Petition for Writ of Certiorari — Recall '92, Inc. v. Edwards
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Text
No.
In the
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1993
RECALL ’92, INC., et all.
Petitioners
versus
EDWIN W. EDWARDS,
Governor of the State of Louisiana, et al.
Respondents
Petition for Writ of Certiorari to the United States
Court of Appeais for the Fifth Circuit
Tracy S. Pickerell *
709 Napoleon Street
Baton Rouge, Louisiana 70802
(504) 343-0411
Theodor A. Schirmer
32200 Mulholland Hwy.
Malibu, California 90265
(818) 889-1385
Katherine Wheeler
412 North 4th Street, Suite 200
Baton Rouge, Louisiana 70802
(504) 338-0306
* Counsel of Record Counsel for Petitioners
—— a —ee.)hUOCO
QUESTION PRESENTED FOR REVIEW
Does the free speech clause of the First Amendment
permit Louisiana to prohibit all political speech within a
radius of 600 feet from the entrances to polling places on
election and absentee voting days, including political speech
not related to any candidate or proposition on the ballot,
such as the solicitation of signatures on a recall petition and
the wearing of t-shirts or buttons and display of signs
publicizing the recall effort.
Page 1.
ie |
LIST OF PARTIES TO THIS PROCEEDING
The following parties, plaintiffs and appellants in the
proceedings below,’ are petitioners in this proceeding for
writ of certiorari:
Recall ’92, Inc.
Shelley E. Corrington
Stephen Lindsley
Cheryl Lee Hensley
Rose S. Wheeler
The following parties, defendants and appellees in
the proceedings below, are respondents in this proceeding
for writ of certiorari:
Edwin W. Edwards, Governor of Louisiana
Richard P. Ieyoub, Attorney General of Louisiana
W. Fox McKeithen, Secretary of State of Louisiana
- ett A aA Es
' Theodor A. Schirmer and Dr. Wilmer F. West, plaintiffs in the
original proceedings in the District Court, have withdrew as parties.
; Page ii.
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW ........ i
LIST OF PARTIES TO THIS PROCEEDING ...... li
pp ee yy Fe iil
pp ay ey |. Vv
PETITION FOR WRIT OF CERTIORARI ........ l
Ee l
A Oe ee ae eee 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ............. 2
Dereemenewe Ge BPS CASS . 0 wc tec cee ee 4
REASONS FOR GRANTING WRIT .......... 14
rk ns on 0 4 0 24
EEN a 25
A. Constitutional and Statutory Provisions ..... la
parm Amendment... ... 0.0 csees la
Fourteenth Amendment .......... la
se a re la
Page iii.
ica
B. Opinion of the Fifth Circuit Court of
RE a ce eee Mae eee eee eS 3a
nd Opinion of the Fifth Circuit Court of Appeal,
Granting Injunction Pending Appeal ...... 20a
D. Order of the U.S. Supreme Court Denying
Stay of Injunction Pending Appeal ....... 32a
E. Louisiana Supreme Court Answer to Certified
Question from Fifth Circuit Court of
MO bl eca eas ened 8 ee ee ee 33a
F. Judgment of the U.S. District Court, Middle
ee Ge Bh 6 bk ss se cee ee 37a
G. Opinion of the U.S. District Court, Middle
eens Gr EI, sa oe oo oe ae ee 38a
H. Transcript of Ruling on Hearings on Motion
to Quash, State of Louisiana v. Theodore A,
Schirmer, Louisiana 19th Judicial District
Court, Docket No. 5-93-133 .......... 56a
a RE AB <A alec eg es
Page iv.
TABLE OF AUTHORITIES
U.S. Constitution, First Amendment ........ passim.
U.S. Constitution, Fourteenth Amendment ........ 2
Oe Way © CE 5k os bo oo ok a eee. 2
Mens MUCOEEE 0.5 6 oo 55d bs ook eee ee passim.
LSA-R.S. 18:1300.1, ef seq. 2... ec eee 5
WG TENE 8 8s a ee eee. 22
hay: Ge PN EE kon eee ea eee ee 6
Boos v. Barry, __ U.S. __, 108 S.Ct 1157
See Pe re ee Pee Mote ke 17
Burson v. Freeman, __ U.S. ___, 112 S.Ct. 1846,
Poem ET ee ee passim.
Calchera v. Procarione, 805 F.Supp. 716 (E.D.Wis.
PE Seine ter eet eee 7, 15
WE 06% 0044 eee 18
City of Houston v. Hill, 482 U.S. 451, 107 S.Ct.
SPR COME 06 050 64686 Ce 18
Clean-Up ’84 v. Heinrich, 759 F.2d 1511 (11th Cir.
ne EEE ETS Pee ee 15, 23, 24
Daily Herald Company v. Munro, 838 F.2d 380 (9th
i TO ke eee pes eee 17, 18
ae
Florida Committee For Liability Reform v.
McMillan, 682 F.Supp. 1536 (M.D. Fla.,
Pre are ice rarer ir ae ee 17
Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16
ee Ff oft.) eee eee re eee 17
NBC v. Cleland, 697 F.Supp 1204 (N.D. Ga.,
Nog ibe, 6 oo oe a e 17, 18
United States v. Grace, 461 U.S. 171, 103 S.Ct.
PRUNE ‘+. 9-4 80-4 ae ee ee eae 21
Si Me ORE «5 5:6.4-6 6.6.6 :4ee eee 7
a ee 7
i ch a ED. 4 6 4s 0-0-0 oo oe eee 8
Note, "Defoliating the Grassroots: Election Day
Restrictions on _ Political Speech," 77
Georgetown L.J, 2137 (1989) ........ 7, 18
Page vi.
No.
In the
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1993
RECALL ’92, INC., et al.
Petitioners
versus
EDWIN W. EDWARDS, et al.
Respondents
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The petitioners urge that a writ of certiorari issue to
review the judgment of the United States Court of Appeals
for the Fifth Circuit, which affirmed a decision of the
United States District Court for the Middle District of
Louisiana, dismissing petitioners’ challenge, on First
Amendment grounds, to a Louisiana statute which prohibits
non-ballot as well as ballot-related political speech within a
600 foot radius of the entrances to polling places on election
and absentee voting days in Louisiana.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Fifth Circuit is reported at 2 F.3d 117 and reprinted
at Appendix B to this petition for certiorari. The judgment
Page 1.
and opinion of the United States District Court for the
Middle District of Louisiana are unreported. They are
reprinted at Appendices F and G, respectively.
JURISDICTION
The Court of Appeals rendered its decision on
September 17, 1993. Petitioners invoke the jurisdiction of
this Court under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The following constitutional and statutory provisions
involved in this case are reprinted in full at Appendix A:
ni nstituti
U.S. Constitution, First Amendment (1791):
Congress shall make no law . . . abridging the
freedom of speech, .. .
U.S. Constitution, Fourteenth Amendment (1868):
Section 1. . . . No state shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Page 2.
a.
NN koe coe SRNR nes Loe
Louisiana Revised §
LSA-R.S. 18:1462
A. Except as otherwise specifically provided by law,
it shall be unlawful for any person, between the hours of
6:00 a.m. and 9:00 p.m. to perform or cause to be
performed any of the following acts within any polling place
being used in an election on election day or within any place
wherein absentee voting is being conducted, or wherein
absentee voting is being conducted, or within a radius of six
hundred feet of the entrance to any polling place being used
in an election on election day or any place wherein absentee
voting is being conducted:
(1) To solicit in any manner or by any means
whatsoever any other person to vote for or against
any candidate or proposition being voted on in such
election.
(2) | To remain within any such polling place or
place wherein absentee voting is being conducted or
within a radius of six hundred feet of the entrance of
any such polling place, except when exercising the
right to vote, after having been directed, in writing,
by an election commissioner or law enforcement
officer to leave the premises or area of a polling
place or after having been directed, in writing, by a
registrar or deputy registrar to leave the place
wherein absentee voting is being conducted.
(3) To hand out, place, or display campaign
cards, pictures, or other campaign literature of any
kind or description whatsoever.
Page 3.
(4) To place or display political signs, pictures,
or other forms of political advertising.
STATEMENT OF THE CASE
This case involves a First Amendment challenge to
a Louisiana statute, LSA-R.S. 18:1462, which has been
interpreted to prohibit all political speech, including political
speech unrelated to any candidate or proposition on the
ballot, within a 600 foot radius of the entrances to polling
places on election and absentee voting days in Louisiana.
Petitioners are asking the Court to address two
questions left unanswered in its recent decision in Burson v,
Freeman, --- U.S. ---, 112 S.Ct. 1846, 119 L.Ed.2d 5
(1992): (1) whether, consistent with the First Amendment,
a state can proscribe non-ballot related political speech in
areas Outside polling places on election days, and (2) at what
measurable distance from the polls does the government’s
restriction of political speech become an impermissible
burden on First Amendment rights.
Facts
The petitioners are a group of Louisiana votes who
are’ organizers and members of an incorporated political
organization called Recall ’92, Inc. The respondents, the
Governor, Attorney General and Secretary of State of
Louisiana in their official capacities, are the state’s primary
officials charged with the conduct of elections and the
enforcement of election laws.
At the time this litigation began the principal
objective of the Recall "92 group was to recall Louisiana
Governor Edwin Edwards. In pursuit of their goal,
supporters of Recall ’92 sought to coliect, in the vicinity of
polling places on the primary and general election days of
Page 4.
October 3 and November 3, 1992, Signatures on petitions
for a recall election of the governor.
Louisiana has adopted very onerous and exacting
requirements for conducting a successful recall petition
campaign.' It is necessary to obtain the signatures within a
period of 180 days of at least one-third of the total of
registered voters in the affected voting area, in the case of
a statewide official such as the Governor, ap roximately
750,000 signatures. The recall law requires that voters
executing recall petitions sign their names exactly as their
names appear on the voter registration rolls and identify
their voting ward, precinct, district number and residential
address exactly as they appear on the official rolls.
These requirements make collecting signatures at
polling places an extremely efficient and effective means of
assuring that voters who wish to sign a recall petition have
ready access to the precise information required for a valid
Signature on a recall petition, thus minimizing the risk of
error regarding official registration information by voters
Signing the petition. Additionally, collection of recall
petition signatures at the polls dramatically reduces the cost
and manpower requirements necessary for a grassroots
Organization such as Recall ’92 to comply with the strict
time limit imposed for collecting sufficient valid signatures
to invoke a recall election. Coilecting signatures at the polls
also provides optimal access to registered voters generally
and those voters most likely to vote or be interested in
signing a recall petition.
LSA-R.S. 18:1462, the statute in question in this
case, establishes a “campaign-free" zone emanating a radius
of 600 feet from the entrance to each polling place in
Louisiana on election and absentee voting days.
This statute was interpreted by the Louisiana
Supreme Court to apply to and prohibit recall petition
' LSA-R.S. 18:1300.1, et seq.
Page 5.
Signature solicitation by petitioners and the wearing of t-
shirts and buttons and the displaying of signs publicizing the
recall effort,? even though neither the recall nor Governor
Edwards was on the October and November, 1992 ballots
and petitioners’ activities were not related to any candidate
or proposition being voted on at the polls. LSA-R.S.
18:1462 is a criminal statute which imposes a misdemeanor
penalty for the first offense and a felony penalty of a fine of
up to $1000 or imprisonment of up to one year or both for
the second and any succeeding offense.
The history of Louisiana voting and election
regulations reveals that around the turn of the century,
Louisiana, like other states, adopted election laws providing
for official ballots and privacy in voting. At that time, some
states also adopted prohibitions against campaigning and
electioneering activity within specified areas surrounding
polling places. However, Louisiana’s establishment of a
“campaign-free" zone around polling places is of relatively
recent vintage, having been initially set at a 300 foot radius
in 1960.’ These provisions were eventually incorporated
into LSA-R.S. 18:1462, which was amended in 1980 to
increase the distance from a 300 foot radius from the
entrances to polling places to a 600 foot radius. There is no
legislative history, legislative committee reports or findings
of-any study or research to explain or justify the
amendment.
All but one of the fifty states presently impose some
prohibition against electioneering activity within specified
distances from polling places, with distances ranging from
a 10 foot corridor in New Hampshire and Pennsylvania to
? Schirmer, et al. v. Edwards, et al., Louisiana Supreme Court, No.
92-CQ-2829 (1992), reproduced as Appendix E, page 33a.
3 La. Acts 1960, No. 221.
Page 6.
a 1,000 foot radius area in Hawaii.* Louisiana’s 600 foot
radius campaign-free zone is the second largest of all the
fifty states. Only two other states besides Hawaii and
Louisiana have established political speech restricted zones
in excess of 300 feet. Kentucky and Wisconsin have 500
foot restricted zones.° Thirty-eight states have established
campaign-free zones of 250 feet or less. Twenty-five of
these states have zones of 100 feet or less.°
Prior to October 1, 1992, two opinions had been
issued by Louisiana’s attorney general authorizing the
collection, within the six hundred foot radius zone
surrounding polling places, of signatures on petitions such
as those sought to be circulated by petitioners. According
to these early attorney general opinions, “the Louisiana
Election Code does not specifically prohibit citizens from
soliciting signatures for a petition” which is not on the
ballot.’ Additionally, in the past, individuals involved in
several petition drive efforts had been permitted to collect
Signatures at or immediately outside polls unimpeded by
election officials. Prior to October 1, in anticipation of the
upcoming October 3rd and November 3rd elections,
Theodor A. Schirmer, one of the organizers of the Recall
’92 petition drive, had worked out arrangements with local
* See Appendix to Note, “Defoliating the Grassroots: Election Day
Restrictions on Political Speech," 77 Georgetown L.J. 2137 (1989).
> Wisconsin’s 500 foot restricted zone was recently declared
unconstitutional in Calchera v. Procarione, 805 F.Supp. 716 (E.D. Wis.
1992).
© See Note, “Defoliating the Grassroots: Election Day Restrictions on
Political Speech," supra. at 2146-47, 2196-2200.
7 La. A.G. Opinions 91-597 and 92-650. Louisiana’s legislature met
after the first attorney general opinion and made no effort to correct such
interpretation.
Page 7.
Baton Rouge, Louisiana election officials establishing
ground rules for setting up tables and collecting signatures
in the immediate vicinity of polling places in East Baton
Rouge Parish.
Despite this precedent for benign treatment of
petition signature collection activity around polling places,
on October 1, 1992, state officials, including the secretary
of state and the attorney general, notified all local clerks of
court of the sixty-four Louisiana parishes and the election
commissioners working for them of a newly imposed
requirement prohibiting the petition activities of Recall ’92
volunteers within the six hundred foot radius zones
surrounding the polling places.
