court determined that the sidewalk on

which the volunteers were soliciting was a nonpublic

forum and upheld the regulation as reasonable and

viewpoint neutral. Jd. at 730-37. And in Arkansas

Educational Television Commission v. Forbes, this

22

Court concluded that a candidate debate aired on

public television was a nonpublic forum and upheld the

broadcaster’s viewpoint-neutral decision to exclude

from the debate a candidate with little popular support.

523 U.S. 666, 676-83 (1998).

Petitioners contend that “[t)he public forum doctrine

has never been the exclusive analytical device for

reviewing speech claims,” Pet. Br. 19 (emphasis in

original), but none of the cases they cite in support of

that proposition involved a regulation of speech in a

nonpublic forum. To be sure, the defendant in Cohen

v. California was convicted of breach of the peace for

wearing a “Fuck the Draft” jacket in the corridor of a

public courthouse. 403 U.S. 15, 16 (1971). But the

statute under which he was convicted “appllied)

throughout the entire State” and was not an attempt to

“preserve an appropriately decorous atmosphere in the

courthouse.” Id. at 19. Indeed, Cohen reaffirmed that

“the First and Fourteenth Amendments have never

been thought to give absolute protection to every

individual to speak whenever and wherever he pleases

or to use any form of address in any circumstances that

he chooses” and noted the government’s authority to

draw “distinctions between certain locations.” Id.

Contrary to petitioners’ contention, this Court has

consistently applied a more deferential standard of

review to regulations of speech in a nonpublic forum,

even when those regulations draw content-based

distinctions and even when they implicate political

speech. There is no reason to depart from that settled

practice in this case.

23

B. Forum analysis appropriately takes into

account the government’s strong

interest in preserving government

property for its intended use.

The determination that particular speech is

protected by the First Amendment “merely begins” the

inquiry into whether the government may permissibly

restrict that speech. Cornelius v. NAACP Legal Def. &

Educ. Fund, 473 U.S. 788, 799 (1985); see also Int'l

Soc’y for Krishna Consciousness, Inc. v. Lee, 505 US.

672, 677-78 (1992). That is because “le]ven protected

speech is not equally permissible in all places and at all

times.” Cornelius, 473 U.S. at 799. In particular,

“(njothing in the Constitution requires the Government

freely to grant access to all who wish to exercise their

right to free speech on every type of Government

property without regard to the nature of the property

or to the disruption that might be caused by the

speaker's activities.” Jd. at 799-800; see also Perry, 460

U.S. at 46 (“[T)he First Amendment does not guarantee

access to property simply because it is owned or

controlled by the government.” (internal quotation

marks omitted)); Taxpayers for Vincent, 466 U.S. at 814

(“(T}he mere fact that government property can be used

as a vehicle for communication does not mean that the

Constitution requires such uses to be permitted.”).

Rather, the “Government, ‘no less than a private owner

of property, has power to preserve the property under

its control for the use to which it is lawfully dedicated.”

Cornelius, 473 U.S. at 800 (quoting Greer, 424 U.S. at

836)).

This Court adopted forum analysis “as a means of

determining when the Government’s interest in

24

limiting the use of its property to its intended purpose

outweighs the interest of those wishing to use the

property for other purposes.” Jd. “Implicit in the

concept of the nonpublic forum is the right to make

distinctions in access on the basis of subject matter and

speaker identity.” Perry, 460 U.S. at 49. Although

such distinctions may be “impermissible in a public

forum,” where “all parties have a constitutional right of

access,” they are “inescapable in the process of limiting

a nonpublic forum to activities compatible with the

intended purpose of the property.” Jd. at 49, 55.

Accordingly, the purpose of forum analysis is not to

devalue any particular category of protected speech;

rather, it is to appropriately value the government’s

proprietary interest in preserving property under its

control for its intended use, whether training soldiers,

see Greer, 424 U.S. at 838; providing postal services, see

Kokinda, 497 U.S. at 726-30; or facilitating air travel,

Int'l Soc’y for Krishna Consciousness, 505 U.S. at 682.

The limited purpose served by the nonpublic forum

at issue in this case—the interior of a polling place—is

of course especially important. A polling place exists to

allow each voter to communicate “his own elective

choice . . . privately—by secret ballot in a restricted

space.” Marlin v. D.C. Bd. of Elections & Ethics, 236

F.3d 716, 719 (D.C. Cir. 2001). As a plurality of this

Court recognized in Burson v. Freeman, “(|njo right is

more precious in a free country than that of having a

voice in the election of those who make the laws under

which, as good citizens, we must live.” 504 U.S. 191,

199 (1992) (plurality opinion) (alteration in original)

(quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)).

