Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Supreme Court of United States held that a Minnesota law prohibiting voters from wearing political badges, buttons, or anything bearing a political insignia inside a polling place on Election Day was unconstitutional. The challenge was brought by the Minnesota Voters Alliance on the grounds that the law violated their First Amendment rights. The Court determined that polling places were non-public forums and hence the government was within its authority to impose some content-based restrictions on speech. Certain restrictions placed by Minnesota were in fact necessary, according to the Court, to ensure that partisan discord does not interfere with the voting process, however, it found that the provision at issue could not stand the scrutiny of “reasonableness.” Since the law failed to define “political,” the Court ruled the vague use of the term in the Minnesota law, combined with “haphazard interpretations provided by the State” could lead to an expansive reading, encompassing anything “of or relating to” government, politics, or the state, to the extent that even a “Vote!” button could be prohibited. The Court concluded that the statute violated the Free Speech Clause of the First Amendment.
The Petitioner in the case was the Minnesota Voters Alliance (MVA), a non-profit organization that “seeks better government through election reforms.” Its executive director Andrew Cilek, Susan Jeffers, former Ramsey County election judge and other likeminded groups, collectively known as Election Integrity Watch (EIW) challenged a Minnesota law, under which the voters were not allowed to wear a political badge, political button, or anything bearing a political insignia inside a polling place on Election Day claiming it violated their First Amendments rights to freedom of speech.
Minnesota Statute § 211B.11(1) contained three prohibitions, only one of which, the Political Apparel ban, was challenged in the present case. The Political Apparel ban states that a
“political badge, political button, or other political insignia may not be worn at or about the polling place.” [p. 3] Under this statute, Minnesota election judges [temporary government employees working the polls on Election Day] had the authority to decide whether a particular item fell within the ban. If a voter showed up wearing a prohibited item, the election judge had to ask the individual to conceal or remove it. If the individual refused, then the election judge allowed him to vote, but made it clear that the incident would be recorded and referred to appropriate authorities. Violators were subject to an administrative process before the Minnesota Office of Administrative Hearings, which, upon finding a violation, issued a reprimand or imposed a civil penalty.
This law was first challenged five days before the November 2010 election, by “Election Integrity Watch” in Federal District Court. However, the Court denied their request for a temporary restraining order and preliminary injunction and allowed the apparel ban to remain in effect. In response to the lawsuit, an “Election Day Policy” was distributed to election judges providing guidance on the enforcement of the political apparel ban.
The policy banned the following:
On the election day, voters associated with EIW were asked to cover up a Tea Party shirt and a “Please I.D. Me” button, however they refused and therefore, the election judge recorded their names. Back in court, they argued that the ban was unconstitutional. The District Court granted the State’s motions to dismiss, and the Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. Then they applied for review of the decision, arguing that the statute was unconstitutional on its face, and were granted certiorari by the Court.
Chief Justice of US Supreme Court Roberts delivered the opinion of the Court. The Court took a ‘forum based’ approach to assess the restrictions placed by the government. This was because the Minnesota’s ban on wearing of political badges applied only in a specific location i.e. the interior of a polling place. Here, it is pertinent to note that the Courts recognize three types of government controlled spaces: traditional public forums, designated public forums, and non-public forums. As per the Court, a polling place falls under the ambit of a non-public forum, a space that is not by tradition or designation a forum for public communication and where the government may impose some content-based restrictions on speech, including restrictions that exclude political advocates and forms of political advocacy as held in Greer v. Spock [424 U. S. 828 (1976)] and Lehman v. Shaker Heights [418 U. S. 298 (1974)]. Therefore, the main question before the Court was whether Minnesota’s ban on political apparel was “reasonable in light of the purpose served by the forum.
In deciding so, the Court firstly considered whether Minnesota pursued a permissible objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place. The Court started with reference to Burson v. Freeman [504 U. S. 191 (1992)], where it upheld a Tennessee law imposing a 100-foot campaign free zone around polling place entrances. Under the Tennessee law, much like Minnesota’s buffer-zone provision, no person could solicit votes for or against a candidate, party or distribute campaign materials within the restricted zone. In that case, the Judges found that such a law was necessary to eliminate election fraud, voter intimidation, confusion, and general disorder. Further, a campaign free zone outside the polls was imperative to secure the advantages of the secret ballot and protect the right to vote. The law withstood even the strict scrutiny applicable to speech restrictions in traditional public forums. [p. 10]
However, the relevance of this case was disputed by the petitioners who contended that the Burson case considered only “active campaigning” by campaign workers and others outside the polling place, trying to engage voters approaching the polls, however the Minnesota’s law, by contrast, prohibited “passive, silent” self-expression by voters themselves when voting [p. 11]. Furthermore, they argued that the Judges had focused on the extent to which the restricted zone combated “voter intimidation and election fraud” and had little to do with a prohibition on certain types of voter apparel. To which the Justices stated that even though campaign apparel came up neither in the Burson briefing and argument, nor the Judges expressly addressed such applications of the law, still Tennessee’s law had swept broadly to ban even the plain “display” of a campaign related message, and was upheld by the Court.
The Court did not find any basis for rejecting “Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as ‘an island of calm’ in which voters can peacefully contemplate their choices.” The Court held that it was a time for choosing not campaigning and therefore, the State could reasonably manage the interior of the polling place to reflect that distinction [p 11]. Additionally, the Court differentiated the present case from the past cases such as Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., [482 US 569 (1987)] (allowing wearing of a T-shirt or button that contains a political message in an airport) and Tinker v. Des Moines Independent Community School Dist [393 US 503 (1969)] (allowing students wearing black armbands to protest the Vietnam War) on the basis of non-disruptive nature of expressive apparel in more mundane settings.