On October 1, 1992, two days before the October
3rd primary, the Louisiana attorney general issued a third
opinion on the subject, reversing the two previously issued
opinions which authorized such activity, and concluding for
the first time that the 600 foot restriction applies to petition
activities. ®
On October 3, 1992, a primary election was
conducted in Louisiana and the ballots in the various
parishes included candidates for public office and
propositions submitted to the voters, none of which had any
relation to the Recall °92 effort or involved Governor
Edwards. At various locations throughout the state, some
of the plaintiffs were ordered to leave areas within six
hundred feet of the polling places where they were
attempting to collect signatures on their recall petitions. In
addition, several of them were either denied the opportunity
to vote, required to remove buttons or t-shirts in order to be
allowed to vote or were permitted to vote only after initial
refusal for wearing t-shirts with the Recall ’92 logo on
them.
® La. A.G. Opinion 92-650(A).
Page 8.
Despite these activities and restrictions directed at
petitioners and other Recall °92 volunteers, other
individuals, unrelated to Recall °92, wearing campaign or
political advertisements in the form of buttons, t-shirts and
hats, were not similarly treated or prevented from voting
and, at certain poll locations in the state, even campaign
signs of individuals whose names were on the October 3rd
election ballot were permitted within the six hundred foot
radius.
r in | n | Pr in
After the October 3rd primary, petitioners filed suit
in U.S. District Court in the Middle District of Louisiana
seeking to have LSA-R.S. 18:1462 declared unconstitutional
and injunctive relief from the enforcement of this
Statute against them during the November 3rd general
election and on subsequent election days. On October 19
and 20, 1992, the district court conducted a two-day trial on
the constitutionality of the statute and petitioners’ request for
both preliminary and permanent injunctions.
During the trial, in addition to the above facts,
petitioners presented video tape and testimonial evidence
showing that a 600 foot radius from the entrance to the
polling places, an area encompassing approximately
1,130,000 square feet or almost 26 (25.95) acres around
each polling place, typically includes a number of streets,
public sidewalks, sometimes vast areas of public parks and
other areas of public property traditionally and typically
open and available for generally unrestricted use by the
public. In numerous polling locations, the 600 foot
parameter was beyond view and in some instances blocks
away from the entrance to the poll.
Plaintiffs also presented evidence showing that recall
and other petition drives unrelated to any candidate or
matters on the ballot had historically been conducted in
Page 9.
Louisiana at or in the close vicinity of polling places without
any complaints of interference with the voting taking place
at the polls.
In contrast, the only evidence presented by
defendants was anecdotal evidence by several state officials
of the need to have the 600 foot campaign-free zone in order
to prevent harassment, intimidation and interference with
voters. Respondents did not present any concrete evidence
to support the asserted proposition that in order to prevent
intimidation, harassment or interference with voters, it is
necessary to extend the campaign-free zone over such a
large area as is encompassed within the 600 foot radius or
that it is necessary to enforce it against persons soliciting
petition signatures unrelated to any matter on the ballot.
The Louisiana legislator who authored the
amendment extending the restricted zone from 300 to 600
feet testified that the extension was intended é*. substantially
reduce the utility, and hence the use, of vo.uwier and paid
campaign workers ("poll workers") to contac. and attempt
to influence voters one last time on their way to the polls.
According to this legislator:
"If we could do away with the poll workers
it would save the candidates in our area of
the state a great deal of money because if one |
candidate had poll workers then the other
candidate felt like he had to have poll
workers."
The legislator testified that extending the restricted zone to
a 600 foot radius was completely successful in making it
impossible for poll workers to effectively contact voters on
their way to the polls.? He also admitted that that statute
9 "So from my personal perspective, we don’t have poll workers at
(continued...)
Page 10.
ee |
was never originally intended to address political activities
on election days other than as relate to candidates and issues
on the ballot at the polls.'°
Another legislative sponsor of the 600 foot radius
zone amendment confirmed that the purpose of the statute
was to completely curtail the activities of poll workers and
to isolate voters from last minute efforts to influence their
votes. '!
At the conclusion of the trial, the district court
denied petitioners’ requested declaratory and injunctive relief
and ruled that LSA-R.S. 18:1462 is constitutional under this
Court’s decision in Burson. The court determined that
Section 1462 creates a constitutionally permissible
campaign-free zone around polling areas and applies to all
political issues and parties, whether or not they are on the
ballot.
Petitioners appealed to the Sth Circuit and in the
interim sought injunctive relief pending appeal. The district
court denied relief. A panel of the Sth Circuit certified to
the Louisiana Supreme Court the question of the
applicability of Section 1462 to petitioners’ non-ballot
% .. continued)
election precincts anymore. That was the real purpose of the legislation
and it has generally achieved that objective."
10 "I don’t recall specifically any discussion of anything other than the
actual people being at the polls for and on behalf of a candidate or an
issue to be voted upon."
;, "...minety-five percent of the time ... when people leave their houses,
they’ve made up their minds on who they’re going to vote for or what
issue they are going to vote for or against and that’s the way it ought to
be. And, I think that it would be good that if on election day people had
the time to consider all of the issues, consider all of the paraphernalia
that’s been handed out, all the campaign rhetoric, and to make up their
minds in a logical way and not have last minute efforts to change their
minds."
Page 11.
related activity. After the Louisiana Supreme Court ruled
that Section 1462 applied to such activity,'? the panel
granted an injunction pending appeal, which injunction
allowed the petitioners and other Recall ’92 supporters to
solicit recall petition signatures at a distance as close as 100
feet to the entrances to polling places during the November
3, 1992 general election and a subsequent special election
held in some parts of the state." The panel suggested that
the 600 foot limit might be unconstitutional under Burson.
While the appeal of this case was pending in the Sth
Circuit, one of the original plaintiffs and Recall °92
organizers, Ted Schirmer, sought to quash a state criminal
charge against him for soliciting recall petition signatures
within the 600 foot radius zone.
In the state court hearing on his motion to quash,
some of the same public officials who testified in this case
were called to testify. Since the state court hearing occurred
on July 19, 1993, after the November 3, 1992 general
election and the subsequent special elections during which
petitioners were permitted, under the Sth Circuit’s injunction
pending appeal, to solicit signatures as close as 100 feet to
the entrances to polling places, these officials were asked
whether petitioners’ activities, at 100 feet from polling place
entrances, caused any problems of interference with or
harassment of voters. Their answers, that petition
solicitation as close as 100 foot to the entrances to the polls
did not cause any problems of voter interference or
harassment, provide empirical evidence that a restriction of
no more than 100 feet around the entrances to polling places
on election days is sufficient to prevent any voter
2 See, Appendix E, page 33a.
3 See, Appendix C, page 20a.
Page 12.
ns ae |
interference or harassment by solicitors of petition
signatures. "4
In that companion state criminal case, the state trial
court made the following findings:
"The testimony that has been presented of course
indicates that the officials charged with enforcing
these limits apparently have to wrestle with them
every election. But I really didn’t hear anything that
they have a problem with--that they had a problem
with at 100 feet which was the limit in November
that would not have also been a problem at 600 feet.
That was the reason for my question to Mr. Fowler
whether the 100-foot limit which the state was forced
to use in November presented an problems--or any
different problems than they had in prior elections
when the limit was 600 feet. And it was my
appreciation of his testimony that there was no
unique problem, nothing that they wouldn’t have had
the distance been six times greater. . . State of
Louisiana v. Schirmer, Appendix H, page 56a.
The state court judge, citing this Court’s decision in
Burson and the Sth Circuit’s interim decision in this case
granting the injunction pending appeal, held LSA-R.S.
18:1462 unconstitutional on First Amendment grounds."
On September 17, 1993, the Sth Circuit, likewise
citing Burson, reached the Opposite conclusion. The Sth
Circuit affirmed the judgment of the district court in this
case, holding that LSA-R.S. 18:1462 is valid under the First
4 See, Appendix H, page 56a.
See, Appendix H, page 56a. This case is presently pending on
appeal before the Louisiana Supreme Court.
Page 13.
Amendment because Louisiana has a compelling interest in
providing a campaign-free zone around its polls and the 600
foot radius zone is sufficiently narrowly tailored to achieve
the state’s compelling governmental interests. The court
further held that the statute’s application to political speech
of individuals and to the display of buttons, t-shirts and
signs unrelated to candidates or propositions on the ballot
does not render it overbroad.
REASONS FOR GRANTING WRIT
In the plurality opinion in Burson, this Court upheld,
against a First Amendment challenge, a 100 foot radius
campaign-free zone around polling places imposed by the
State of Tennessee, on ballot-related political speech. The
Court held that since the Tennessee statute in question
imposed a content-based restriction on political speech in a
public forum, the statute was subject to strict scrutiny. The
Court found that the states have a compelling interest in
protecting voters from confusion and undue influence,
insuring the integrity and reliability of the electoral process
and preventing fraud or duress. Relying on the long history
of election reform and the imposition of political speech
restricted zones around polling places in most of the states
including Tennessee, this Court concluded that some |
restricted area around the polling places on election day is
necessary to serve the states’ compelling interest in
preventing voter intimidation and election fraud.
The real question, according to this Court in Burson,
is how large a restricted zone is permissible in order to meet
the constitutional requirement that the regulation be
necessary to serve the state’s compelling interest and also
sufficiently narrowly tailored to achieve such interest
without unduly impinging constitutionally protected First
Amendment political speech rights.
Page 14.
Ee |
The Court determined that Tennessee’s 100 foot
radius campaign-free zone, typical of the range of campaign-
free zones established by most of the states, fell on the
“constitutional side of the line."
This Court should grant writs to address two
important questions affecting political speech rights left
unanswered in Burson: (1) whether, consistent with the
First Amendment, a state can proscribe nor-ballot related
political speech in areas outside polling places on election
days, and, if it can, (2) at what measurable distance from
the polls does the government’s restriction of political
speech become an impermissible burden on First
Amendment rights.
In addition this Court should grant writs to resolve
a conflict between the Sth Circuit’s decision in this case and
the 11th Circuit’s decision in Clean-Up ’84 v, Heinrich, 759
F.2d 1511 (11th Cir. 1985), which held that Florida’s 300
foot campaign-free zone, half the distance of Louisiana’s,
was unconstitutionally overbroad.
In another case decided since Burson, a district
court, relying on Burson, found that a Wisconsin statute
prohibiting campaign speech within 500 feet of the polls on
election day was not sufficiently narrowly tailored to achieve
the state’s interest, and therefore unconstitutional. Calchera
vy. Procarione, 805 F.Supp. 716 (E.D.Wisc.1992). Since
Burson, two separate panels of the Fifth Circuit in this case,
a state court judge and a federal district court judge, all
relying on Burson, reached conflicting decisions. This
Court’s guidance on how and where to draw that
constitutional line referred to in Burson for polling place
political speech restricted zones is essential to avoid
continuation of conflicting decisions in the lower courts on
this issue.
Page 15.
nein
I.
Most of the compelling interests identified in Burson
as justifying the Tennessee 100 foot radius campaign free
zone restriction on ballot related political speech’® --
prevention of voter confusion and intimidation and election
fraud -- are related to political speech on ballot topics. As
the Sth Circuit panel pointed out in its interim opinion
granting an injunction pending appeal in this case:
"... these justifications as applied to political
vi
have limited relevance to the core concerns
relied on in Burson, which were protecting
the integrity of the ballot from fraud and
intimidation. Persons conducting political
activity not related to a matter on the ballot
have no incentive to attempt to prevent
people from voting or to affect how they vote
at the polling place, and the voters are
certainly less likely to perceive that the
activities of such persons are aimed at their
voting or how they vote in the polling
place.""’
The only compelling state interests identified in
Burson that may be adversely affected by non-ballot related
political speech -- protecting voters from physical
16 The plaintiff in Burson challenged the Tennessee campaign-free zone
as it applies to candidates on the ballot. The language of the statute
appears to apply to only ballot related campaign activity and does not
appear to address non-balloted related political speech, although some
disagreement with that interpretation was voiced by Tennessee's
Attorney General in oral argument.
7 See, Appendix C, page 20a.
Page 16.
ee ee |
interference and preventing disruptions at the polis --
diminish and at some point fade completely with increased
distance from the polls. (See, Part II below.)
The only other interests identified by either the
respondents or the Sth Circuit in support of the necessity of
banning non-ballot related speech are either not compelling
interests or, if they are, the regulation in question doesn’t
serve them.
The testimony of legislators involved with the
passage of Louisiana’s 600 foot campaign free zone
demonstrates that the primary concern of the statute is not
election fraud or voter intimidation, but instead is perceived
voter sensitivity to being bothered by political workers as
they approach the polls to vote. However as this Court long
ago recognized in Mills vy, Alabama, 384 U.S. 214, 86
S.Ct. 1434, 16 L.Ed.2d 484 (1966), the state has no
compelling interest, indeed no right, to silence all political
debate that might reach the voter on election day. This
Court and the lower courts have consistently held that
Statutes designed to insulate voters from outside influences
or to avoid offense or bother to sensitive individuals are
invalid on First Amendment grounds. Mills v, Alabama,
supra; Daily Herald Company v. Munro, 838 F.2d 380 (9th
Cir. 1988); Florida Committee For Liability Reform vy,
McMillan, 682 F.Supp. 1536 (M.D. Fla., 1988); NBC y,
Cleland, 697 F.Supp 1204 (N.D. Ga., 1988); see also Boos
y. Barry, _* U.S. __, 108 S.Ct 1157 (1988).
Other than offense to sensitive voters, the only other
proposed compelling state interest articulated by respondents
and the 5th Circuit is the state’s interest in preventing
“disruption of the polling place and the election process."
With respect to this interest of the state, and the Sth
Circuit’s reliance on this interest, the state has no evidence
that petition solicitation activities and the wearing of t-shirts
and buttons at polls have in the past or will in future cause
Page 17.
“disruption” at the polls. Petition drives have been
historically conducted in Louisiana in the vicinity of the
polls without there being any disruption to the election
process. Even if there is some remote risk that individuals
opposed to the recall drive might interact with the
petitioners at the polls, preserving the integrity of the
election process means preserving a process free from fraud,
not a process free from friction." As this Court noted in
, 482 U.S. 451 at 452, 107 S.Ct.
2502 (1987), “a certain amount of expressive disorder is
inevitable in a free society and must be protected if freedom
is to survive."
With respect to the question of disruption at the
polls, all cases that have considered the matter have found
unconstitutional polling place restrictions imposed on exit
polling and media interviewing. Daily Herald Company v.
Munro, supra.; NBC v, Cleland, supra.; CBS, Inc, v.
Smith, 681 F.Supp 794 (S.D. Fla 1988). Such activity is at
least as intrusive and disruptive as the activity proposed by
petitioners in the instant case. Yet the courts have
recognized that prohibitions of such activity around and
immediately adjacent to polling places is violative of
paramount First Amendment rights and poses no significant
18 The Sth Circuit Opinion in this case did not even discuss how the
wearing by some individuals of t-shirts or buttons with a political
message is disruptive to voters entering the polls. Additionally, as far
as petitioners have been able to ascertain and the evidence introduced
demonstrates, no one in Louisiana, except petitioners, has been denied
access to the polls or their environs or denied the right to vote because
of the message contained on any t-shirt, other article of clothing or
button being wor, including candidates on the ballot wearing their own
political advertisement decorated clothing and paraphernalia.