To ensure that the environs of a polling place remain

compatible with the limited and important purpose of

25

that property, all fifty States have enacted laws

restricting who may access that property and what

expression may occur there. See Burson, 504 U.S. at

206 (plurality opinion) (noting that “all 50 States limit

access to the areas in or around polling places”); Resp.

Br., App. A (compiling text of state polling place

restrictions). Forum analysis dictates that these

restrictions—even those that implicate core political

speech—must be upheld as long as they are reasonable

and viewpoint neutral.

C. Subjecting to strict scrutiny all laws

regulating political speech in nonpublic

forums would significantly interfere

with the States’ core government

operations.

Lower federal courts and state courts have

determined that a wide array of properties owned or

otherwise controlled by state and local governments

qualify as nonpublic forums under this Court’s

precedents. These properties include the interior of a

polling place, see Marlin, 236 F.3d at 719 (“the interior

of a polling place . . . is not available for general public

discourse of any sort”); the interior of a courthouse, see,

e.g., Huminski v. Corsones, 396 F.3d 53, 91 (2d Cir.

2005) (“The function of a courthouse and its courtrooms

is principally to facilitate the smooth operation of a

government’s judicial functions.”); police stations, see,

e.g., Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 231

(2d Cir. 1996) (the “police purpose in permitting access

[to its bulletin boards) is to promote its own internal

objectives”); interrogation rooms, see, e.g., Carreon v.

Ill. Dep’t of Human Servs., 395 F.3d 786, 797 (7th Cir.

2005) (“It is clear that a room used to interview a

26

person suspected of committing a crime is not a public

forum.”); fire stations, see, e.g., Johnson v. City of Fort

Wayne, 91 F.3d 922, 941 (7th Cir. 1996) (a fire station’s

purpose, “performing a vital public safety function,” is

“obviously inconsistent with expressive activity”

(internal quotation marks omitted)); and public

hospitals, see, e.g., Low Income People Together, Inc. v.

Manning, 615 F. Supp. 501, 516 (N.D. Ohio 1985) (the

“sole purpose” of hospital waiting rooms “is to serve

patients, friends and families of patients, and the

Hospital staff who provide medical care”).

These government properties and others that this

Court has previously deemed nonpublic forums, such as

prisons, see, Jones v. N.C. Prisoners’ Labor Union, Inc.,

433 U.S. 119, 136 (1977), are integral to the States’

ability to carry out their core government functions. To

ensure that these functions are performed as effectively

and efficiently as possible, the States must be able to

preserve the use of these properties for the important

purposes they are intended to serve, including by

imposing reasonable and viewpoint-neutral limits on

the expressive activities that may occur there. As

Lehman recognized, were the rule otherwise, these

properties “immediately would become Hyde Parks

open to every would-be pamphleteer and politician.”

418 U.S. at 304 (plurality opinion). The disruption that

would ensue from such unfettered expression would

significantly impede state and local governments from

performing functions and delivering services that are

critical to public health and safety. “This the

Constitution does not require.” Jd.

27

Ill. This Court Should Reject Petitioners’

Invitation To Limit Burson v. Freeman to

Laws Prohibiting Active Electioneering.

In Burson, this Court applied traditional forum

analysis to uphold a Tennessee statute that created a

“campaign-free zone” inside and within 100 feet of

polling places on election day. 504 U.S. at 193, 198-211

(plurality opinion). The facial, First Amendment

challenge to the statute came from a political campaign

worker who sought to communicate with voters in the

campaign-free zone outside the polling place. Jd. at

194. Viewing the streets and sidewalks outside the

polling place as a public forum, the Burson plurality

applied strict scrutiny to test the constitutionality of

the statute. Jd. at 196-98.

The inside of a polling place, on the other hand, is a

quintessential nonpublic forum. See, e.g., Marlin, 236

F.3d at 719; Resp. Br. 29-32. Petitioners do not dispute

that fact. Thus, since the speech regulations in Burson

survived the strict scrutiny applicable to a public

forum, it can only follow that similar regulations would

survive the more lenient scrutiny applicable to a

nonpublic forum.’

