UPDATE, June 14, 11:00 a.m.: The U.S. Supreme Court ruled 7 to 2 to strike the law.
After years and years of trying, the arch-conservative Minnesota Voters Alliance (MVA) is finally going to get its wish: to have the Supreme Court weigh in and potentially help it suppress the vote in Minnesota.
Earlier this week, the U.S. Supreme Court agreed to hear Minnesota Voters Alliance v. Mansky. As part of its other laws protecting voters, Minnesota takes pains to ensure people are not harassed at polling places by banning people from wearing political clothing or accessories, or displaying campaign signs, within 100 feet of a polling place. Minnesota election officials read this broadly and prohibit not only material that favors a certain candidate, but also material that conveys a broader political message. MVA has been fighting the state of Minnesota over this since 2010.
Back then, the head of MVA, Andrew Cilek, teed up this lawsuit by wearing to a polling place a “Don’t Tread on Me” t-shirt (which has long been recognized as a symbol of the Tea Party) and an “Election Integrity Watch” button that said “Please ID Me,” knowing full well he would be asked to remove them. The latter is something Cilek and company have been especially chagrined about: Minnesota voters soundly rejected a voter ID constitutional amendment in 2012, a measure groups like MVA had been pushing for several years.
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The initial version of this MVA lawsuit was an as-applied challenge, meaning the organization was challenging the application of Minnesota’s law to Cilek’s t-shirt and badge specifically. The group sued the election managers of Minnesota’s two largest (and, not coincidentally, most diverse and most Democratic-leaning) counties and the Minnesota secretary of state. While Cilek argued that neither his badge nor his T-shirt were political or partisan in nature, lower courts shut that down, holding that everyone knew the “Don’t Tread on Me” T-shirt was affiliated with the Tea Party and the “Please ID Me” badge was designed “to falsely intimate to voters in line at the polls that photo identification is required in order to vote in Minnesota.” With that, the federal district court concluded back in 2011, MVA’s lawsuit failed because Minnesota had properly applied the law in telling Cilek he could not wear such material to the polls.
In the latest development in this now-seven-year-old lawsuit, MVA brought what is known as an overbreadth challenge. This requires MVA to prove that Minnesota’s law is by definition invalid because it will be read in such an expansive way as to prohibit more speech than it says it will. Put another way, the group is saying that while Minnesota is attempting to restrict things like the “Please ID Me” badge, which courts have already said the state can do, Minnesota might also restrict far more speech. In its petition to the Supreme Court requesting the Court hear this case, it argued that Minnesota could ban red or blue t-shirts because those are associated with the two major political parties. However, Minnesota’s secretary of state and the election managers, in their filing, note that courts can’t generally invalidate a statute as overbroad simply because someone can imagine a far-fetched and narrow way the statute might be misapplied. Instead, a substantial number of possible applications of the statute must unconstitutionally restrict speech, which isn’t the case here.
MVA lost this challenge at the federal district court level in 2014, and lost again at the Eighth Circuit Court of Appeals earlier this year. The Eighth Circuit found that a polling place is not, for free speech purposes, a public forum. In public forums—such as parks, sidewalks, and the town squares of bygone days—free speech is at its apex, and you can generally make whatever political speech or gestures you would like, short of making threats or inciting violence. In nonpublic forums like polling places, however, you can have restrictions if they are “viewpoint neutral” and “reasonable in light of the purpose which the forum at issue serves.”
There’s two separate things at work there. A “viewpoint neutral” restriction means you can’t favor one type of speech over another. You can’t allow Democrats to wear Hillary Clinton gear to the polling places while keeping out the MAGA hats. You can’t say Tea Party pins are fine but MoveOn.org shirts aren’t.
That’s simple to agree upon. The real fight is over the notion of whether restriction on speech in the form of stickers, badges, shirts, posters, and signs is “reasonable” in light of a polling place’s purpose.