'? See Note, "Defoliating The Grass Roots: Election Day Restrictions
On Political Speech,” supra. at 2176.
Page 18.
interference with the right to vote or the secrecy of the
ballot.”
Neither the respondents nor the Sth Circuit identified
what compelling state interest is served by a campaign-free
zone around polling places in which individuals are
prohibited from collecting signatures on a petition with
respect to a matter not on the ballot or wearing t-shirts and
buttons in support of their activities.
None of the compeiling interests historically
identified to support limited campaign-free zones around
polling places are implicated by the activities in question in
this case. Even if such activities might contribute to
congestion at the immediate entrance to the polling places or
some interference with voters entering the polls, the state’s
interest in protecting voters from such inconvenience can be
completely served by a restricted zone in the immediate
vicinity of the polls’ entrances.
II.
Even if the state has a compelling interest in
restricting non-ballot related political speech in the vicinity
of polls on election and absentee balloting days, as this
Court found in Burson, the Court was careful to limit its
holding by acknowledging that “[a]t some measurable
distance from the polls . . . governmental regulation of
[political speech] could effectively become an impermissible
20 The Sth Circuit discounted the applicability of the exit polling cases
and concluded that petition signature solicitation can be treated
differently by the state than exit polling because “there is no evidence of
widespread voter harassment or intimidation by exit-pollers.". Based on
this rationale, however, non-ballot related signature solicitation should
be treated exactly like exit-polling for First Amendment purposes, since
the state can point to and the court could identify no evidence of
“widespread voter harassment or intimidation" by solicitors of petition
signatures.
Page 19.
burden..." 112 S.Ct. at 1856. This Court recognized
that the real question is how large a political speech
restricted zone is permissible without running afoul of the
First Amendment.”!
A comparison of the Tennessee zone, approved in
Burson, and Louisiana’s zone, approved by the Fifth
Circuit, is revealing. The Tennessee statute, with its 100
foot radius restriction, creates an approximately 31,000
square foot campaign-free zone around each polling place,
encompassing less area than 3/4 (.72) of an acre with a
diameter of less than 4/100 of a mile (the distance of
approximately 2/3 of a football field). In contrast, the
Louisiana statute imposing a 600 foot radius zone covers an
area 36 times the area covered by the Tennessee statute,
creating a 1,131,000 square foot buffer zone around each
poll, encompassing an area of almost 26 (25.95) acres with
a diameter stretching almost a quarter (.227) of a mile (the
distance of 4 football fields).
Respondents argued, and the 5th Circuit agreed, that
the difference between a 100 foot radius zone and a 600 foot
radius zone is simply a difference in degree, not subject to
judicial scrutiny and having no constitutional significance for
First Amendment purposes. According to the Sth Circuit,
if Louisiana is entitled to establish a campaign free zone, the
fact that it is a 600 foot radius zone rather than a 100 foot
radius zone is of no moment.
In support of this conclusion, the 5th Circuit relied
on Burson’s language absolving the state of the burden of
demonstrating empirically the objective effects of, and
21 As the earlier panel of the Sth Circuit noted in its injunction pending
appeal, the Burson decision was predicated, in part, on wide-spread
consensus among the states regarding the need for some restricted zone
around polling places. While Tennessee’s 100 ft. zone falls within the
generally accepted range among the states, Louisiana’s 600 ft. zone is
the second largest (behind Hawaii's 1,000 ft. zone) and is significantly
out of line with the restricted zones of the remaining states.
Page 20.
therefore need for, the size of the restricted zone in
question. In Burson, this "modified burden of proof” was
justified by the long uninterrupted history of campaign-free
zone restrictions exemplified by the Tennessee statute in
question, which makes it difficult for states, without
sustaining some level of damage to or interference with the
election process, to demonstrate empirically the need for the
size selected for such restrictions.
However Burson’s rationale in this regard does not
support sustaining Louisiana’s 600 foot radius zone on a
"lack of empirical evidence" basis. Louisiana’s restricted
zone is of recent vintage, dating back only to 1960. In
addition, its 600 foot manifestation only dates back to 1980.
Additionally, Louisiana does have empirical evidence
that a 600 foot zone is not necessary to avoid interference at
the polls by petition solicitors, given the state’s history of
such solicitation being allowed in the immediate vicinity of
the state’s polls until the state’s recent decision, in October,
1992, at least partially in response to the Recail ’92 effort,
to restrict such access. Further the state’s recent forced
experiment, ordered by the Sth Circuit, with allowing
solicitation at 100 feet in the November 1992 general
election, and the absence of any problems at this limited
range, also provides empirical evidence that Louisiana’s 600
foot zone, the second largest in the nation, is neither
necessary, nor sufficiently narrowly tailored, to pass
constitutional muster on First Amendment political speech
grounds.
In addition, Louisiana’s 600 foot radius campaign
free zones in most instances, with the exception of
extremely rural areas, encompass significant numbers and
areas of traditional public fora such as streets, sidewalks and
parks. With limited exceptions, courts have historically
struck down content based restrictions on speech in
traditional public fora. United States v. Grace, 461 U.S.
171, 103 S.Ct. 1702 (1983). Louisiana can show no
Page 21.
a
compelling interest that is served by imposing its political
speech restrictions in areas assumed by its citizens,
including voters, to be areas historically available for public
and political discourse. Nor can Louisiana demonstrate the
necessity, aS required by the strict scrutiny standard
applicable to such content-based speech restrictions in a
public forum, of a geographically extensive zones. Because
of their enormous size, the Louisiana zones severely affect
political speech activities in public fora, such a streets,
sidewalks and parks.
Finally, the dissent in Burson noted that in the case
of such large area restricted zones, censorship rather than
the protection of voting rights might be found to be the
animating force behind the restriction. In Louisiana, the
evidence overwhelmingly supports this conclusion. The 600
foot zone was not applied by state officials to petition
activities until Recall ’92’s campaign to recall the present
governor. In addition the coincidence with petitioners’
recall campaign of the attorney general’s reversal of opinion
regarding the applicability of the statute to recall activities
and the legislature’s recent enactment of a statute
specifically proscribing recall petition activity within the 600
foot radius zone, LSA-R.S. 18:1300.6, demonstrate
Louisiana’s illegitimate censorial intent.
The Court should grant writs to reverse the Fifth
Circuit’s use of Burson to legitimate a zone 36 times the
size of that approved in Burson in the face of empirical
evidence that such a vast zone is neither necessary nor
narrowly tailored to serve any legitimate, much less
compelling, state interest and, in light of the further
unavoidable evidence that the motivating purpose of the
Louisiana statute is to censor certain kinds of political
speech, such as that undertaken by the petitioners.
Page 22.
Ill.
Finally, this Court should grant petitioners’
application for writ of certiorari to resolve the conflict the
decision in this case creates with the 11th Circuit decision
in Clean-Up ’84 and post-Burson decisions on this issue.
Although decided prior to Burson, Clean-Up ’84,
like the instant case, involved the constitutionality on First
Amendment grounds of a 300 foot polling place restriction
on non-ballot related petition solicitation, an issue not
addressed by this Court in Burson. Because non-ballot
related political speech does not implicate the voter
intimidation and election fraud concerns that Burson held
may justify restrictions on ballot-related political speech,
guidance from this Court will greatly assist the lower courts
in addressing First Amendment challenges to such
restrictions.
In addition, given the conflicting decisions of lower
court that have relied on Burson, this Court’s guidance on
how and where to draw that constitutional line referred to in
Burson for polling place political speech restricted zones is
essential to avoid continuation of conflicting decisions on
this issue.
Page 23.
CONCLUSION
The importance to democracy of vigorous grassroots
political speech, as exemplified by petitioners and their
counterparts in Clean-Up ’84, require this Court and the
lower courts to strike a proper and constitutionally sound
and sensitive balance between the rights of such political
speakers and the states’ legitimate governmental interests in
protecting the voting rights of all their citizens. For this
reason and those described above, petitioners urge this Court
to grant their petition for writ of certiorari.
Respectfully Submitted,
Tracy S. Pickerell *
709 Napoleon Street
Baton Rouge, Louisiana 70802
(504) 343-0411
Theodor A. Schirmer
32200 Mulholland Hwy.
Malibu, California 90265
(818) 889-1385
Katherine Wheeler
412 North 4th Street, Suite 200
Baton Rouge, Louisiana 70802
(504) 338-0306
* Counsel of Record Counsel for Petitioners
Page 24.
etnemeiaiieieel
APPENDICES TO
Petition for Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
APPENDICES
TABLE OF CONTENTS
Constitutional and Statutory Provisions .....
oe eee eee a
Fourteenth Amendment ..........
| ee rer ie ee
Opinion of the Fifth Circuit Court of
GE. 4-8 ae eh eo ORE ee ek
Opinion of the Fifth Circuit Court of Appeal,
Granting Injunction Pending Appeal ......
Order of the U.S. Surpeme Court Denying
Stay of Injunction Pending Appeal.......
Louisiana Supreme Court Answer to Certified
Question from Fifth Circuit Court of
CE hk Wah eae OR Oe RE ao ee
Judgment of the U.S. District Court, Middle
De Ge SUE bs eh trees arenes
Opinion of the U.S. District Court, Middle
ees Ge MAD 6 o's be ee ee ee
Transcript of Ruling on Hearings on Motion
to Quash, State of Louisiana v, Theodore A.
Schirmer, Louisiana 19th Judicial District
Court, Docket No. 5-93-133 ..........
Page ia.
APPENDIX A.
U.S. Constitution, First Amendment (1791):
Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
U.S. Constitution, Fourteenth Amendment (1868):
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they
reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty,
or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
LSA-R.S. 18:1462.
Acts Prohibited on Election Day: Electioneering; Exception;
Enforcement; Penalty
A. Except as otherwise specifically provided by law, it
shall be unlawful for any person, between the hours of 6:00
a.m. and 9:00 p.m. to perform or cause to be performed
any of the following acts within any polling place being used
in an election on election day or within any place wherein
absentee voting is being conducted, or wherein absentee
voting is being conducted, or within a radius of six hundred
feet of the entrance to any polling place being used in an
Page la.
election on election day or any place wherein absentee
voting is being conducted:
(1) To solicit in any manner or by any means
whatsoever any other person to vote for or against
any candidate or proposition being voted on in such
election.
(2) To remain within any such polling place or
place wherein absentee voting is being conducted or
within a radius of six hundred feet of the entrance of
any such polling place, except when exercising the
right to vote, after having been directed, in writing,
by an election commissioner or law enforcement
officer to leave the premises or area of a polling
place or after having been directed, in writing, by a
registrar or deputy registrar to leave the place
wherein absentee voting is being conducted.
(3) To hand out, place, or display campaign
cards, pictures, or other campaign literature of any
kind or description whatsoever.
(4) To place or display political signs, pictures,
or other forms of political advertising.
Page 2a.
APPENDIX B.
THEODOR A. SCHIRMER, NUMBER 92-3000
et al, Plaintiffs
Shelley E. Corrington,
Individually,
Et Al, Plaintiffs,
- Appellants
versus
EDWIN W. EDWARDS, Governor of the
State of Louisiana, and in His
Official Capacity, et al,
Defendants - Appellees
United States Court of Appeal, Fifth Circuit
Appeal from the United States District Court for the
Middle District of Louisiana.
Before POLITZ, Chief Judge, and REYNALDO G.
GARZA, and JOLLY, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Appellants appeal the district court’s adverse
judgment, which denied their constitutional challenge to
Louisiana’s campaign-free zone codified at LSA-R.S.
18:1462. Persuaded that Louisiana has a compelling interest
in creating a campaign-free zone, and that the statute is
narrowly drawn to achieve that end we AFFIRM.
Page 3a.
FACTS
The plaintiffs-appellants are a group of Louisiana
voters, who are members of the political organization called
Recall ’92, Inc. The principal objective of the group is to
recall Louisiana Governor Edwin Edwards. The recall
procedure, which is codified at LSA-R.S. 18:1300.1 et seq.,
requires signatures on a recall petition of not less than one-
third of the total electors of the voting area, collected and
submitted within a 180-day period.'
' In essence, this would require about 750,000 signatures.
Page 4a.
SE
In order to further their effort, the appellants seek to
establish that LSA-R.S. 18:1462 is unconstitutional.’
Section 1462 as interpreted by the Louisiana Supreme Court:
[P]roscribes on election day, outside of the polling
place itself but within a radius of six hundred feet
from the entrance thereto, all solicitation of
Signatures for a recall petition that is not on the
ballot that is to be voted on at the election for which
the polling place is open. [Section 1462] proscribes
in the polling place or said six hundred foot radius
? The current version of Section 1462 reads as follows:
§ 1462. Acts prohibited on election day: electioneering; exception;
enforcement; penalty
A. Except as otherwise specifically provided by law, it shall be
unlawful for any person, between the hours of 6:00 a.m. and 9:00 p.m.
to perform or cause to be performed any of the following acts within any
polling place being used in an election on election day or within any
place wherein absentee voting is being conducted, or wherein absentee
voting is being conducted, or within a radius of six hundred feet of the
entrance to any polling place being used in an election on election day
or any place wherein absentee voting is being conducted:
(1) To solicit in any manner or by any means whatsoever
any other person to vote for or against any candidate or
proposition being voted on in such election.
(2) To remain within any such polling place or place
wherein absentee voting is being conducted or within a radius
of six hundred feet of the entrance of any such polling place,
except when exercising the right to vote, after having been
directed, in writing, by an election commissioner or law
enforcement officer to leave the premises or area of a polling
place or after having been directed, in writing, by a registrar or
deputy registrar to leave the place wherein absentee voting is
being conducted.
(3) To hand out, place, or display campaign cards,
pictures, or other campaign literature of any kind or description
whatsoever.
(4) To place or display political signs, pictures, or other
forms of political advertising.
Page Sa.
all wearing of clothing or buttons bearing visible
words or symbols supportive of such recall.’
Prior to the November 3, 1992 election, appellants
brought suit to enjoin the application of Section 1462 so that
they would be able to obtain the required amount of
signatures within the 180-day window. The appellants
sought to circulate petitions, obtain signatures, wear buttons,
display paraphernalia, and pass out other materials to
support their cause at the November 3, 1992 election.
There was nothing on the ballot pertaining to the recall
effort.
On October 3, 1992, Theodor Schirmer was not
permitted to vote with a Recall 92 T-shirt at one location,
and then at another location was arrested for violating
Section 1462 by attempting to solicit signatures on a recall
petition. Shelley Corrington was also not permitted to vote
because she was wearing a T-shirt advertising the recall
effort. There were numerous other plaintiffs, who had
similar experiences in forwarding the recall drive.
PROCEDURE
The plaintiffs brought suit in the Middle District of
Louisiana pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3)
and (4) seeking declaratory and injunctive relief against the
application of the campaign-free zone. On October 19 and
20, 1992, the district court conducted a two-day trial to
determine the constitutionality of LSA-R.S. § 18:1462.