To dissuade the Court from this inescapable result,

petitioners and their amici strain to distinguish Burson

by, among other things, proposing that there is a

dichotomy between restrictions on “active

electioneering”—which, they claim, was all that was

involved in Burson—and the “passive display of

* Justice Scalia made this very point in his concurring opinion in

Burson. 504 U.S. at 216 (Scalia, J., concurring in the judgment).

28

speech”—which, they claim, is all that is involved here.

Pet. Br. 15-16, 31, 36-37. But the distinction

petitioners would like to draw between active and

passive speech is unsupportable. Neither the statute

at issue in Burson nor Burson’s analysis was limited to

restrictions on active electioneering.

Moreover, this Court’s precedents do not support

any suggestion that “passive” speech triggers an

analysis under a legal standard other than the one

applied to “active” speech. See, e.g., Lehman, 418 U.S.

at 304 (plurality opinion) (applying nonpublic forum

analysis to passive display of political speech); Morse v.

Frederick, 551 U.S. 393, 408-10 (2007) (applying lower

level scrutiny to high school student’s passive display

of message on a banner).

A. The Tennessee law challenged in Burson

prohibited both active electioneering

and the passive display of campaign

materials.

The Tennessee law challenged in Burson, like the

laws of many other States, applied both to active

electioneering and to the passive display of campaign

materials. Included within its ban on the passive

display of campaign materials was a prohibition on the

wearing of buttons, caps, pin, shirts, and similar

apparel within the statutorily set boundary.

The precise portion of the statute that was

challenged as facially invalid under the First

Amendment was Tenn. Code Ann. § 2-7-111(b), which

provided:

Within the appropriate boundary as established

in subsection (a), and the building in which the

29

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. No campaign posters, signs or other

campaign literature may be displayed on or in

any building or on the grounds of any building in

which a polling place is located.

Tenn. Code Ann. § 2-7-111(b)(1) (1990).

Petitioners maintain that Burson “did not involve a

law restricting citizens’ ability to wear political apparel

when voting.” Pet. Br. 36. Petitioners are incorrect.

The statute upheld in Burson prohibited the passive

display of campaign materials, the active distribution

of campaign materials, and the active solicitation of

votes, on and inside the polling place and within 100

feet of the polling place. 504 U.S. at 193-94. The

dissenting opinion, oral arguments, decision below, and

the briefing all confirm that the challenged statute

applied to passive displays such as buttons and shirts

and was enforced accordingly. See id. at 224 (Stevens,

J., dissenting) (recognizing the statute applied to the

“wearing of campaign buttons”); Oral Arg. Tr., 1991

WL 636253, at *33 , Burson (No. 90-1056) (“Tee-shirts

and campaign buttons are restricted under this

statute.” (Statement of Tenn. Att’y Gen. Burson));°

* The full exchange between General Burson and Justices Kennedy

and O’Connor occurred during General Burson’s rebuttal:

JUSTICE KENNEDY: And what about tee-shirts and

campaign buttons?

30

Freeman v. Burson, 802 S.W.2d 210, 213 (Tenn. 1990)

(discussing the “solicitation of votes and the display or

distribution of campaign materials” (emphasis added));

Br. of Resp. at 3, Burson, 504 U.S. 191 (No. 90-1056)

(noting the law “even extends to the wearing of caps or

shirts with a candidate’s name on it”).

Thus, petitioners are wrong when they claim that

the statute at issue in Burson involved only active

electioneering and did not involve the passive display

of speech. The statute included, on its face,

prohibitions on the passive display of speech, such as

campaign apparel and buttons. And this Court was

cognizant of that fact.

MR. BURSON: Tee-shirts and campaign buttons are

restricted under this statute.

JUSTICE KENNEDY: So a voter cannot wear a little

campaign button going into --

MR. BURSON: A voter is asked to take the campaign

button off as they go in. It’s our position -- look, buttons

and tee-shirts and hats and signs are all part of

campaigning activity. They all implicate and invite the

same problems. When you start --

JUSTICE O’CONNOR: And a bumper sticker on a car

driving by on the street that happens to fall within the

100-foot limit?

MR. BURSON: Yeah. That is a hypothetical —

Oral Arg. Tr., 1991 WL 636253, at *33-*34, Burson (No. 90-1056).

31

B. Burson’s First Amendment analysis was

not limited to regulation of active

electioneering and did not turn on any

distinction between active and passive

speech.

Petitioners are equa!'ly wrong to claim that Burson’s

legal analysis was limited to restrictions on active

electioneering or that the legal analysis turned on any

distinction between active and passive speech.

