Symposium: Whose side is the First Amendment really on?

Daniel I. Weiner is senior counsel and Christopher R. Deluzio is counsel for the Democracy Program at the Brennan Center for Justice at NYU School of Law.

As the petitioners in Minnesota Voters Alliance v. Mansky would have it, the case is a classic First Amendment dispute. In one corner, an intrepid band of would-be speakers. In the other, a misguided bureaucracy trying to silence them in the name of public order. It is understandable that the petitioners would want to frame the case this way, but accepting their frame misses the central problem the court must resolve. The First Amendment protects much more than the right to speak. Among other things, as we have been reminded throughout this term, the First Amendment also safeguards the right to vote. The petitioners’ expression – especially their desire to wear “Please I.D. Me” buttons urging poll workers to check identification, despite Minnesota having no such requirement – has the potential to burden voting rights. Voter ID rules are already notorious for sowing confusion at the polls. Moreover, the “Please I.D. Me” buttons appear to have been connected to a volunteer “ballot security” operation of the sort that has been shown to create an intimidating environment for some voters.

In short, this is not a case that pits the First Amendment against some unrelated government interest. Instead, the question is whether Minnesota can safeguard First Amendment-protected voting rights by prohibiting potentially misleading, intimidating or otherwise disruptive messages for the short time a putative speaker is physically present at a voting location. At least within the narrow confines of the polling place, the First Amendment right to vote must be paramount.

The First Amendment and democracy

For all the controversy in this area of law, there is broad agreement that First Amendment protections for speech and association are integral to representative democracy in the United States. The freedom to express one’s political views is obviously vital. But so is the right to associate with other like-minded electors by casting a vote. In fact, these two rights depend on one another. Freedom of expression facilitates a robust “marketplace of ideas” that fosters an informed electorate, but it is voting — often the most direct mechanism through which citizens can translate their views into action — that gives the marketplace its basic reason for being.

The fact that speech and voting rights derive from the same source and are complementary does not prevent them from coming into tension. This is especially true in the polling place, which is an enticing locale for political expression, including expression that is potentially disruptive to the voting process. Under such circumstances, as Justice Anthony Kennedy wrote in his concurrence in Burson v. Freeman, “the First Amendment permits freedom of expression to yield to the extent necessary for the accommodation of another constitutional right” — the right to vote.

“Please I.D. Me”

Burson involved a state law that barred electioneering in or around a polling place — including the distribution or even passive display of campaign materials. The Mansky petitioners emphasize that they do not intend to engage in electioneering. However, their desired expression is, if anything, even more likely to disrupt the voting process. That is because the “Please I.D. Me” buttons at the heart of this case do not simply convey a point of view, but indeed call on poll workers to take a particular action (checking voter ID) that is not required by law and risks fostering misperceptions about the law.

The mistaken belief that identification is required to vote even in jurisdictions that have no such requirement is already widespread and well documented. Some of that confusion stems from poll workers who simply do not know the law. For instance, a survey of over 10,000 voters in the 2012 presidential election found that “12% of voters in non-identification states were still required to show photo identification in order to vote.” Disturbingly, of those required to show identification despite the absence of any requirement, the study found that “African American and Hispanic voters were much more likely to be required to show identification than were white voters—1.6 times more likely, in the case of black voters, and more than 2.5 times more likely in the case of Hispanics.”

When election officials themselves are unsure about voter identification requirements, it should come as little surprise that there is substantial confusion among voters. The Pew Research Center’s national survey of voters in the months preceding the 2016 general election found that nearly 40 percent of voters “living in states with no identification requirement incorrectly believe that they will be required to show identification prior to voting.” Here as well there was substantial racial disparity in the results, with African-American and Hispanic voters more likely to believe incorrectly that identification was required.

Given voter uncertainty about identification requirements and the ignorance of many poll workers, “Please I.D. Me” buttons are likely to contribute to confusion about who is entitled to vote, which could deter significant numbers of eligible voters from exercising their fundamental rights at the polls.

In fact, that appears to have been the point. The trial court’s 2014 decision includes the following excerpt from the website of Election Integrity Watch, which distributed the buttons the petitioners wanted to wear:

While Minnesota does not require an individual to show an ID, let’s act like it does. This simple act of showing an ID will likely result in a spontaneous reaction from others in line behind you to show their ID as well. Any person in line thinking about committing voter impersonation will likely be dissuaded from doing so.

In reality, in-person voter fraud is virtually nonexistent. The only people likely to have been dissuaded from voting would have been eligible voters who simply lacked ID.

There is abundant evidence that private “ballot security” operations and voter challenge efforts like the election integrity initiative at issue here foster an intimidating environment that drives eligible voters away from the polls. The participants in such efforts are entitled to advocate for their views. However, the state is entitled to keep that advocacy out of the polling place to ensure that everyone who is entitled to vote feels comfortable doing so.

Tea Party apparel

The petitioners also wanted to wear apparel bearing the logo of the Tea Party and associated slogans and images, like the Gadsden flag and the message, “Don’t Tread on Me.” Relying on Burson, courts have long held that states and localities can prohibit both candidate and party paraphernalia, including clothing, in polling places. There are many good reasons for such rules, including the potential for bias on the part of poll workers (something that appears to concern the petitioners themselves).

Although not technically a political party, the Tea Party is a political movement with the express goal of electing a certain type of conservative, anti-establishment Republican. There is even a “Tea Party Caucus” in the House of Representatives, whose members are all Republicans (at the time this case arose it was chaired by a Minnesota congresswoman, Michele Bachmann). It is difficult to imagine a brand more closely associated with a major party. If Minnesota can prohibit party paraphernalia in polling places, it should also be able to prohibit Tea Party apparel (and that of the Tea Party’s progressive equivalents, such as Our Revolution and MoveOn.org).

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The foregoing analysis does not eliminate the need for line-drawing. Acknowledging that Minnesota has a significant and even compelling interest in restricting certain messages in the polling place to safeguard the right to vote does not give the state carte blanche to restrict any speech it wants.

But that is simply not the case before the court. The petitioners have not pointed to any instance in which Minnesota’s law was applied to prohibit speech within a polling place that should have been allowed. The overbreadth doctrine is “strong medicine,” and has a tendency, as Justice Antonin Scalia noted in United States v. Williams, “to summon forth an endless stream of fanciful hypotheticals.” Hypotheticals alone are not a sufficient basis to declare an otherwise valid statute facially overbroad and unconstitutional, especially when, as here, the law in question itself safeguards important First Amendment interests. To the extent that some of the hypotheticals the petitioners invoke would raise legitimate questions, they should be judged on their own merits if they ever come to pass. In the meantime, the court should uphold Minnesota’s law.