> The statement on the application of Section 1462 was issued by the
Louisiana Supreme Court in response to the prior panel's certification of
the question while the temporary restraining order pending appeal was
considered and granted.
Page 6a.
The plaintiffs launched three grounds of attack on
Section 1462: (i) the statute placed an excessive burden on
their First Amendment rights because it proscribed campaign
activity within a 600-foot radius around polling places; (ii)
even if constitutional, Section 1462 only applied to issues or
persons on the ballot; or alternatively (iii) the statute was
enforced in a discriminatory and content-rooted manner in
derogation of the plaintiffs’ First Amendment rights.*
The district court, relying principally on Burson vy,
Freeman, --- U.S. ---, 112 S.Ct. 1846, 119 L.Ed.2d 5
(1992), found that the statute was constitutional. The court
determined that Section 1462 created a constitutional
campaign-free zone around polling areas, and applied to
both issues and parties whether or not they were on the
ballot.
The plaintiffs appealed to the Fifth Circuit, and in
the interim sought temporary injunctive relief pending
appeal. The district court denied plaintiffs’ application for
a temporary restraining order; however, an earlier panel of
this court granted plaintiffs’ motion for an injunction
pending appeal. See Schirmer v, Edwards, No. 92-3900
(Sth Cir. Oct. 29, 1992). At long last, we are not able to
render a final decision on appellant’s claims.
DISCUSSION
The appellants assert on appeal that Section 1462 is
invalid under the First and Fourteenth amendments. They
contend: (i) Louisiana does not have a compelling interest
* The district court declined to rule on the plaintiffs’ discriminatory
application claims - persuaded that the issue would be better raised as a
defense to a state court criminal action. The appellants combine this
argument with their void for vagueness defense.
Page 7a.
in providing for a 600-foot campaign-free zone around its
polls; (ii) even if the state has a compelling interest in a
campaign-free zone, the statute is not narrowly tailored to
achieve that interest because 600 feet is excessive; (iii) the
statute is facially invalid because its content restriction is
substantially overbroad; and (iv) the statute is void for
vagueness.
We find that: (i) Louisiana has a.compelling interest
in maintaining campaign-free zones on election day; (ii) the
Statute is narrowly tailored to achieve that compelling
interest; (iii) the statute is not substantially overbroad; and
(iv) we need not address the void-for-vagueness argument.
Therefore, the district court’s decision is AFFIRMED.
i. Does Louisiana have a Compelling Interest in
Maintaining a Campaign-Free Zone around
its Polls During Elections?
Section 1462 posits the First Amendment’s guarantee
of the right to free speech against the state’s attempt to
secure its citizens’ right to vote in a environment free from
intimidation, harassment, confusion, obstruction, and undue
influence. This conflict of First Amendment rights
necessarily requires a compromise between the two. The
Supreme Court addressed the issue head on last term in
Burson _v, Freeman, --- U.S. ---, 112 S.Ct. 1846, 119
L.Ed.2d 5 (1992).
In Burson, the court found a Tennessee Statute that
proscribed campaign activity within a 100-foot radius of its
polls on election day to be constitutional. The court found
that the statute implicated three First Amendment concerns;
(i) regulation of political speech; (ii) regulation of speech in
a public forum; and (iii) regulation of speech based on
Page 8a.
content. The Burson plurality’ found that a content-based
restriction on political speech in a public forum is subject to
strict scrutiny.® Strict scrutiny requires Louisiana to show
that Section 1462 is narrowly tailored to achieve a
compelling governmental interest. See Perry Educ. Ass’n
y. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103
S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).
[1] Undeniably, both the Tennessee statute and
Section 1462 are content-based restrictions. Each singles
out and sanctions public discourse on politics - an area deep
within the confines of the First Amendment. See, e.g., Eu
y. San Francisco County Democratic Cent, Comm., 489
U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271
(1989) (citations omitted) ("the First Amendment has its
fullest and most urgent application to [political] speech").
Clearly, Section 1462 does not apply to any other type of
speech.’ Consequently, the statute is not a content-neutral
> Justice Blackmun wrote the plurality opinion that Chief Justice
Rehnquist, and Justices White and Kennedy joined. Justice Kennedy
filed a concurring opinion. Justice Scalia filed an opinion concurring in
the judgment. Justice Stevens wrote the dissent, which was joined by
Justices O’Connor and Souter. Justice Thomas took no part in the
decision.
® Justice Scalia concurred in the judgment of the court. In doing so, he
concluded that the regulation at issue was a reasonable viewpoint-neutral
regulation of speech in a non-public forum. Justice Scalia concluded that
the areas adjacent to a polling forum on or near election day do not
constitute a traditional public forum and, thus the statute should not be
subjected to the strict scrutiny standard. See Burson -- U.S., ---, 112
S.Ct. at 1859-61 (Scalia, J., concurring) (citing Greer v. Spock, 424
U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976)).
’ The court below noted that it would be permissible to advocate on the
freedom of choice or even to sell Tupperware in the campaign-free zone.
Page 9a.
——_Eee—
time, place, or manner restriction and, thus, is subject to
Strict scrutiny.
{2] Moreover, the statute must still be
constitutionally gauged under the strict scrutiny standard
even tough it is viewpoint-neutral. See, e.g., Boos v.
Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1162, 99
L.Ed.2d 333 (1988) (viewpoint-neutral statute that
prohibited use of signs within 500 feet of foreign embassies
content-based); see also Consolidated Edison Co, v, Public
Serv, Comm’n, 447 U.S. 530, 537, 100 S.Ct. 2326, 2333,
65 L.Ed.2d 319 (1980) ("[t]he First Amendment’s hostility
to content-based resirictions extends not only to restrictions
on particular viewpoints, but also to prohibition of public
discussion on an entire wpic").
In Burson, the state of Tennessee proffered two
grounds upon which to support its compelling interest in a
campaign-free zone: (i) the protection of its citizens’ right
to vote freely for the candidate of their choice; and (ii) the
protection of the right to vote in an election that is
conducted with integrity and reliability. The Supreme Court
agreed that these interests were compelling, but the court
noted that "[t]o survive strict scrutiny...a state must do
more,... it must demonstrate that the law is necessary to
serve the asserted interest.” Id., --- U.S. at ---, 112 S.Ct.
at 1852.
The court traced the longstanding history of election
problems that fostered the need for reform, which led to the
Tennessee statute in Burson, as well as Section 1462. See
id., --- U.S. at ---, 112 S.Ct. at 1852-55. The court noted
that the two-fold problem that these regulations were enacted
to cure was: (i) voter intimidation; and (ii) election fraud.
Id., --- U.S. at ---, 112 S.Ct., at 1855. Finally, the
plurality concluded that “wide-spread and time-tested
Page 10a.
consensus demonstrates that some restricted zone is
necessary in order to serve the States’ compelling interest in
preventing voter intimidation and election fraud." Id.*
Louisiana State Representative Charles Lancaster,
who authored the 1980 amendments to Section 1462,
testified before the court below. The 1980 amendments
expanded the campaign-free zone from 300 feet to 600 feet.
Representative Lancaster testified that the statute primarily
sought to guard against: (i) voter intimidation; (ii) voter
harassment; and (iii) to provide unobstructed access to the
polls. Lancaster testified that the problem largely emanated
' from poll workers, who bombarded voters in and around the
polls. Apparently, it was common practice to use poll
workers to inundate voters just prior to their entry to the
polls. The legislature felt compelled to remedy the situation
statutorily. The intent of the statute was to encourage voter
participation. Under the statutorily created campaign-free
zone, voters are free to vote without passing through a
gauntlet of poll workers.
We conclude that Louisiana undoubtedly has a
compelling interest to protect its citizens’ right to vote.
Burson reaffirmed that states have a compelling interest in
protecting the right to vote — “a right at the heart of our
democracy." Burson, --- U.S. at ---, 112 S.Ct. at 1851; see
also Anderson v, Celebrezze, 460 U.S. 780, 788 n. 9, 103
S.Ct. 1564, 1570 n. 9, 75 L.Ed.2d 547 (1983).
® The dissent interpreted the purpose of the statute somewhat differently
reasoning that the statute served: (i) to protect orderly access to the
polls; and (ii) to prevent last-minute campaigning. Id., --- U.S. at ---,
112 S.Ct. at 1861 (Stevens, J., dissenting).
Page | la.
ii. Is the 600-Foot Limitation in Section 1462
Narrowly Tailored to Protect Louisiana’s
Compelling Interest?
Given the fact that Louisiana has a compelling
interest in establishing a campaign-free zone, the question
then becomes whether 600 feet is a valid limitation.
Interestingly, Louisiana’s statute is the second largest
limitation in the country. Hawaii’s 1,000-foot campaign-
free zone is the largest in the country. See Haw.Rev.Stat.
§§ 11-132 & 19-6(7)’
It is difficult to demarcate the point where the state’s
compelling interest in a campaign-free zone ceases and
beyond which any content-based infringement becomes
unconstitutional. The Burson court recognized this when it
held “that some restricted zone around the voting area is
necessary to secure the State’s compelling interest."
Burson, --- U.S. ---, 112 S.Ct. at 1856 (emphasis in
Original). Justice Blackmun tempered this statement when
he reasoned “at some measurable distance from the
polls...governmental regulation...could effectively become
an impermissible burden akin to the statute struck down in
Mills v, Alabama, 384 U.S. 214 86S.Ct. 1434, 16 L.Ed.2d
484 91966).""°
> Texas prohibits campaigning with a car microphone within 1,000 feet
of the polling place on election day. See Tex.Elec.Code Ann § 61.004.
10 In Mills, the Supreme Court struck down a statute that made it a
crime for a newspaper editor to publish political editorials on election
day. Mills, 384 U.S. at 220, 86 S.Ct. at 1437. Interestingly, the Mills
opinion distinguished the present situation when it admonished “[wJe
should point out at once that this question in no way involves the extent
of a state’s power to regulate conduct in an around the polls in order to
maintain peace, order, and decorum there.” Id. at 218, 86 S.Ct. at
(continued...)
Page 12a.
The appellees contend that the state is not required to
prove that the 600-foot zone is perfectly tailored, as long as
it does not significantly impinge on constitutionally protected
rights." The Burson plurality concluded that Tennessee’s
campaign-free zone represented only a “minor geographic
limitation” that did not significantly impinge upon
constitutionally protected rights. Burson, --- U.S. ---, 112
S.Ct. at 1857. Justice Blackmun explained "we simply do
not view the question whether the 100-foot boundary line
could be somewhat tighter as a matter of ’constitutional
dimension. Munro y, Socialist Workers Party, 479 U.S.
189, 197 [107 S.Ct. 533, 538, 93 L.Ed.2d 499] (1986).
Reducing the boundary [line] is a difference only in degree,
not a less restrictive alternative in kind,” Burson_--- U.S,
at ---, 112 at 1857 (emphasis added)
Valeo, 424 U.S. 1, 30, 96 S.Ct. 612, 640, 46 L.Ed.2d 659
(1976)). This statement reflects the difficulty that lies in
determining the exact point at which to draw the line, and
it suggests that the plurality would have supported a 600-
foot limitation.
a F ..continued)
1436-37.
'' The genesis of the “significantly impinge” language found in the
Burson plurality’s opinion came from Munro, 479 U.S. at 196, 107
S.Ct. at 537.
[Requiring proof that a 100-foot boundary is perfectly tailored
to deal with voter intimidation and election fraud ‘would
necessitate that a State’s political system sustain some level of
damage before the legislature could take corrective action.
Legislatures, we think, should be permitted to respond to
potential deficiencies in the electoral process with foresight,
rather than reactively, provided that the response is reasonable
and does not significantly impinge on constitutional rights.’
Burson, --- U.S. at --- 112, S.Ct. at 1857 (emphasis in original) (quoting
Munro, 479 U.S. at 195-96, 107 S.Ct. at 537-38).
Page 13a.
OO ————————————
The appellants point to the numerous exit-polling
cases that have invalidated much smaller restrictions around
polling areas. For example, in Daily Herald Co, v, Munro,
838 F.2d 380 (9th Cir. 1988), the Ninth Circuit held a 300-
foot restriction on exit-polling to be unconstitutional on its
face. Id. at 389 (the content-based statute was not narrowly
tailored). Daily Herald is representative of many cases
holding that much smaller limitations do not survive strict
scrutiny in the exit polling context. See, e.g., National
Broadcasting Co, Inc., v. Cleland, 697 F.Supp. 1204, 1215
(N.D.Ga. 1988) (holding 150-foot exit-polling limitation not
narrowly drawn, but construed to be constitutional up to 25
feet). We reject the application of the exit-polling cases to
the present context because the underlying state interests
differ in each case. While there is no evidence of wide-
spread voter harassment or intimidation by exit-pollers,
there is evidence that poll workers do create these problems.
Consequently, the state’s compelling interest is called to
greater heights in creating a campaign-free zone.
Further, Representative Lancaster testified that the
300-foot limitation, which preceded the 1980 amendments,
did not prevent the continued hiring of poll workers. The
600-foot limitation was created to dissuade politicians from
hiring poll workers. Poll workers were one of the principal
causes of voter intimidation and harassment that was
perceived to be causing low voter turnout. Further,
according to Lancaster, the 600-foot limitation has served its
purpose and poll workers are no longer used.
The Louisiana legislature tried to utilize a 300-foot
campaign-free zone to protect its citizens’ rights to vote.
The legislature, thus, found a less restrictive alternative
inadequate. Only after the 300-foot limitation failed to
remedy the poll worker problem did the legislature take the
next step to 600 feet. Therefore, we find that Section
Page 14a.
1462’s geographic limitation is narrowly tailored to achieve
a compelling governmental interest.'?
ili. Is Section 1462 Substantially Overbroad?
[3] The appellants next contend that Section 1462
is overbroad because it applies to: (1) the political speech
of individuals not on the ballot (“non-ballot political
speech"); and (2) buttons and T-shirts (“passive political
speech").?
The appellants argue that Louisiana does not have a
compelling interest in banning non-ballot political activity
nor passive political speech around the polls. Appellees
offer two defenses with regard to Section 1462’s total ban
on political speech: (i) if only ballot-related campaigning
were proscribed voter intimidation and harassment problems
'? While we have found that Louisiana’s campaign-free zone is narrowly
tailored, we note that in Clean-Up ’84 v. Heinrich, 759 F.2d 1511, 1514
(11th Cir.1985), the Eleventh Circuit held that a 100-yard (300-foot)
campaign-free zone was unconstitutionally overbroad. Id. (cited by the
Burson dissent).
Further, the only post-Burson case to directly address the
campaign-free zone issue appears to be Calchera v. Procarione, 805
F.Supp. 716 (E.D.Wisc. 1992). The Calchera decision focused on the
plurality opinion in Burson and noted the opinion’s statement that at
some point a campaign-free zone would be over-inclusive. The court
held that the statute’s 500-foot proscription was overbroad, and noted
that it imposed a much greater infringement on the First Amendment that
the 100-foot limitation addressed in Burson. See Calchera, 805 F.Supp.
at 719-20. However, the Wisconsin statute in Calchera was found to
prohibit homeowners from expressing their political views on their own
property. The district court grasped on this factor to distinguish Burson.