Burson held that regulations of political speech

designed to protect access to the polling place are to be

analyzed under the forum doctrine as regulations of

government-controlled property. 504 U.S. at 196-97

(plurality opinion). Because, in the view of the

plurality, Tennessee’s statute regulated traditional

public forums, namely public streets and sidewalks

adjacent to a polling place, the law was “subject(] to

exacting scrutiny.” Jd. at 198. The statute passed

muster under that highest level of scrutiny because of

the State’s compelling interest in protecting its citizens’

“fundamental . . . right to cast a ballot in an election

free from the taint of intimidation and fraud” and

because of the “long history” and “substantial

consensus” that political-speech restrictions “around

polling places [are] necessary to protect that

fundamental right.” Jd. at 211.

Burson’s legal analysis was not even remotely

predicated or dependent on any distinction between

passive speech and active electioneering. Indeed,

Burson expressly identified the “central concerns” of

the First Amendment that the Tennessee statute

implicated: “regulation of political speech, regulation of

speech in a public forum, and regulation based on the

32

content of the speech.” Jd. at 196. Nowhere does

Burson limit its consideration only to regulation of

“active campaigning” or electioneering. Pet. Br. 36.

The Court simply applied the most stringent scrutiny

to a statute that regulated political speech—

undifferentiated by “active” versus “passive”

manifestation of the expression—and held that the

statute did not violate the First Amendment.

Every State has a highly “compelling interest in

securing the right to vote freely and effectively.” Jd. at

208. Polling places are, first and foremost, dedicated

to allowing voters to cast their ballots in secret, free

from coercion, intimidation, and distraction. Jd. at 206.

Their core purpose is to provide a venue in which

citizens may exercise their fundamental, constitutional

right to vote. Jd. at 213-14 (Kennedy, J., concurring).

For these reasons, Justice Scalia argued in Burson that

“the environs of a polling place, on election day, are

simply not a ‘traditional public forum” and would have

applied only intermediate scrutiny. Jd. at 216 (Scalia,

J., concurring in the judgment).

In their struggle to distance themselves from

Burson, petitioners take the position that there is no

compelling interest in regulating “passive” messages

displayed on apparel, because passive speech is

powerless to disrupt the peace of the polling place,

intimidate others, or even influence others. Pet. Br. 15.

In essence, petitioners are arguing that the written

word is less powerful than the spoken word, that a

passively displayed symbol is less powerful than a

symbol accompanied by action.

But there is no logic to this argument, and it surely

runs counter to common sense; we all know that the

33

pen is mightier than the sword. The Klansman’s hood

and the Nazi swastika are symbols that, even when

silently displayed, are capable of arousing fear and

intimidation. Clearly, “passive” displays of campaign

messages can have strong and odious effects. See, e.g.,

Lehman, 418 U.S. at 304 (plurality opinion) (holding

that city could prohibit political advertising in

streetcars to avoid subjecting riders to the unwelcome

“blare of political propaganda”); Burson, 504 U.S. at

207 (plurality opinion) (“undetected or less than

blatant acts” of intimidation or interference may “drive

the voter away”).

C. Petitioners’ constitutional right to free

speech must be reconciled with the

State’s compelling interest in protecting

its citizens’ constitutional right to vote.

Burson “presentied this Court] with 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.” 504 U.S.

at 198 (plurality opinion). The Court reached

reconciliation by holding that Tennessee’s “campaign-

free-zone” regulation was a constitutionally permissible

compromise of the conflict between the right of free

speech and the right to vote. Jd. at 211.

This case should be resolved by the same

reconciliation. Burson held that Tennessee’s statute

survived strict scrutiny because its restrictions were

“necessary to protect” the “fundamental right . . . to

cast a ballot in an election free from the taint of

intimidation and fraud.” Jd. at 211. Justice Kennedy

concurred in that compromise resolution because “the

First Amendment permits freedom of expression to

34

yield to the extent necessary .. . to protect the integrity

of the polling place where citizens exercise the right to

vote.” Id. at 213-14 (Kennedy, J, concurring).

Minnesota’s statute, which is subject only to the more

deferential standard of review applicable to regulations

of speech in nonpublic forums, is a reasonable means of

protecting the right to vote. See id. at 214-16 (Scalia,

J., concurring in the judgment) (finding Tennessee’s

statute a “reasonable” regulation of a nonpublic forum).