The purpose of a polling place is to ensure that all eligible voters get to exercise their franchise and vote. The Eighth Circuit pointed out that the U.S. Supreme Court has long held that states have a legitimate interest in maintaining order and decorum in the polling place. They also have a compelling interest in protecting voters from confusion and undue influence. A button reading “Please ID Me” is designed to sow confusion. It’s designed to make people believe they have to provide identification or be turned away. It’s also designed to create divisiveness in a state where the citizens have resoundingly rejected the notion voters should provide the narrow forms of identification groups like MVA demand.
It isn’t a great sign that the Supreme Court decided to take this case. Indeed, there’s now a 5-4 conservative majority that is populated by people who are just fine with voter ID restrictions, such as Justices John Roberts, Anthony Kennedy, Samuel Alito, and Clarence Thomas, all of whom voted to uphold Indiana’s restrictive voter ID law. Though this case is not a voter ID case, it serves a similar purpose: scaring voters away from the polls. And the Court’s newest member, Justice Neil Gorsuch, has already shown himself to be sympathetic to increasing voting restrictions. A case that would allow a group of conservative voters to confuse potential voters by implying that they need identification, a case that would allow a group of anti-immigrant activists to wear shirts urging fellow voters to “build the wall”—that sort of thing is right up the conservative wing of the Court’s alley.
There’s a slight chance there would be a less nefarious reason the Supreme Court decided to take the case: There’s a circuit split. A circuit split occurs when some of the federal appellate courts in the United States decide things one way and others decide it the opposite. In this instance, the D.C. Circuit, the Fifth Circuit, and the Eighth Circuit all agree that polling places should be protected from partisan pressures. However, the Fourth and Seventh Circuit have ruled the other way. The Supreme Court is often compelled to weigh in to resolve these splits so that there is uniformity across the country. The possibility exists that the Court took the case in order to resolve that tension and would perhaps rule against MVA while resolving the issue, but given the composition of the Court, that seems unlikely.
It’s important to understand that this is all part of a long-range strategy for the Minnesota Voters Alliance and the attorneys that represent them, the Pacific Legal Foundation, to make voting much harder for people that are low-income, are people of color, are transient in their living situations, are re-enfranchised ex-felons, and more.
In 2012, MVA sued the state to try to restrict its same-day voting registration procedures. It argued that they are too lenient on possible felons and other ineligible voters and that there should be a blanket prohibition on certain people being able to vote. MVA’s lawyers also used the opportunity to talk about “ballot stuffing” and other buzzwords meant to convey that there was voter fraud in Minnesota.
In 2016, it directly challenged the state’s “felon challenge” statute. If your voting record notes you have been convicted of a felony, the election judge is required to ask you a series of questions to see if your rights have been restored and you are eligible to vote. People must answer under oath, and if their answers indicate they are eligible to vote, they are given a ballot. MVA wanted Minnesota to list all people convicted of felonies on voting rosters as categorically ineligible to vote. This ignores the fact that some may have had their voting rights restored in the interim. MVA even tried to get election judges to pledge they would engage in what they called “civil disobedience” and refuse to allow people to vote.
Earlier this year, MVA demanded that the Minnesota secretary of state’s office provide it with data on all voters in Minnesota. The state gave MVA voter names, addresses, and voting history, because that is public information. The state refused to give MVA other information it requested, such as details on voting challenges.
It’s no accident that this broad swath of data is exactly what President Donald Trump’s sham “election integrity” commission has also requested. MVA has already been invited to speak to the commission at its December meeting, presumably because its members are clearly of like mind that voter fraud is rampant—and, by extension, that the franchise of voting must be radically curtailed instead of expanded.
MVA has been trying to suppress the vote for years. A win for the organization in this most recent lawsuit would cement its right to use the polls to confuse and intimidate voters. A win would also bolster its ability to continue to undercut election freedoms in Minnesota, a state that works hard to ensure maximum voter participation. Now MVA has a champion of those efforts in the White House, and perhaps in the courts as well, and that’s bad for voting rights, bad for democracy, and bad for the United States.