See id, at 720. There is no evidence in the record before us that the
Louisiana statute is applied similarly.
'? We will use the term “passive political speech” to refer to buttons and
t-shirts.
Page 15a.
would still exist because of enforcement and security
problems; and (ii) solicitation for a recall petition has a
greater disruptive potential than all other political speech.
The first argument, that suppression of ballot-related
activity alone is insufficient, is rooted in the argument that
ballot campaigners could achieve their ends by posing as
non-ballot campaigners in order to gain access to the
confines of the forbidden 600-foot radius. Representative
Lancaster and Representative Accardo testified that an
across-the-board ban on politicking was necessary to protect
voters’ rights because any exceptions to the total ban on
political speech would necessarily create the need for on the
spot enforcement.
Lancaster and Accardo stated that to allow any
politicking in the campaign-free zone would open the door
to subterfuge. If some people were allowed to engage in
political speech in the campaign-free zone it would create
two-problems: (i) on-the-spot enforcement decisions about
what was proscribed by the statute; and (ii) increased
security needed to weed out those engaged in ballot related
speech.
To avoid this morass the legislature decided that a
total ban was necessary. They reasoned that if they had to
police the campaign-free zone to the extent necessary to
weed out the disguised poll workers, then voters would still
be intimidated and harassed. The heightened security itself
would no doubt result in voter intimidation - the evil they
sought to cure. Further, problems with on the spot decision
making and varying degrees of enforcement would result in
uneven application of the statute. Consequently, Section
1462 is not overbroad.
Justice Stevens, in his dissent in Burson, made the
only known reference with regard to proscribing non-ballot
Page 16a.
campaigning around polling areas. Justice Stevens noted
that the Tennessee statute did not apply to “political debate
and solicitation concerning issues or candidates not on the
day’s ballot.” Burson, --- U.S. at ---, 112 S.Ct. at 1864
(Stevens, J., dissenting) (emphasis added). Stevens also
noted that the Tennessee statute did not prohibit exit polling,
leaflets, posters or buttons. He reasoned that these factors
“severely undercut[{] the credibility of [Tennessee's]
purported law-and-order justification.” Id. (Stevens, J.,
dissenting). These statements suggest that Justice Stevens
would be more comfortable with an across the board ban on
politicking in the campaign-free zone based on the same
logic forwarded by Representatives Lancaster and Accardo.
In any event, the issue -of proscribing non-ballot
campaigning was not an issue in Burson and appears to be
an issue of first impression.
The appellees further argue that there is an important
distinction between a recall petition and other campaign-
related activity. In all other campaign activity the voter is
free to exercise his rights in a secret ballot booth after
having weighed and observed all campaigning activity
whether it be far or near the polling venue. However, in
the recall petition context, even if there is no recall on the
ballot, voters must either sign the petition on the spot or the
parties seeking their signature will immediately know that
they have been rejected. The appellees contend that this
renders the state’s compelling interest to protect the voter to
be even greater when weighed against the First Amendment
rights of those seeking to forward the recall effort.
This argument is forceful and it is true that this
distinction is meaningful. However, Section 1462 does not
target only recall petitions nor does it even mention them.
Further, there is no evidence that the legislature considered
Page 17a.
the 600-foot limit with regard to recall petitions in 1980
when it was amended."*
Accordingly, we find that a total ban on politicking
within the campaign-free zone is not overbroad. In fact, the
total ban in the present context is the most defensible
position. The state has a compelling interest in protecting
its voters and the proffered reasons given by the legislature
demonstrate a reasonable compromise to the problems that
necessitated the campaign-free zone in the beginning.
iv. Is Section 1462 Void for Vagueness?
The appellants challenge Section 1462 on vagueness
grounds contending that it is void because it is subject to
discriminatory enforcement and fails to provide fair notice.
The district court found that this issue would be better suited
as a defense to a criminal prosecution. The Burson court
treated this defense similarly when it stated "[i]n any event,
these arguments are “as applied” challenges that should be
made by an individual prosecuted for such conduct."
Burson, --- U.S. at ---, n. 13, 112 S.Ct. at 1857, n. 18.
In light of our prior panel’s certification to the
Louisiana Supreme Court with regard to the statute’s
application to non-ballot matters it is clear now that the
Statute applies to non-ballot matters. However, there was
some confusion created by some contrary attorney general
Opinions issued previously. In any event, the appellants do
not appear to be in a position to assert this argument at this
time.
'* Since the advent of this case Louisiana has enacted a statute that
expressly creates a campaign-free zone applicable only to recall
petitions. LSA-R.S. § 18:1300.6. We express no opinion as to the
constitutionally of Section 1300.6.
Page 18a.
CONCLUSION
Louisiana has a compelling interest in establishing a
campaign-free zone. The 600-foot limitation is narrowly
drawn and not an excessive infringement on the First
Amendment. Thus, the geographical limitation survives
strict scrutiny. Moreover, the statute creates a total ban on
politicking within the zone. The need for a total ban is
compelling and Section 1462 is not overbroad. Legislatures
must necessarily compromise between two competing First
Amendment interests in creating a campaign-free zone.
Louisiana’s zone has evolved over time and at present
represents a constitutional compromise. Further, the
appellants’ void for vagueness argument is better left to
another day. Therefore, the judgment of the district court
is AFFIRMED.
Page 19a.
APPENDIX C.
THEODOR A. SCHIRMER, NUMBER 92-3000
et al, Plaintiffs
Shelley E. Corrington,
Individually,
Et Al, Plaintiffs,
- Appellants
versus
EDWIN W. EDWARDS, Governor of the
State of Louisiana, and in His
Official Capacity, et Al,
Defendants - Appellees
United States Court of Appeal, Fifth Circuit
Before GARWOOD, DAVIS and JONES, Circuit Judges.
BY THE COURT:
Before the Court is the motion of Plaintiffs-
Appellants for injunction pending appeal.
Plaintiffs-appellants are parties seeking to collect
Signatures on a petition for a recall election seeking the
recall of Louisiana Governor Edwin Edwards pursuant to
La. R.S. 18:1300.0, et seg. They seek to collect such
Signatures in the vicinity of polling places on the general
election day of November 3, 1992. Plaintiffs do not seek to
collect these signatures within any such polling places; they
do apparently intend to vote while wearing clothing or
buttons supportive of the recall effort. Neither the recall
nor Governor Edwards is on the November 3 ballot, and
plaintiffs do not seek to solicit any signatures, or conduct
Page 20a.
any activity, with respect to any matter or proposition that
is on the November 3 ballot. Defendants-appellees are the
Governor of Louisiana, the Louisiana Attorney General, and
the Secretary of State of Louisiana. They have taken the
position that La.R.S. 18:1462A prohibits the activity in
which Plaintiffs desire to engage within a radius of six
hundred feet of the entrance to any polling place, even
through none of the matters as to which Signatures are
sought and the activity desires to be conducted is related to
any matter on the ballot.'
Plaintiffs brought this suit in the court below seeking
a preliminary and permanent injunction prohibiting
' Section 1462 provides:
"§ 1462. Acts prohibited on election day: electioneering; exception;
enforcement; penalty
A. Except as otherwise specifically provided by law, it shall be
unlawful for any person, between the hours of 6:00 a.m. and 9:00 p.m.
to perform or cause to be performed any of the following acts within any
polling place being used in an election on election day or within any
place wherein absentee voting is being conducted, or wherein absentee
voting is being conducted, or within a radius of six hundred feet of the
entrance to any polling place being used in an election on election day
or any place wherein absentee voting is being conducted:
(1) To solicit in any manner or by any means whatsoever any other
person to vote for or against any candidate or proposition being voted on
in such election.
(2) To remain within any such polling place or place wherein
absentee voting is being conducted or within a radius of six hundred feet
of the entrance of any such polling place, except when exercising the
nght to vote, after having been directed, in writing, by an election
commissioner or law enforcement officer to leave the premises or area
of a polling place or after having been directed, in writing, by a registrar
or deputy registrar to leave the place wherein absentee voting is being
conducted.
(3) To hand out, place, or display campaign cards, pictures, or
other campaign literature of any kind or description whatsoever.
(4) To place or display political signs, pictures, or other forms of
political advertising.”
Page 21a.
Defendants from denying to Plaintiffs what Plaintiffs
contend are their rights under the First Amendment of the
United States Constitution to engage in the above described
activity, and contending that such activity is not prohibited
by section 1462A. Defendants contend that the activity
Plaintiffs desire to engage in is prohibited by section 1462A
and that section 1462A, as so construed, is constitutional
under the decision in Burson v. Freeman, 112 S.Ct. 1846
(1992). Plaintiffs contend to the contrary, arguing
principally that the six hundred foot radius established by
section 1462A is excessive as compared to the one hundred
foot radius sustained in Burson, and that the state’s interest
in proscribing conduct such as theirs is attenuated because
their proposed activities do not relate to any matter being
voted on, unlike the situation in Burson.
On October 19, and 20 the district court held a two-
day evidentiary hearing on both the preliminary injunction
and the merits, at the conclusion of which the court orally
rendered its findings and conclusions in open court. The
district court ruled that section 1462A did apply to the
activities Plaintiffs desired to engage in, and that the statute
as sO ponsimued was facially constitutional under Burson.’
The district court denied Plaintiffs’ request for temporary
and permanent injunctive relief and dismissed their suit with
prejudice. Plaintiffs appeal to this Court. As noted,
Plaintiffs have moved this Court to issue an injunction
pending appeal enjoining Defendants
"from enforcing La. R.S. 18:1462 against Plaintiffs
in such a manner as to preclude Plaintiffs from:
? The district court declined to rule on Plaintiffs’ claim that the statute
was being discriminatorily applied to Plaintiffs in certain particular
instances, ruling that such discriminatory application should be addressed
in state court proceedings, particularly those in defense of any
prosection.
Page 22a.
(a) during the period of absentee voting, October 22
through October 28, 1992, and on election day,
November 3, 1992, circulating, while on public
property limited to streets, sidewalks and parks in
the vicinity of polling places, a recall petition
sponsored by Recall ’92 to call an election to recall
the present governor of the State of Louisiana,
Edwin Edwards; or
(b) voting, whether absentee or on election day,
November 3, 1992, ,while wearing ’Recall ’92’ t-
shirts, buttons or other articles of clothing .. ."
Plaintiffs argue in support of the motion for
injunction pending appeal that if they are not granted such
relief they will, as a practical matter, be forever barred from
soliciting at polling places on behalf of the recall petition.
This is because under La. R.S. 18:1300.1 ef seq. all of the
required signatures - in this instances approximately 750,000
minimum, a number that Plaintiffs apparently have not
reached, - must be obtained within a 180-day period
commencing with the initial circulation of such a petition,
such period in this case ending on December 14, 1992 (as
we understand it, no election is scheduled in Louisiana
between now and December 14 except the November 3
general election). They also contend that polling places are
a particular good place for them to seek signatures, because
of the congregation of people there and the fact that under
Louisiana law the petition must have exact information
respecting the registered voter’s name, ward, precinct, and
address as these appear on the rolls of the registrars of
voters in the states. |
On October 27, 1992, we certified to the Louisiana
Supreme Court the following question:
"Whether La. R.S. 18:1462A proscribed on election
day, outside of the polling place itself but within a
Page 23a.
radius of six hundred feet from the entrance thereto,
all solicitation of signatures for a recall petition that
is not on the ballot that is to be voted on at the
election fort which the polling place is open, and in
the polling place or said six hundred foot radius all
wearing of clothing or buttons bearing visible words
or symbols supportive of such recall?"
The Louisiana Supreme Court on October 29, stating
that although “subsection (1) does not apply to the present
case, we believe subsections (3) and (4) clearly proscribe the
conduct at issue," answered the certified question as follows:
"La. R.S. 18:1462(A)(3) proscribes on election day,
outside of the polling place itself but within a radius
of six hundred feet from the entrance thereto, all
solicitation of signatures for a recall petition that is
not on the ballot that is to be voted on at the election
for which the polling place is open. La. R.S.
18: 1462(A)(4) proscribes in the polling place or said
six hundred foot radius all wearing of clothing or
buttons bearing visible words or symbols supportive
of such recall.”
We conclude that Plaintiffs have shown the requisites
for temporary injunctive relief pending appeal to the extent
such relief is herein granted.’ We have not hesitated to
> We said in Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384,
386 (Sth Cir. 1984):
"In order to secure a preliminary injunction, the movant has the
burden of proving four elements: (1) a substantial likelihood of
success on the merits; (2) a substantial threat that the movant
will suffer irreparable injury if the injunction is not issued; (3)
that threatened injury to the movant outweighs any damage
injunction might cause to the opponent; and (4) that the
(continued...)
Page 24a.
grant such relief ourselves in an appropriate case. See Bran
v. Independent American Savings Ass'n, 838 F.2d 739 (Sth
Cir. 1988); Florida Businessmen v. City of Hollywood, 648
F.2d 956 (Sth Cir.1981); Fed.R.App. P. 8; 28 U.S.C. §
1651.
The record makes clear that there is a substantial
threat that Plaintiffs will suffer irreparable injury if not
allowed to solicit in the vicinity of polling places on
November 3. A substantial part of this signature gathering
strategy has been reasonably based on such anticipated
3(...continued)
injunction will not disserve the public interest. Dallas Cowboy
Cheerleaders v. Scoreboard Posters, Inc., 600 F.2d 1 184, 1187
(Sth Cir. 1979).
The decision to grant or deny a preliminary injunction lies
within the discretion of the district court and may be reversed on appeal
only by a showing of abuse of discretion. City of Meridian, Mississippi
v. Algernon Blair, Inc., 721 F.2d 525, 527 (Sth Cir. 1983). The four
prerequisites for preliminary injunctive relief are mixed questions of fact
and law. In reviewing the actions of the district court of abuse of
discretion, we uphold the district court’s findings of fact unless clearly
erroneous. Fed.R.Civ.P. 52(a). The court’s conclusions of law,
however, “are subject to broad review and will be reversed if incorrect.”
Commonwealth Life Insurance Co. v. Neal, 669 F.2d 300, 304 (Sth Cir.
1982)."
In Laurenzo v. Miss. H.S. Activities Ass ’n, 708 F.2d 1038, 1042
(Sth Cir. 1983), we noted that for an injunction pending appeal the
likelihood of success standard could be modified if a substantial case on
the merits were presented and the equities weighed heavily in the
movant’s favor.
The district court here did not separately address the temporary
injunction from the merits, although we can infer from its disposition of
the merits that it found Plaintiffs had not met their burden under the first
factor, “substantial likelihood of success on the merits.” The district
court did not address the other temporary injunction factors. In denying
Plaintiffs’ motion for injunction pending appeal, the district court simply
referred to its decision on the merits.