However, in the present case, the Court found restrictions on political apparel essential “to ensure that partisan discord does not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most. That interest may be thwarted by displays that do not raise significant concerns in other situations.” Thus, looking at the special purpose of the polling place, Minnesota was allowed to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand. [p. 12]
While the Minnesota law stood the scrutiny of a ‘forum based’ approach, it failed to pass the test of reasonableness. The Court ruled that “the unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test.” The Court reasoned that the statute does not define the term “political”, and the word being an expansive one can encompass anything “of or relating to government, a government, or the conduct of governmental affairs” or anything “of, relating to, or dealing with the structure or affairs of government, politics, or the state”. For instance, under a literal reading of these definitions, a button or T-shirt merely imploring others to “Vote!” could qualify. [p.13]
To which the State argued that the apparel ban should not be read so broadly, there was no prohibition on all ‘political’ messages or speech, instead the ban proscribed “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in the polling place.” While the first three examples in the 2010 Election Day Policy were clear enough: items displaying the name of a political party, items displaying the name of a candidate and items demonstrating “support of, or opposition to, a ballot question”, there were other broad categories in the policy which were problematic.
The Court objected to the presence of the category banning “issue oriented material designed to influence or impact voting” and asked what qualified as an “issue” here. [p. 14] The State indicated that it would mean any subject on which a political candidate or party has taken a stance, or “issues that have been raised” in a campaign “that are relevant to the election”. Hearing this explanation, the Court questioned the reason behind the banning of “Please I. D. Me” buttons when the ‘voter identification requirement’ was not on the 2010 ballot and by wearing them, a Minnesotan would not have made explicit “electoral choice” in that respect. To which, the State argued that the Republican candidates for Governor and Secretary of State had staked out positions on whether photo identification should be required or not.
The Court was skeptical of this argument and ruled that “a rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable.” Additionally, the Court discussed the hypothetical cases of “Support Our Troops”, “Me Too” shirts which would be banned if a party candidate had expressed views on military funding/aid for veterans or taken a position regarding increasing awareness of sexual harassment and assault. [p. 15]
Another broad category in the election policy questioned by the Court was “any item promoting a group with recognizable political views.” The State construed the category as limited to groups with “views” about “the issues confronting voters in a given election.” The State did not, however, confine that category to groups that have endorsed a candidate or taken a position on a ballot question. Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all had stated positions on matters of public concern. If the views of those groups aligned or conflicted with the position of a candidate or party on the ballot, it would mean that their insignia could be banned. Similarly, in the 2012 election, Presidential candidates had issued public statements regarding the policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. This could mean a Scout leader on his way to a troop meeting could be stopped to vote and asked to cover up his uniform. To which the State contended that the ban covered only apparel promoting groups whose political positions were sufficiently “well-known” but the Court held that this would only increase the potential for erratic application. [p. 17]
The Court also discussed other instances such as shirts declaring “All Lives Matter” or bearing the name of National Rifle Association or displaying a rainbow flag [indicative of gay rights] or simply displaying the text of the Second Amendment, all could be perceived as political by the Election judges, fall in one category or another of the policy and therefore, be prohibited under the law. While the regulations don’t require perfect clarity and precise guidance (Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989)), an indeterminate prohibition carries with it “the opportunity for abuse, especially where it has received a virtually open-ended interpretation” (Jews for Jesus, 482 U. S., at 576 see also Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981)).[p.21]
The Court noted that although the vast majority of election judges strive to enforce the statute in an even handed manner and some degree of discretion in this setting is necessary, but that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” The Court specifically notes that “if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it.” [p. 18] Additionally, it stated if “a State wished to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach.” [p. 18]
Dissenting Opinion: Justice Sotomayor filed the dissenting opinion in which she agreed that the states might reasonably take steps to ensure that partisan discord does not follow the voter up to the voting booth, including prohibitions on certain apparel in polling places. However, she disagreed with the Court’s decision to declare Minnesota’s political apparel ban unconstitutional on the ground that it was incapable of reasoned application, especially when the Court had not first afforded the Minnesota state courts, a reasonable opportunity to pass upon and construe the statute [Babbitt v. Farm Workers, 442 U. S. 289, 308 (1979)]. Since the main issue was the definition of word ‘political’, it was fairly possible that the state court could ascertain a construction of this term that would contain the statute within constitutional bounds.
She reasoned that in the context of the First Amendment over-breadth doctrine, the mere fact that petitioners can conceive some impermissible applications of the statute is not sufficient to render it unconstitutional [United States v. Williams, 553 U. S. 285, 303 (2008)], especially when the state court is capable of clarifying the boundaries of state law in a manner that would permit the Court to engage in a comprehensive constitutional analysis [Virginia v. American Booksellers Assn., Inc., 484 U. S. 383 (1988)]. Therefore, she certified the case to the Minnesota Supreme Court for a definitive interpretation of the political apparel ban under Minnesota statute, which likely would obviate the hypothetical line-drawing problems that according to her, formed the basis of the Court’s decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of United States expanded the freedom by declaring the Minnesota law as unconstitutional. Since the law had failed to define “political”, this ambiguity could have been used by the election judges in an unreasonable and arbitrary manner.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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