Minnesota Election Law Survives Free Speech, Equal Protection Challenge

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By Kimberly Robinson

A Minnesota election law prohibiting voters and others from wearing political buttons or other political insignia inside a polling place is not facially unconstitutional, the U.S. Court of Appeals for the Eighth Circuit held March 6 ( Minnesota Majority v. Mansky, 8th Cir., No. 11-2125, 3/6/13 ).

However, Judge Duane Benton, writing for the court, remanded the plaintiffs' as-applied challenge to the statute after finding that the district court applied the incorrect standard in dismissing that claim.

‘Please I.D. Me.'

The plaintiffs include Election Integrity Watch and its member groups Minnesota Majority, Minnesota Voters Alliance, and the North Star Tea Party Patriots.

Prior to the 2010 election, EIW and its member groups produced various insignia, including, for example, buttons with the phrase “Please I.D. Me.”

During the election, at least three EIW members were asked to remove the insignias based on Minnesota Statute § 211B.11. The first sentence of that statute prohibits displaying campaign material within 100 feet of a polling place, and the third sentence prohibits political insignia from being worn within the polling place.

Subsequently EIW sued the Minnesota Secretary of State, claiming that the first and third sentences of the law violated the Constitution's guarantee of free speech—both facially and as applied against EIW—and equal protection.

The district court dismissed the plaintiffs' complaint, and the plaintiffs appealed.

Facially Valid

The Eighth Circuit first rejected the plaintiffs' First Amendment facial challenge.

It explained that a law is facially unconstitutional when there is “ ‘no set of circumstances' ” under which the law could be valid.

Moreover, the court said that “[t]he Supreme Court has ‘adopted a forum analysis,' ” when analyzing free speech challenges. Laws regulating speech in public forums are subject to a more exacting test than those regulating speech in nonpublic forums.

The court found that Burson v. Freeman, 504 U.S. 191 (1992), foreclosed the plaintiffs' facial challenge to the law's first sentence—prohibiting campaign materials within 100 feet of a polling place.

There, the U.S. Supreme Court determined that a substantially similar Tennessee statute—also prohibiting campaign materials within 100 feet of a polling place—was a content-based regulation of speech in a public forum because it prohibited speech not only in the polling place but also on sidewalks and streets. It was, therefore, subject to strict scrutiny, which requires that the law be “necessary and narrowly tailored to achieve a compelling state interest.”

Despite this demanding test, “[t]he Supreme Court ruled that this was the rare case where a law survived strict scrutiny.”

Not only did Burson defeat the plaintiffs' objection to the first sentence, it also doomed the plaintiffs' free speech facial attack on the law's third sentence—prohibiting political insignia within a polling place.

Because the law was a viewpoint-neutral regulation of speech in a nonpublic forum—it only regulated speech within the polling place—it was subject to a less exacting test than the law at issue in Burson.

Under the applicable test, the law is upheld so long as it is “ ‘reasonable in light of the purpose which the forum at issue serves.' ”

The court said that because the Burson court found that a statute prohibiting speech outside of a polling place satisfied strict scrutiny, the statute here, which only prohibited speech inside the polling place, necessarily survived the less exacting standard.

The court also rejected the plaintiffs' argument that the third sentence was facially unconstitutional because it was overbroad.

The court explained that “[a] First Amendment case is ‘a second type of facial challenge': a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.' ”

The plaintiffs argued that the law was overbroad because it prohibited insignia that did “not attempt to persuade or influence voters to vote for or against any particular political party, candidate, or question on the ballot.”

Not only have other courts applied Burson under these circumstance, but the court also said that the plaintiffs failed to show that the law's application to insignia unrelated to an issue on the ballot was “substantial” in relation to its application to insignia related to an issue on the ballot.

The court therefore affirmed the district court's dismissal of the plaintiffs' First Amendment facial challenge.

However, the court remanded the plaintiffs' as-applied First Amendment challenge, finding that the court applied the wrong standard. In particular, because the district court considered matters outside of the pleadings, it should have converted the defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) to a motion for summary judgment under Rule 56.

No Deliberate Indifference

Finally, the court rejected the plaintiffs' equal protection challenge.

The court explained that the Equal Protection Clause of the 14th Amendment prohibits states from treating similarly situated people differently through, for example, selective enforcement.

The court emphasized, however, that the plaintiffs must show that the state itself caused this dissimilar treatment.

Where, as here, the statute does not “ ‘affirmatively sanction selective enforcement,' ” the plaintiffs must show that the state was deliberately indifferent to that risk.

The court said that the plaintiffs' allegations—that the state's “ ‘standardless discretion' resulted in selective enforcement”—was insufficient to show deliberate indifference.

Accordingly, the court also affirmed the district court's dismissal of the plaintiffs' equal protection challenge.

Judge Raymond W. Gruender joined the opinion.

Burson Applies Only to Campaign Materials?

Judge Bobby E. Shepherd, however, wrote a separate opinion, concurring in part and dissenting in part.

In particular, he argued that Burson could not be applied to laws prohibiting materials unrelated to any issue on the ballot.

He focused on the fact that the law at issue in Burson prohibited “campaign materials,” and said that there was no showing that a broad prohibition on all political materials would serve the state's interest in maintaining order in the election process.

Erick G. Kaardal, Mohrman & Kaardal PA, Minneapolis, argued for the plaintiffs. Daniel Patrick Rogan, Hennepin County Attorney's Office, Minneapolis, argued for the state.

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