Page 25a.
solicitation.* The November 3 election provides one of their
prime opportunities to gather signatures, and no other such
opportunity will present itself before December 14, 1992,
when this petition will be wholly invalid if the requisite
number of signatures has not then been procured.°
Moreover, .we conclude that should we deny
Plaintiffs interim relief in this respect, the threatened injury
to them outweighs any damage that granting such relief
would cause Defendants, and that the granting of such relief
would not disserve the public interest. The evidence
* The “being voted on in such election” language of clause (1) of
section 1462A suggests that such solicitation is not prohibited. Although
clauses (3) and (4) are not so limited, construing them to cover such
solicitation might have appeared to render clause (1) redundant. An
October 5, 1990, unpublished opinion of the Louisiana Fourth Circuit
Court of Appeal in Nathaniel Lacour, et al v. State of Louisiana, et al.
o. 90-C-12772) held that solicitation of signatures for a petition for a
recall election of certain local school board members was prohibited
under section 1462A notwithstanding neither such matter nor the
members in question were on the ballot. However, under Louisiana law
unpublished opinions are not precedential, Louisiana Uniform Rules -
Courts of Appeal, Rule 2-16.3, and the Lacour opinion is extremely
brief and cites no authority. Until October 29, 1992, no other Louisiana
court had spoken to the matter. Since Lacour, two Louisiana attorney
general opinions, No. 91-597, November 12, 1991, and No. 92-650,
September 24, 1992, held such solicitation not prohibited by section
1462A where the matter was not on the ballot, but did not cite Lacour.
About a week before this suit was filed, the Louisiana Attorney General,
in opinion No. 92-650(A), October 1, 1992, withdrew those two prior
opinion and, relying whoily on Lacour, ruled that such solicitation was
prohibited notwithstanding that the matter in question was not on the
ballot.
> Plaintiffs also ask that we enjoin pending appeal any prohibition of
their wearing “Recall ’92 t-shirts, buttons or other articles of clothing”
while voting on November 3. We do not believe that Plaintiffs will
suffer irreparable harm or significant injury absent such relief;
moreover, the interior of the polling place is a matter of greater interest
to the state. We hence deny interim relief in this respect.
Page 26a.
adequately shows that Plaintiffs intend to and are capable of
conducting their solicitation properly and without disruption.
Assuming the requisite likelihood of success, a matter
discussed below, we cannot view the protection of such
significant exercise of First Amendment rights as contrary
to the public interest. See Florida Businessmen at 958.
We turn finally to Plaintiffs’ likelihood of success on
the merits.
We note that the distance prescribed by section
1462A is 600 feet, 6 times that sustained in Burson; the area
involved is more that 1,130,000 square feet, approximately
36 times as large as that invoived in Burson (31,400 square
feet). This is greater than any state except Hawaii, which
uses a 1,000 foot radius. Only two other states, Kentucky
and Wisconsin, each five hundred feet, exceed three
hundred feet. Some 37 or 38 states use 250 feet or less,
some 25 of these using 100 feet or less. See Note,
Defoliating the Grassroots: Election Day Restrictions in
Political Speech, 77 Geo.L.J. 2137, 2146-47, 2196-2200
(1989). So far as we have been able to determine,
Louisiana first has a specific protected zone outside the
polling place in 1960, using a three hundred foot radius.
La. R.S. 1534; Acts 1960, No. 221. These provisions
eventually came into section 1462, which was amended in
1980 to increase the distance from three hundred to six
hundred feet. There is no indication of any legislative
history, legislative committee reports, or findings of any
Study or research to explain or justify the amendment.
The legislator who authored the amendment, a
witness for Defendants, testified it was intended to
substantially reduce the utility, and hence the use, of
volunteer and paid campaign workers ("poll workers")
contacting voters on their way to the polls. He testified that
this was thought desirable for a variety of reasons: to avoid
“making that one last attempt to influence a voter one way
or another"; “many of these poll watchers were paid....
Page 27a.
{I]f we could do away with the poll workers it would save
the candidates in our area a great deal of money"; the
election commissioners were often busy trying to keep
individuals out of the three hundred foot area; there were
sometimes “altercations” between “workers of candidates
running against each other"; “one of the reasons . . . for the
law was not to have people hassled in any way at all when
they go to vote to try to encourage higher voter
participation"; to change the situation where “a lot of the
things that were handed out on election day were not correct
. . . . [W]hen that happens in an election, you don’t have a
chance to respond to it if it’s done on election day because
the election is over before you have any chance... ." He
Stated that “we don’t have poll workers at election precincts
any more. That was the real purpose of the legislation and
it has generally achieved that objective.
Another representative, a witness for the Defendants,
who was on the relevant committee and supported the 1980
amendment, testified that he did so “because in the district
I live in, the 300 foot limit was very often not enough
distance to keep people who were engaged in political
activities from intersecting the voters who were going to the
polls . . . . [MJaybe half of the precincts in my legislative
district . . . . probably had parking lots which were outside
‘of the 300 foot limits” and in such instances voters "as they
got out of their cars and attempted to walk to the polls, very
often were greeted by people handing out literature, people
with signs, people trying to convince them that they should
vote one way or another.” He further stated “I think for
some people it’s intimidating” and “I think it might
discourage people from voting” because “I think they
generally would like to make up their minds on who they
are going to vote for, what they are going to vote for or
against, and not be bothered with last minute efforts to
change their minds." He also stated that
Page 28a.
"ninety-five percent of the time . . . when people
leave their houses, they’ve made up their minds on
who they’re going to vote for or what issue they are
going to vote for or against and that’s the way it
Ought to be. And, I think that it would be good that
if on election day people had the time to consider all
of the issues, consider all of the paraphernalia that’s
been handed out, all the campaign rhetoric, arid to
make up their minds in a logical way and not have
last minute efforts to change their minds."
the witness further explained that although the six hundred
foot limit did not wholly eliminate poll workers, with that
limit “except in very rare instances" voters were no longer
subjected to being contacted by such individuals after
parking and while walking from their cars to the polling
place.
Burson considerably relies on the consensus among
the states. As Louisiana’s is the second greatest restrictive
zone of all of the states, using a radius twice the size of that
in any of the forty-six of the states, Burson is to that extent
less than strongly supportive of Defendants’ position.
Although the state has offered some justification for
the six hundred foot extent of its prohibited zone, these
justifications as applied to political activity not related to any
matter on the ballot have limited relevance to the core
concerns relied on in Burson, which were protecting the
integrity of the ballot from fraud and intimidation. Persons
conducting political activity not related to a matter on the
ballot have no incentive to attempt to prevent people from
voting or to affect how they vote at the polling place, and
the voters are certainly less likely to perceive that the
activities of such persons are aimed at their voting or how
they vote in the polling place. While there was evidence
that it might be administratively confusing to distinguish
between the two, this testimony was more in the way of
Page 29a.
speculation as opposed to being based on actual experience. °®
There may be some reasons in the nature of prohibiting
overcrowding or physical obstruction that would justify
eliminating a broad range of conduct in the immediate
vicinity of the entrance to the polling place. But nothing
suggests that such justification would have any significantly
realistic application to nonballot-related activities at anything
near approaching the six hundred foot distance specified in
the statute.
Prohibiting all political speech, whether or not ballot
related, within a six hundred foot radius, may well be
sufficiently narrowly tailored for Burson purposes.
We do not ultimately decide the merits of this case.
But we are convinced that Plaintiffs have made a sufficient
showing of a substantial case, with the equities being
correspondingly in their favor, to justify a limited injunction
pending appeal.
Accordingly, IT IS HEREBY ORDERED as follows:
Defendants, their agents and employees, and all
persons acting in concert with them, are hereby enjoined,
pending further order of this Court, from enforcing La. R.S.
18:1462 in such a manner as to preclude on November 3,
1992, the soliciting, on public streets, sidewalks or parks (or
other outdoor public areas in which political solicitation is
‘allowed under Louisiana law on days other than election or
absentee voting days) not closer than one hundred feet to the
entrance of any polling place, or persons to sign, or not to
sign, a petition to call a recall election to recall Governor
Edwin Edwards (or any other petition to call an election
® There is no evidence that the legislature specifically considered this
aspect of the matter, other that the wording of the statute itself. The
legislator who sponsored the 1980 amendment increasing the distance to
six hundred feet testified: “I do not recall specifically any discussion of
anything other than the actual people being at the polls for or on behalf
of a candidate of an issue to be voted upon. That was what we were
addressing.”
Page 30a.
with respect to any person or proposition not on the
November 3, 1992 ballot), provided such soliciting is
carried out in a peaceable, quiet, and orderly manner.
Except as otherwise ordered, the request for
injunction pending appeal is DENIED.
Page 3la.
APPENDIX D.
THE SUPREME COURT
OF THE UNITED STATES
ORDER LIST
NOVEMBER 2, 1992
ORDER IN PENDING CASE
A-352
EDWIN W. EDWARDS, GOVERNOR OF LOUISIANA,
ET AL. v. THEODOR A. SCHIRMER, ET AL.
The application for stay of injunction entered by the
United States Court of Appeals for the Fifth Circuit
presented to Justice Scalia and by him referred to the Court
is denied.
Page 32a.
| pee Sai
APPENDIX E.
SUPREME COURT OF LOUISIANA
No. 92-CQ-2829
THEODOR A. SCHIRMER, ET AL.
v.
EDWIN W. EDWARDS, ET AL.
CERTIFIED QUESTION FROM THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
PER CURIAM
Pursuant to Rule XII of the Rules of the Supreme
Court of Louisiana, the United States Court of Appeals for
the Fifth Circuit certified the following question to this
court:
Whether La. R.S. 18:1462A proscribes on election
day, outside of the polling place itself but within a
radius of six hundred feet from the entrance thereto,
all solicitation of signatures for a recall petition that
is not on the ballot that is to be voted on at the
election for which the polling place is open, and in
the polling place or said six hundred feet radius all
wearing of clothing or buttons bearing visible words
or symbols supportive of such recall?
We granted certification, and now proceed to answer the
question.’
” We note that our opinion deals only with the question certified, and
(continued...)
Page 33a.
La. R.S. 18:1462(A) provides:
§ 1462. Acts prohibited on election day:
A. Except as otherwise specifically provided by law, it
shall be unlawful for any person, between the hours of 6:00
a.m. and 9:00 p.m. to perform or cause to be performed
any of the following acts within any polling place being used
in an election on election day or within any place wherein
absentee voting is being conducted, or wherein absentee
voting is being conducted, or within a radius of six hundred
feet of the entrance to any polling place being used in an
election on election day or any place wherein absentee
voting is being conducted:
(1) To solicit in any manner or by any means whatsoever
any other person to vote for or against any candidate or
proposition being voted on in such election.
(2) | To remain within any such polling place or place
wherein absentee voting is being conducted or within a
radius of six hundred feet of the entrance of any such
polling place, except when exercising the right to vote, after
having been directed. in writing, by an_ election
commissioner or law enforcement officer to leave the
premises or area of a polling place or after having been
directed, in writing, by a registrar or deputy registrar to
leave the place wherein absentee voting is being conducted.
(3) To hand out, place, or display campaign cards,
oone ne mye ns pa aaaaa aaa — r
%. . continued)
we do not pass on any issues of constitutionality under either the United
States Constitution or the Louisiana Constitution.
Page 34a.
eT
(4) : Sate Sm
Hie Diace. ot display political signs. pictures, of other deal edenetisien
{emphasis added].
We find the clear intent of this statute, when taken as a
whole, is to prohibit political activity within 600 feet of the
polls on election day in order to prevent disruption of the
polling place and the election process. Although we agree
that subsection (1) does not apply to the present case, we
believe that subsections (3) and (4) clearly proscribe the
conduct at issue. Subsection (3) prohibits the handing out,
placement or display of campaign literature “of any kind or
description whatsoever." We find the solicitation of
signatures for a recall petition not on the ballot at that
election, but which its backers uitimately hope to get on the
ballot, fits this broad definition of handing out or displaying
campaign literature. Likewise, we hold the wearing of
clothing or buttons supporting such a recall effort is a
display of political advertising prohibited by subsection (4).
Accordingly, we answer the certified question in the
affirmative.*
DECREE
For the reasons assigned, we answer the certified
question as follows:
La. R.S. 18:1462(A)(3) proscribes on election day,
outside of the polling place itself but within a radius
of six hundred feet from the entrance thereto, all
solicitation of signatures for a recall petition that is
not on the ballot that is to be voted on at the election
for which the polling place is open. La. R.S.
* We note that Attommey General of Louisiana, in opinion no. 92-
605(A), reached a similar conclusion, as did the court of appeal in an
unpublished opinion, Lacour _v. State of Louisiana, 90-C-1772
(La. App.4th Cir. 1990).
Page 35a.
18:1462(A)(4) proscribes in the polling place or said
six hundred feet radius all wearing of clothing or
buttons bearing visible words or symbols supportive
of such recall.
It is ordered that, pursuant to Supreme Court Rule XII, § 9,
the clerk of this court send this judgment under the seal of
this court to the United States Court of Appeals for the Fifth
Circuit and to the parties.
Dennis, J., concurs. Although the statutes does not prohibit
pure speech or political activity disassociated from the
election at hand unless it is combined with political
advertising or the display or distribution of campaign
literature, the Plaintiffs in the present case seek to carry out
such a combination of activities on election day.
Page 36a.
APPENDIX F.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
Theodor A. Schirmer, et al Civil Action
Plaintiff, Number 92-868-B
versus
Edwin W. Edwards, et al
Defendant
JUDGMENT
For the oral reasons assigned:
IT IS ORDERED AND ADJUDGED that judgment
shall be entered in favor of the Defendants and against the
Plaintiffs dismissing the Plaintiffs’ federal law claims with
prejudice and dismissing their state law claims without
prejudice.
Baton Rouge, Louisiana, October 21, 1992.
s/ Frank J. Polozola
United States District Court
Page 37a.
APPENDIX G.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
Theodor A. Schirmer, et al Civil Action
Plaintiff, Number 92-868-B
versus
Volume Five
7:00 - 8:10 p.m.
Edwin W. Edwards, et al October 20, 1992
Defendant. Honorable Frank J. Polozola
Transcript of the Court’s Findings of Fact and Conclusions
of Law in the above-entitled and number civil action.
(CA 92-868-B, October 20, 1992, 7:00 p.m.)
And as noted in the Burson case, and as I have been
saying throughout this case, the real question then is how
large a restricted zone is permissible or sufficiently tailored.
Plaintiffs in this case contend that even if the statute
rs valid, 600 feet is totally unreasonable.
Before I get into the reasonableness or
unreasonableness of the 600 feet, I think it is important for
the Court to go into the issue of whether or not the activities
of the plaintiff involved in this case are, in fact, covered by
the statute. I think the statute is clear. I think the statute
says that it is illegal to place or display political signs,
pictures or other forms of political advertising without any
limitation as to whether or not the matter is or is not on the
ballot.
