Supreme Court decides Political Apparel Case

The Supreme Court decided Minn. Voters v. Manskey which deals with a political apparel ban.

Here is an excerpt from the Syllabus:

Minnesota law prohibits individuals, including voters, from wearing a“political badge, political button, or other political insignia” inside a polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017).This “political apparel ban” covers articles of clothing and accessories with political insignia upon them. State election judges have the authority to decide whether a particular item falls within the ban. Violators are subject to a civil penalty or prosecution for a petty misdemeanor.

. . .

Held: Minnesota’s political apparel ban violates the Free Speech Clause of the First Amendment.

(a) Because the political apparel ban applies only in a specific location—the interior of a polling place—it implicates the Court’s “ ‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.” . . .  A polling place in Minnesota qualifies as a nonpublic forum under the Court’s precedents. As such it may be subject to content-based restrictions on speech, . . . , so long as the restrictions are “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” . . .  Because the text of the statute makes no distinction based on the speaker’s political persuasion, the question is whether the apparel ban is “reasonable in light of the purpose served by the forum”: voting. . . .

(b)  Minnesota’s prohibition on political apparel serves a permissible objective. In Burson v. Freeman, . . . the Court upheld a Tennessee law imposing a 100-foot zone around polling place entrances in which no person could solicit votes, distribute campaign materials, or “display . . . campaign posters, signs or other campaign materials.” . . .. In finding that the law withstood even strict scrutiny, the Burson plurality—whose analysis was endorsed by Justice Scalia’s opinion concurring in the judgment—emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination that a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote.
MVA argues that Burson considered only active campaigning outside the polling place by campaign workers and others trying to engage voters approaching the polls, while Minnesota’s ban prohibits passive self-expression by voters themselves when voting. But although the plurality and Justice Scalia in Burson did not expressly address the application of the Tennessee law to apparel—or consider the interior of the polling place as opposed to its environs—the Tennessee law swept broadly to ban even the plain “display” of a campaign-related message, and the Burson Court upheld the law in full.The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the polling place, id., at 210, suggests an interest more significant, not less,within that place.

No basis exists for rejecting Minnesota’s determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43.Casting a vote is a weighty civic act, and the State may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. And while the Court has noted the “nondisruptive” nature of expressive apparel in more mundane settings, . . .  those observations do not speak to the unique context of a polling place on Election Day.

(c) But the line the State draws must be reasonable. The State therefore must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. 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 this test.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparelban should be interpreted more narrowly to proscribe “only wordsand symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the]polling place.” . . .  At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.
The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such 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.

The next broad category in the Election Day Policy—any item “promoting a group with recognizable political views”—makes matters worse. The State does not confine that category to groups that have endorsed a candidate or taken a position on a ballot question.As a result, any number of associations, educational institutions,businesses, and religious organizations could have an opinion on an“issue confronting voters.” The State represents that the ban is limited to apparel promoting groups with “well-known” political positions. But that requirement only increases the potential for erraticapplication, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it.
It is “self-evident” that an indeterminate prohibition carries with it“[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576. The discretion election judges exercise in enforcing the ban must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And 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. Thus, if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by Minnesota here.

Reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, GINSBURG, ALITO, KAGAN, and GORSUCH, JJ., joined. SOTOMAYOR,
J., filed a dissenting opinion, in which BREYER, J., joined

Judicial Campaign Seminars

Canon 5F(7) provides:

. . . . Persons who seek to have their name placed on the ballot as candidates for such judicial offices and the judicial candidates’ election committee chairpersons, or the chairperson’s designee, shall no later than 20 days after the qualifying date for candidates in the year in which they seek to run complete a two-hour course on campaign practices, finance, and ethics sponsored and approved by the Committee. Within ten days of completing the course, candidates shall certify to Committee that they have completed the course and understand fully the requirements of Mississippi law and the Code of Judicial Conduct concerning campaign practices for judicial office. Candidates without opposition are exempt from attending the course.

The Special Committee on Judicial Election Campaign Intervention has set the Seminar for two dates:

Friday, May 18th at 2:00 p.m.

Friday, May 25th at 2:00 p.m.

The seminar will be held in the Supreme Court courtroom in the Gartin Justice Building.

 

Judicial Candidate Qualifying

A candidate must file a “Statement of Intent” to be a candidate for judicial office.  The deadline is 5:00 PM on the first Friday after the first Monday in May (May 11, 2018) prior to the general election.  Miss. Code Ann. §23-15-977.

A candidate must also file an “Affidavit of Judicial Candidate.”  In this affidavit, the candidate must agree abide by all laws for election for judicial office.  Miss. Code Ann. §23-15-977.1.

These documents and the required fee are filed with the State Board of Election Commissioners, at the Secretary of State’s office.

Want to be a Law Professor?

Hiring Announcement: University of Mississippi School of Law

THE UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW is seeking an Instructor of Law to Serve as Associate Director for the LL.M. in Air and Space Law program. Applicants must have robust knowledge of air and/or space law; a J.D. degree from an ABA accredited law school; an LL.M. in Air and Space Law (or equivalent degree); and must be licensed to practice law.  Interested applicants can apply here: https://jobs.olemiss.edu/postings/13810.

Any questions should go to Ben Cooper at bcooper@olemiss.edu.