Another of this Court’s precedents provides an

additional factor that, when considered, supports the

compromise reached in Burson and requires a similar

resolution of this case. In Lehman, a political

candidate challenged on First Amendment grounds a

city policy that allowed placard advertisements on the

city transit system but prohibited political

advertisements. 418 U.S. at 299-301 (plurality

opinion). In petitioners’ parlance, the candidate sought

to exercise his right to political speech through a

passive display.‘

The candidate’s challenge was unsuccessful. The

plurality opinion emphasized that the Court had “been

jealous to preserve access to public places for purposes

of free speech,” but that it had always looked to “the

nature of the forum and the conflicting interests

involved .. . in determining the degree of protection

afforded by the [First] Amendment to the speech in

‘With a message that seems utterly innocuous in today’s climate,

the candidate’s proposed placard contained his likeness and the

following copy: “HARRY J. LEHMAN IS OLD FASHIONED!

ABOUT HONESTY, INTEGRITY AND GOOD GOVERNMENT.”

Lehman, 418 U.S. at 299 (plurality opinion).

35

question.” Jd. at 302-03. Because the forum in

question—a public street car—was not an open space

and its users were a “captive audience” with their own

constitutional interests, the city’s regulation of political

speech did not violate the First Amendment. /d. at

303-04.

Justice Douglas, concurring, elaborated on the

conflicting interests at stake. A streetcar is used by

“people who because of necessity become commuters

and at the same time captive viewers or listeners.” /d.

at 306-07 (Douglas, J., concurring). In his view, the

candidate “clearly hald) a right to express his views to

those who wishled] to listen,” but “he hald] no right to

force his message upon an audience incapable of

declining to receive it.” Id. at 307. Commuters’ right

to be free from forced intrusions on their privacy

“precludeld] the city from transforming its vehicles of

public transportation into forums for the dissemination

of ideas upon this captive audience,” which “has no

choice but to sit and listen.” Jd.

The voter in the polling place is just as much, if not

more, a captive audience. And her conflicting

interest—the right to vote—is certainly as important

as, and likely much more important than, a commuter’s

right to privacy. To exercise her fundamental,

constitutional right to vote she “has no choice but” to be

in her assigned polling place. She is, thus, the forced

recipient of political messages displayed on the shirt or

the cap of the voter across the room and on the button

sported by the voter next to her in line. She cannot

escape the sting of social pressure, intimidation,

confusion, or distraction without leaving the polling

place and thereby forfeiting her right to vote.

36

Indeed, the record in this case reveals that

petitioners’ “Please I.D. Me” buttons were intended to

have just such effects on exactly this captive audience.

At least part of petitioners’ admitted purpose was to

bluff voters in the polling place into believing they were

legally required to produce [Ds or else leave without

voting. JA 104-105; Pet. App. D-12 (district court

recognizing that “[t|his intimation could confuse voters

and election officials and cause voters to refrain from

voting because of increased delays or the

misapprehension that identification is required”).

In short, the reconciliation this Court reached in

Burson—which, contrary to petitioners’ assertions, did

take into account individuals’ right to display passive

political expression—applies equally here. And that

reconciliation is easier in this case because the interior

of the polling place is a nonpublic forum that people

must visit to exercise their fundamental right to vote.

37

CONCLUSION

The judgment of the Eighth Circuit should be

affirmed.

Respectfully submitted,

Herbert H. Slatery III

Sarah K. Campbell

Special Assistant to the Solicitor General

and the Attorney General

Jonathan David Shaub

Assistant Solicitor General

Office of the Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 741-3492

andree. blumstein@ag.tn.gov

Counsel for Amicus Curiae

State of Tennessee

Dated: FEBRUARY 2018

38

Counsel for Additional Amici

CURTIS T. HILL, JR.

Attorney General

State of Indiana

200 West Washington St.

Room 219

Indianapolis, IN 46204

DEREK SCHMIDT

Attorney General

State of Kansas

120 SW 10th Avenue

JIM HOOD

Attorney General

State of Mississippi

P.O. Box 220

Jackson, MS 39205

TIMOTHY C. FOX

Attorney General

State of Montana

P.O. Box 201401

Helena, MT 59620

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

2115 State Capitol Bldg.

Lincoln, NE 68509

PETER F. KILMARTIN

Attorney General

State of Rhode Island

150 S. Main St.

Providence, RI 02903

KEN PAXTON

Attorney General

State of Texas

P.O. Box 12548

Austin, TX 78711-2548

SEAN D. REYES

Attorney General

State of Utah

P.O. Box 142320

Salt Lake City, UT 83114