The statute says that it is illegal and unlawful to hand
out, place or display campaign cards, pictures or other
Page 38a.
campaign literature of any kind or description whatsoever.
So I think the statute was definitely, on its face, clear in
meaning designed to deter any type of political activity of
any kind within 600 feet of the entrance to any polling place
used.
Now, several members of the legislature testified in
this case. Secretary of State McKeithen testified. The
Commissioner of Elections testified involving this particular
case.
It is clear to me that when you analyze this testimony
that there was definitely concern of the legislature. This
goes into the reasons why they might pass as compared to
determining what the statute means.
As I said before, I am aware of the limitations what
the Supreme Court has placed on District Courts and other
Courts in looking at legislative history when the clear words
of the statute have but one meaning. And I think the
meaning of these particular words are very clear.
But I still think it is necessary for the State to set
forth the reasons why it enacted such a statute and why it
prohibited all types of activity. Mr. Accardo, for example,
when he testified indicated that 300 feet was not enough
distance because many of the voting places in Louisiana
have parking lots that were outside the 300 foot limitation.
Mr. Accardo, who is currently chairman, and has been
chairman of this committee off and on for many years
during the time that he was in the legislature, indicated that
there were instances when political activity was going on,
that when people drove to the polls they were handed out
literature. There were people who were paid to be at these
particular entrances to the voting places to hand out cards.
There was food. People began to complain and, under his
interpretation of what the legislature did, he said no political
activity of any kind was to be conducted. In other words,
any political activity was covered whether on the ballots or
not. Mr. Accardo gave some various examples, examples
Page 39a.
,
f
being that he, himself, if he wanted to run for re-election,
although he wasn’t on the ballot, could be out there. Other
candidates could be out there. There was much concern in
various responses to the questions that I and the attorneys
raised as to whether or not people, for example, who were
for or against gambling, for or against abortion, for or
against other issues that might come up, cd all be present
within the zone, whether it is 300 feet, 600 feet or what
have you, to talk to voters, to cause voters to listen to their
particular messages. And the testimony that I heard seems
to indicate to me that this does nothing but intimidate,
confuse and possibly even deter voters from coming to vote
at the polls.
The fact that there are commissioners present at the
voting booths on election day does not necessarily resolve
the problem. Representative Accardo said that these people
involved as commissioners are very busy. They have little
time to work outside, and it is very difficult to let them
determine what is or what is not good or bad. The purpose
is to say that all political activity has been banned.
Originally Louisiana was at 300 feet. Later they
moved to 600 feet. Various reasons were given, all of
which pertained to allowing the voter to come and
encouraged to come to vote in a situation that is not
intimidating, that would not discourage voters to come to
vote, to be confronted with people who were there, were
being paid to hand out various political literature.
According to the evidence of both Mr. Lancaster and Mr.
Accardo, as well as other witnesses who testified, since the
600 feet limitation has been set, the large problems that
were involved earlier regarding poll workers and what you
have all but subsided at the various precincts.
The Secretary of State, McKeithen, who testified in
regard to some confusion over a ballot involving a white
candidate and a black candidate, and petitions being
involved in that matter indicated that that was a problem that
Page 40a.
he felt like would deter the voters from coming to vote even
though that matter was not necessarily on the ballot.
There were other problems involved that people
discussed, but in summary, the issue I believe is not for me
to determine whether the legislature was absolutely right or
absolutely wrong. I don’t think that is the test that the
Supreme Court sets forth in the Burson case. The question
is not whether it is perfectly tailored to deal with voter
intimidation and election fraud but whether or not the action
taken, 1) was taken by the State because the State found it
necessary to secure a compelling State interest; 2) that it did
not significantly impinge on constitutionally protected rights
of the plaintiffs in this particular case.
Considering all the testimony involved in this
particular case, reading the clear words of the statute, and
considering what each of the legislators who either were the
author of the bill or a member of or the chairman of the
committee testified to, the sole purpose of increasing the
zone from 300 to 600 was to keep the political influence
away from voters, to give voters plenty of time to have
privacy, to protect the sanctity of polling places, to keep the
poll watchers away from the various precincts, and by doing
so, to encourage voter participation and let voters know that
they could vote at the polling place without being
intimidated harassed or what have you.
So, the Court finds, as I noted earlier, that the statute
is, in fact, designed to control all political activity whether
or not the activity is on the ballot or not.
There is one case, it is not reported, the parties have
referred to it in the briefs. The Fourth Circuit, the
Louisiana Fourth Circuit Court of Appeal in Nathan LaCour
versus the State of Louisiana issued an unpublished opinion.
Whatever effect this has, I don’t know. I don’t know if this
can be relied on by this Court, but the Court does believe
that it is worth mentioning. In the opinion wherein the
Fourth Circuit, and this is the only case that I have been
Page 4la.
able to find or any counsel have been able to find regarding
this particular issue, but the Fourth Circuit in dissolving an
injunction that had been previously granted by a lower court
stated the clear intent of LSA-R.S. 18:1462 is to prohibit
any and all political activity within 600 feet of the polls on
election day. Especially pertinent to the instant controversy
is sub-section 2 of that statute which allows election officials
or law enforcement personnel to force persons to leave the
premises after issuing written notice. Additionally, Sections
3 and 4 prohibit the distribution of all campaign literature of
any kind or description whatsoever as well as the display of
other forms of political advertising. Although the recall
petitions involved here are not related to the current
election, the statute was obviously designed to prevent the
disruption of the polling place through any political activity
including that contemplated by the petitioners in this case.
Petitioners may distribute recall petitions at a distance
greater than 600 feet from polling places used in the election
of October 6th and November 10th of 1990. The temporary
restraining order issued herein is annulled, dissolved and
recalled,
Now, having concluded that the activity of the
plaintiffs involved in this case are covered by the statute,
that the state could create a zone, that the zone created
prohibits the activities of the plaintiffs involved in this case,
the question is whether or not the 600 foot limitation is
reasonable under the facts of this particular case.
The Supreme Court in the Burson case did not set
forth any specific guidelines but it is important to note one
thing that I think is particularly important. And
representative Accardo referred to this in his testimony.
Representative Accardo noted that many of the
polling places in Louisiana are more than 300 feet from
where the parking lots are located. And one of the things
that voters had complained to the legislators was the fact
that they were being harassed or intimidated or given
Page 42a.
SS
material by these poll workers and other people who wanted
to pass out various campaign literature. For that reason,
Representative Accardo noted that the distance was
increased from 300 to 600 feet to allow a voter to park his
car, walk out of his car, and walk to the polling place.
One of the things that the Supreme Court noted at
page 1856 of its opinion was that elections vary from year
to year and place to place. It is therefore difficult to make
specific findings about the effects of a voting regulation.
And moreover the remedy for a tainted election is an
imperfect one. Re-running an election would have a
negative impact on voter turnout. Thus, requiring proof that
a 100 foot boundary is perfectly tailored to deal with voter
intimidation and election fraud would necessitate that a
state’s political system sustain some level of damage before
the legislature could take corrective action. Legislators, we
think, should permitted to respond to potential deficiencies
in electoral process with foresight rather than reactively,
provided that the response is reasonable and does not
significantly impinge on constitutionally protected rights.
In this case involving these particular people, the
recall people, there has been evidence that on various
occasions whether at a side street in Orleans or Jefferson
Parish, whether at the Superdome, whether in North
Louisiana or South Louisiana, that there have been ceriain
hostilities between those that support and those that oppose
the activities of the recall committee.
As I said earlier, I don’t think that the State has to
wait for something to happen before taking action to prevent
it. It is the same thing that the Supreme Court said many
years ago in a case that they decided back in 1986 in Munro
ver ialist W r
In this particular case, the question is, is 600 feet a
reasonable exercise of the authority of the State insofar as a
compelling state interest or is it such that it truly impinges
Page 43a.
——
on the rights of the plaintiffs and others who might wish to
get involved in this particular case.
There are several exceptions set forth in 1462. The
question is, are there alternatives? You know, what other
alternatives does the State provide to those who want to do
whatever activities might be involved in the political
process? For example, 1462 does not apply to the placing
and displaying either by the owner, lessee or lawful
occupant thereof or with the consent of such owner, lessee
or occupant, of political signs or pictures on private
property which is not being used as a polling place. This
particular exception, for example, would allow those
homeowners who live within 600 feet of the polling place
and who own private property, or lease private property, or
who are lawful occupants of private property, to allow any
type of political sign they wish to have on their property
including allowing the recall people or any other group to be
on their property to campaign in such a manner that they
might wish within the applicable laws of the State of
Louisiana.
The legislature, for example, has said that people
who possess alcoholic beverages can’t be at a polling place.
There are various reasons for this because of disruption
caused by people in polling places. In looking at some of
the history that was provided--and it really wasn’t legislative
history so much as it was a history of the various acts
enacted--there were times when some of the statutes
provided that the bars could not even open until a certain
time, if at all, on election day to avoid people who were
intoxicated from voting or even having people drink and
then not know what they are doing at the polling place.
There are other particular statutes involved where the
legislature has limited various things. For example, in 1462
political material--there is a statute that says that the
legislature of Louisiana finds that the State has a compelling
interest in taking every necessary step to assure that all
Page 44a.
elections are held in a fair and ethical manner and finds that
an election cannot be held in a fair and ethical manner when
any candidate or other person is allowed to print or
distribute any material which falsely alleges that a candidate
is supported by or affiliated with another candidate, group
of candidates or other person or political faction to publish
anonymous statements that are scurrilous, false or
irresponsible adverse comment about a candidate or a
proposition. The legislature further finds that the people of
this State have a right to know and that among other things
that it is essential to the protection of the electoral process
that the people know who is responsible for such
publications in order to more properly evaluate the
statements contained in them and to informatively exercise
the right to vote.
There are some other statutes involved that I don’t
need to get involved with. For example, Section 1534
which is the old statute leading up to the--which is now
1462 and 1464--dealing with various things that were
prohibited and what the poll watchers and people who are
working the polls could or could not use during the course
of the election process.
In short, the matter involved in this case is whether
600 feet for a period of 6 a.m. to 9 p.m. at a certain polling
location is an unreasonable or significant impingement on
the constitutionally protected rights of the recall people and
plaintiffs in this particular case.
In trying to decide this, the Court again has to fall
back on what Burson said. Burson says we do not think that
minor geographic limitation prescribed by Section 2-7-111-B
constitutes such a significant impingement. Thus, we simply
do not view the question whether the 100 foot boundary line
could be somewhat tighter is a question of constitutional
dimension. Reducing the boundary to 25 feet as suggested
by the Tennessee Supreme Court is different only in degree.
and not a less restrictive alternative in kind.
Page 45a.
The Court further stated that at some measurable
distance from the polls, of course, governmental regulation
of vote solicitation could effectively become an
impermissible burden, akin to the statute struck down in
In reviewing challenges to specific provisions of the
State election laws, however, this Court has not employed
any litmus paper test that will separate valid from invalid
restrictions. Accordingly, it is sufficient to say that in
establishing a 100 foot boundary, Tennessee is on the
constitutional side on the line.
I don’t see how a 600 foot limitation affects the
rights of the people involved in this case. Obviously there
is a balancing test that the Court has to consider. The
balancing test is the right of a voter to vote in a manner that
he is not intimidated, confused, in a manner that fraud does
not occur, balancing that with the right of others who wish
to proceed at this particular boundary line--within this
boundary line.
Louisiana does have a 600 foot limitation.
Previously it was 300 feet. The Court has listened to the
testimony in this case and the Court believes that valid
reasons were given which to me suggest common sense on
the part of the legislature to prevent the things that were
being done that the legislature was currently aware of.
And the question is, given the conflict between the
right to vote in a manner that is free of intimidation, fraud,
confusion; in a manner that doesn’t discourage voter
participation but, in fact, encourages voter participation;
given that conflict versus the right of the people to petition,
I believe that it was a common sense approach to establish
a restricted zone around polling places to ensure and protect
the fundamental right of a citizen to vote in an election.
And as the Supreme Court stated in the Burson case, given
the conflict between these two rights, the right to vote, the
right to pass out political material, we hold that requiring
Page 46a.
solicitors to stand 100 feet or in my case 600 feet from the
entrances to polling places does not constitute an
unconstitutional compromise.
I think in this case the 600 foot does not significantly
impinge on the constitutionally protected rights. It is
reasonable. The Court believes that this area is necessary
to secure the State’s compelling interest. The argument has
been made that other states have various distances from 30
feet to 1,000 feet. The important thing is going back to
what the Supreme Court said in the Burson case. Elections
vary year to year and place to place. It is therefore difficult
to make specific findings about the effects of voter
regulations.
In this particular case there is not a significant
impingement on the rights of the plaintiffs. If they have as
much support as they testified they have, and with the
statute suggesting that if you are on private property, even
if the private property is within the 600 foot zone, you can
be on this private property, these individuals have that right
to go on to private property. They have the right to go
within 600 feet. While some evidence was introduced at the
trial to show that 600 feet was some distance from some of
the polling places that were introduced on the tape,
Representative Accardo said many, many other places in the
State of Louisiana have voter polling places that are
significantly further than 300 feet because of the parking
distances so far away from the polling place.
Considering all these activities and knowing that it is
not necessary nor required that the State produce proof that
the boundary selected in this case, 600 feet, is perfectly
tailored to deal with voter intimidation and election fraud,
then the Court believes it is constitutionally permissible
under the facts of this case.
One thing that I keep repeating, I think two or three
times in this case, and I think it bears worth repeating that
successful voter intimidation is successful precisely because
Page 47a.
——————————————
it is difficult to detect. To me to substitute my judgment of
whether 100 feet to 600 feet is too much or too little simply
would require me to engage in speculation when the more
important issue is whether or not this restriction on election
day, for example, for a total of 13 hours would significantly
impinge the constitutional collective rights of a group who
have 180 days to do whatever they wanted to do.
Yes, the Court did express concern in this case about
if the statute was truck down or if there were no limitations
at all, what effect it would have on voters if various groups
of people came to express their various concerns. I think
Representative Accardo referred to having people walk
through a gauntlet to reach the voting booth.
What is significant was the three cases that I read, I
think that may have been cited in the Supreme Court
opinion. This dealt with labor elections. And what was
significant to some of these were people who were not
involved in the elections, who were not even employees,
who could not even vote, were engaged in activities such
that the various courts struck down the election. What did
they do? Some of them were just talking to people who
were in line to vote outside of the poll wearing marks
Suggesting they should or should not vote, telling the people-
-just talking to people as they walked through the election
process. What was significant was in one of the cases and
I will get to it in one second or two that even said standing
in line was an extension of the voting polling booth such
that when they started talking to people who were in line, it
was such intimidation that the election should have been
voided.
The cases are NLRB versus Carroll Contracting and
Ready-Mix, 636 F. 2d 111, 1981. The Court held that the
board further argues that the electioneering was not
improper because it occurred outside the polling place. We
are not convinced. As stated by the board in the Milchem
case, the last few moments before voting should be the
Page 48a.
voters own, as free from interference as possible. We do
not find that this protection from interference is reserved
only for those employees who have gained access to the
action polling place to case their votes.
Once the polls open, the employees waiting outside
in line to vote became a part of the polling place and were
entitled to the safeguards against interference espoused in
Milchem.
In the Season-All Industries, Inc. versus NLRB case
similar language was used by the Court in that case. What
is significant in both this case and in Midwest Stock
Exchange versus National Labor Relations Board is the fact
that people who were not involved in the election but who
came to solicit voters, to talk to those who had to vote in
the elections, were found to have violated the various rules
involving union elections such that the elections were set
aside.
In each of these cases, the courts went so far as to
emphasize the right of the voter, even though it was an
election in connection with a union election, to be free from
intimidation, to be free from harassment, to have the last
minutes of voting in such a way that it doesn’t destroy their
right nor the atmosphere that they should have in voting.
For example, in the Season-All case at page 940 the
Court held that Carroll realizing that board policies
prohibited electioneering at or near the polls denied
enforcement of the board’s order. Our reading of Carroll
indicates that the Fifth Circuit does not restrict the per se
rule of Milchem to parties but holds that even a non-party
who disrupts the voting procedure or destroys the
atmosphere necessary to the exercise of a free choice in an
election, warrants the setting aside of the-election. We
agree that in establishing and maintaining the laboratory
conditions conducive to an election no conduct disruptive or
destructive of the exercise of a voter’s free choice can be
Page 49a.
tolerated regardless of whether the actions are those of a
union agent or mere employees.
The reason I cited these cases is I think one of the
counsel for plaintiffs referred to the fact that no voter should
be--needs to be, have this vacuum where they can’t be, can’t
be harassed or what have you by anybody or be solicited by
anybody. And I think these cases, though they are involving
union elections, strongly suggest that such is not the case
and the reason I cite these cases and the language in them is
because the Supreme Court in the Burson case at Page 1855
specifically referred to the fact that the National Labor
Relations Board also limits activities at or near polling
places in union representation elections.
The final issue or the final issues that the Court has
to determine is whether or not the material such as the T-
shirts, badges, signs or other literature are covered by the
Statute in this particular case.
The argument is that a mayor candidate wore a T-
shirt and he allowed to vote whereas people who wore recall
shirts either were not allowed to vote, were required to
either take off their T-shirt or to turn it around. And the
issue becomes whether or not a statute which is valid on its
face becomes invalid because of the manner in which it is
applied.
_ I think in this particular case the T-shirts and the
materials that I see in this particular case do come within the
clear meaning of the statute insofar as Sections 3 and 4 are
concerned. The statutes clearly say it is unlawful to hand
out, place or display campaign cards, pictures or other
campaign literature of any kind or description whatsoever or
/ to place or display political signs, pictures, or other forms
of political advertising.
The issue that I have to decide is not whether
Louisiana or the poll watchers or the commissioners are
doing their job properly. The issue is whether or not on the
face of the statute this statute is or is not constitutional and
Page 50a.
whether or not the shirts and the pins and the political signs
are or are not the type of literature and campaign material
that were clearly prohibited by Section 1462.
I find that it is. Now, is it up to this Court to say,
okay, State of Louisiana, you have to enforce?
I got involved in the jail case. I have been involved
in the jail case twenty years. There is no effort on the part
of anybody involved in this case to say now that this federal
court or this particular Judge has to now get involved with
the electoral process.
This is a matter that needs to be supervised by those
in charge of the election process in the State of Louisiana,
whether it is the Secretary of State, the Commissioner of
Elections, Clerks of Court, Commissioners who are duly
appointed, the Legislature, the Governor, the Attorney
General or whomever. It is not for me.
It seems to me the candidates also have a right to
request that these statutes be enforced fairly and what have
you.
So the question becomes what if a person such as
Mr. Schirmer who is given a ticket, or a summons I should
say, for refusing to leave, and he now challenges this statute
on the grounds that people who drive up into the parking lot
with signs saying vote for or against a certain candidate--
they haven’t been prosecuted. People who, such as the
Mayor candidate who wore his T-shirt, were allowed to
vote. I think as the Supreme Court said that these
arguments are as applied challenges that should be made by
an individual prosecuted for such conduct. And I think Mr.
Schirmer has the right, and I know the ability, to raise this
in his criminal trial and it is not necessary for me to engage
in this particular process. So to the extent that this
complaint requests the court to issue a declaratory judgment
allowing these particular plaintiffs or others to wear politica!
t-shirts of any kind while they vote, the request is denied.
Page Sla.
Whether or not it is going to be applied fairly is a
question for the commissioners and others who run these
elections.
The sole issue before the Court is whether or not this
particular statute is constitutional on its face. I find that it
is. It is clear that this statute as was the Tennessee statute
to use the words of the Supreme Court, it is neutral on its
face insofar as the type of activity it applies. It is not siding
with one side or the other insofar as the language of the
Statute is concerned.
In other words, it is not a facially content neutral
time place or manner of restriction. We are dealing only
with political activity in this particular case and I think the
Statute on its face is constitutional.
So, in summary, the Court finds that the activities
involved by the Recall group and the other plaintiffs are
political in nature and, therefore, come within section 1462.
The Court states that the State of Louisiana can
constitutionally create a zone, a campaign free zone around
the polling places of this State.
The Court finds that section 1462 covers both those
things that are on the ballot as well as those that are not on
the ballot.
The Court further finds that the 600 foot limitation
is a reasonable limitation that does not impinge on the rights
of the plaintiffs in this particular case because of the very
limited time involved together with the other exceptions that
are involved and the fact also that outside of 600 feet these
parties can engage in any conduct they wish insofar as
solicitation of votes.
The Court finds that the materials such as those
presented to the Court, the t-shirts, the badges, the signs are
covered by section 1462.
The Court finds that the statute is valid on its face.
Page 52a.
The Court declines to rule on whether or not as
applied to Mr. Schirmer the statute is or is not valid. That
is for him to raise in his state court proceedings.
The final thing I want to say is this. There has been
some argument that, you know, you can call the police.
Well, one of the statutes that I didn’t quote says policemen
really aren’t supposed to be in the zone unless it is
absolutely necessary because of the influence that they have
had or apparently according to Mr. Accardo and others on
elections.
But the critical thing that I am concerned about is
you can go and call the police, but how many people are
going to take the time to stand in line and be harassed or
intimidated or discouraged from voting. How is the Court
or the Legislature or the plaintiffs or the defendants in this
case going to discover undetected, or less than blatant acts
which may nevertheless drive voters away before remedial
action can be taken?
I think it is this type of concern that the Supreme
Court expressed, the type of concern that successful voter
intimidation is successful because it is difficult to detect, the
concern that voters ought to be free to vote without being
harassed or intimidated or discouraged, to eliminate voter
fraud in elections, to ensure thai the elections are conducted
in a free and lawful manner, and as the Court said, without
having the federal court engage in a litmus paper test that
will separate valid from invalid restrictions.
Considering all the evidence in the case, the Court
finds that what the Legislature did in this case was common
sense, but more important was constitutional.
And these are the Court’s findings of fact and
conclusions of law. The Court reserves the right at a later
date to supplement its oral reasons with written reasons.
The Court will enter a judgment dismissing plaintiffs’
suit with prejudice. The Court will try to enter the
Page 53a.
judgment tomorrow sometime so that the process can
continue.
I know insofar as appeals are concerned one of the
things that we need to do is get transcripts. I would hope
that everybody understands that this is not a pauper case,
that reporters need to be compensated. Particularly in
political cases it gets to be a very difficult problem. So I
would hope that anybody who wants transcripts or
designation of transcripts that you all would cooperate with
the court reporter because it is important that we get this out
this week if we can because there is a very big case starting
next week, six to eight week case. And it gets difficult to
do transcripts when you are in a courtroom. So I would
hope that everybody cooperates with the court reporters and
my clerk in getting the record together to go up on appeal.
Everybody knows how to take an appeal, and we will
just go from that.
I do want to say one thing and I say this with
sincerity. At the beginning of the case, I raised a concern
about Mr. Schirmer representing everybody and then also
being a plaintiff. This was not any attempt on my part to
suggest that what Mr. Schirmer was doing -- he was trying
to do something intentionally to cause a problem. I know
his zeal to represent a client of this nature and what have
you.
On the other hand, I have the obligation to ensure
that the Rules of Professional Conduct are complied with
and I think the manner that we worked this out was
satisfactory to all parties. I don’t think that Mr. Schirmer
or his clients were affected by the role that he had to play.
I think that he asked all the questions he wants to and,
obviously, he had capable counsel. I don’t apologize for
raising the issue, but I do want that to be reflected that I just
think we have these rules to follows and until somebody else
changes them, I think we need to do it and it is in our local
rules. So I think the compromise that was made or the
Page 54a.
—_—__
procedure that was followed, I should say, was an
appropriate procedure. You might want to think about this
the next time before you jump in and get involved. You
know, maybe let somebody else play the role of getting the
ticket or play the role of the plaintiff or play the role of
attorney because I think it could cause some problems with
the Bar Association.
Mr. Schirmer: I am preparing a letter now, your
Honor, to have a clarification for the Bar, specifically on
that issue.
The Court: Okay. Well, I think it worked out okay
here, and I am not doing anything with the Bar Association.
But I just thought we had to do it.
The final thing I want to say is I do appreciate the
cooperation that counsel from both sides gave to each other
and to me. We put this case on a very fast track, and if we
learned anything in this case, and I really think we did, and
I am reinforced in my total belief not that a pre-trial order
is required in every case. I don’t care how simple we think
cases are, I think we need a pre-trial order. And I just think
it helps -- there are two cases in a row that didn’t work.
You know, I am now convinced we need a pre-trial order.
But I do want to thank you all for getting the
witnesses up. I know state officials have a lot of
obligations, but I think to get the people here the way we
did and to take people out of order, I think that speaks well
for the lawyers in the case. And I think it is refreshing to
see that. I get aggravated, as you can tell, when things get
out of hand in a courtroom, but on the other hand if I don’t
do it, who is going to do it?
I just like to run a very strict courtroom with a lot of
decorum and I don’ think I am ever going to change in that
regard.
Okay. We stand at recess.
(Recessed at 8:10 p.m.)
Page 55a.
APPENDIX H.
NINETEENTH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
CRIMINAL SECTION I
STATE OF LOUISIANA
VS. NUMBER: 5-93-133
THEODORE A. SCHIRMER
TRANSCRIPT OF RULING ON MOTION TO QUASH
MONDAY, JULY 19, 1993
THE HONORABLE RALPH E. TYSON,
JUDGE PRESIDING
APPEARANCES:
CARSON MARCANTEL : FOR THE STATE
MARK UPTON : FOR THE ACCUSED
REPORTED AND TRANSCRIBED BY
LANELL DIDIER |
OFFICIAL COURT REPORTER
MONDAY, JULY 19, 1993
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THE COURT: I think, both sides can agree that the statute
in a real sense brings two of our most basic constitutional
rights almost head to head. The right to free speech,
freedom of expression is butting up against the right to vote.
Both of which are basic and fundamental and essential rights
in a democracy. The issue is whether the state in deciding
Page 56a.
7
that the right of free speech, free expression, or in this case,
political expression, stops 600 feet from the voting booth,
whether the state is--whether there is a rational basis for that
determination and whether the state’s election to put the bar
at that point is reasonable and is a reasonable restriction of
the corresponding--a reasonable enforcement of the right of
citizens to vote. I have been reading Burson versus
Freeman which is the United States Supreme Court case that
apparently is the latest expression on that point, and I’ve
been reading it over the weekend and different points of the
testimony today. In that case Tennessee’s 100-foot
boundary was challenged as being an unconstitutional
infringement upon the right to vote. Tennessee has--and
from what I understand from the opinion and from other
resources almost every state in the union has some
prohibition on campaign activities within a certain distance
from the polls. In Tennessee it was 100 feet. And pretty
much the same activities as are covered in 1462 were
prohibited in Tennessee in that 100-foot space. The
Supreme Court in the Burson base found that the 100-foot
boundary was not unreasonable. Specifically they stated that
in establishing a 100-foot boundary Tennessee is on the
constitutional side of the line. Whether that means that 99
feet is too close of 101 feet is too far, I don’t know. It also
appears from that opinion that the majority of the states
enforce a 100-foot boundary, I think, Louisiana is--well, I
think, Hawaii is number 1 with a 1000-foot boundary, and
Louisiana is number 2 with a 600-foot boundary, and the
majority of the states, I think, fall around the 100 to 250-
foot boundary. In reaching their decision in the Burson base
the Supreme Court didn’t really give you a whole lot to go
on other than to say there is nothing wrong with a hundred
feet. It did state legislatures, we think, should be permitted
to respond to potential deficiencies in the electoral process
with foresight rather than reactively provided that the
response is reasonable and does not significantly impinge
Page 57a.
upon the constitution of protecting rights. And they go on
to say that at some measurable distance from the polls
governmental regulation of vote solicitation could effectively
become an impermissible burden akin to a statute which was
struck down in Miller versus Alabama which I also read
dealt with a statute that prohibited publishing newspaper
editorials pro or con on election day. The Court quickly
struck that down. More recently the Fifth Circuit in
Schirmer versus Edwin Edwards which, I think, is the
federal counterpart of this particular matter noted that the
Louisiana statute is six times the distance that was covered
in the Supreme Court decision in Burson, and the area
covered by the 600-foot limitation is approximately 36 times
as large as the area that was covered in the Burson case, and
as I indicated before that we’re second only to Hawaii with
a restricted radius of 600 feet. The testimony that has been
presented of course indicates that the officials charged with
enforcing these limits apparently have to wrestle with them
every election. But I really didn’t hear anything that they
have a problem with--that they had a problem with at 100
feet which was the limit in November that would not have
also been a problem at 600 feet. That was the reason for
my question to Mr. Fowler whether the 100-foot limit which
the state was forced to use in November presented an
problems--or any different problems than they had in prior
elections when the limit was 600 feet. And it was my
appreciation of his testimony that there was no unique
problem, nothing that they wouldn’t have had the distance
been six times greater. The fact that the limit was increased
to 600 feet following--was that the °72 election with
Lambert? That may be the reason that it was increased to
that distance, but the Court just doesn’t see a rational basis
for that greater distance. In your Motion to Quash you
allege that the statute is unconstitutional because of
overbreadth, that it goes farther than necessary to achieve
the result that is desired. And insofar as that refers to the
Page 58a.
fact that political activity is prohibited within 600 feet of a
polling place, I agree and on that basis alone and no other.
The other bases that you allege I do not find to be
persuasive, but I do feel that the statute as written is overly
broad and that the objectives that it seeks to achieve can just
as easily and just as conveniently be achieved without that
great an intrusion upon the right of speech and expression.
So to that extent, to the extent that the statute prohibits such
activities within 600 feet of a polling place I do find it to be
unconstitutional. The Motion to Quash will be granted.
ae
Page 59a.
SSeS e_
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.