Symposium: Nothing undignified about political messaging — in America, we call that democracy

Rodney Smolla is dean and professor of law at Widener University Delaware Law School.

The Supreme Court should strike down the Minnesota statute at issue in Minnesota Voters Alliance v. Mansky. The law provides, “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” The sweep of the statute is breathtaking, encompassing virtually all political messages. It precludes not only direct advocacy of a candidate’s election, but even the communication of an ideological message, such as “Please I.D. Me” buttons, or promotion of the identity of groups with recognizable political views, such as the Tea Party or MoveOn.org.

The U.S. Court of Appeals for the 8th Circuit upheld the statute in a short and mechanistic analysis. A polling place, the court reasoned, is a “nonpublic forum.” The First Amendment standard applicable to the regulation of speech in a nonpublic forum, the court held, requires merely that the law be viewpoint neutral and reasonable in light of the purpose the forum serves. The court held that the Minnesota law was viewpoint neutral. The law would equally ban the wearing of “Vote for Trump” and “Vote for Oprah,” as it would equally bar messages promoting the “Tea Party,” the “Green Party,” the “NRA” or the “NAACP.”  Ruling that the state has a legitimate interest in maintaining “peace, order and decorum” in the polling place, the court upheld the law.

The leading Supreme Court decision is Burson v. Freeman. Only two of the court’s current justices, Anthony Kennedy and Clarence Thomas, were on the court in 1992, when Burson was decided, but Thomas did not participate. Kennedy joined a four-justice plurality opinion written by Justice Harry Blackmun, also joined by Chief Justice William Rehnquist and Justice Byron White, upholding a Tennessee ban on the “display of campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position” within 100 feet of a polling place.

Burson did not decide the forum status of the space inside a polling place. Of the eight justices who participated in Burson, only Justice Antonin Scalia thought that the area immediately in front of a polling place was not a public forum. The four justices in the plurality and the three dissenting justices (John Paul Stevens, Sandra Day O’Connor and David Souter) all presumed the statute regulated speech in a traditional public forum — the streets and sidewalks outside polling places. But as the 8th Circuit and several other lower courts have held, the interior polling-place spaces do not appear to fit the normal definitions of “traditional” or “dedicated” public forums, places that by tradition or policy are dedicated to assembly and debate. I doubt that the Supreme Court will stretch existing public-forum law and declare polling places to be public forums.

An alternative approach, which I believe will and should prevail, is to hold that even if a polling place is not a public forum, the extraordinarily broad Minnesota ban is unreasonable. Burson did not decide whether the expression of a person entering the polling place to vote could be regulated in the same manner as the speech of those lying in wait for the voters entering the polling place to attempt to influence their decisions. Burson was plainly concerned with traditional “electioneering” at polling places. The plurality in Burson described the law as creating a “campaign-free zone,” repeatedly emphasizing the state’s compelling interests in preventing voter intimidation and election fraud. In its description of the history of polling-place regulations, for example, the plurality described the abuses such laws were designed to target:

Approaching the polling place under this system was akin to entering an open auction place. As the elector started his journey to the polls, he was met by various party ticket peddlers “who were only too anxious to supply him with their party tickets.”

In my view, the “who” should matter as much as the “where.” It is one thing to assert that voters need and deserve some measure of respite from outside pressure by persons lurking around the polling place. The possibility that those persons might actually intimidate voters or engage in activities tantamount to election fraud is at least plausible. The four justices in the plurality in Burson made much of the fact that they were only keeping such active politicking 100 feet at bay.

It seems utterly implausible, however, that anything so fearful as intimidation or election fraud is posed by a voter passively wearing a campaign button or a politically expressive T-shirt as he or she enters the polling place. If the voter goes beyond such passive expression, crossing the line to actively “campaign” or “solicit votes” while inside the polling place, perhaps concerns over intimidation or fraud might be implicated.

But the mere passive wearing of a campaign button or a T-shirt expressing a political message or group affiliation cannot credibly be treated as so inherently likely to trigger such dangers as to warrant a total ban. Indeed, the 8th Circuit did not attempt to defend the law as justified by any such palpable interests, but instead invoked the highly fuzzy, soft and subjective interests of the state in regulating the “peace, order and decorum” of the voting place.

Even in those pockets of First Amendment law in which the Supreme Court has held that less rigorous standards than “strict scrutiny” govern the content-based regulation of speech, such as the regulation of commercial speech, or the speech of government employees or speech in public schools, the arc of modern First Amendment law has increasingly demanded that the government produce real evidence of material harm.

Consider, by analogy, the venerable 1969 decision in Tinker v. Des Moines Independent Community School District, holding that a child had a First Amendment right to wear an armband, as a symbol of protest against the Vietnam War, inside a public school. The interiors of public schools are not public forums, but the Supreme Court in Tinker held that free-speech rights are not checked at the schoolhouse gate, and that schools had the burden of proving the expression would materially and substantially disrupt the educational environment. If that is the rule for children entering a school, surely something akin to it should apply to adults entering a polling place.

There are plenty of laws on the books to preserve order, or to prevent voter intimidation or fraud. The First Amendment poses no bar to their enforcement. But Americans voters are not so squeamish, frail or fragile as to be intimidated or defrauded by a fellow voter’s T-shirt or button. Nor are they so hot-tempered that they will be reflexively driven to fisticuffs or undignified outbursts at the mere sight of the very opposing views to which they have been unrelentingly exposed in the weeks and hours and minutes leading up to their vote.

My instinct is that most Americans, unschooled in constitutional law and its myriad multi-part tests, but amply educated with street smarts, would assess the Minnesota restriction as somewhere between uncommonly silly and unaccountably stupid. Here is our average American voter, driving to cast a vote on election day. For weeks the voter has been bombarded with political messages on television, radio, direct mail, phone calls, text messages, internet pop-up ads, buttons, T-shirts, billboards and signs on front lawns and utility poles. Practically every waking minute of every waning day the voter has been exposed to exhortations seeking to influence the voter’s choices. The messages reach a fever pitch on election day itself, with signs galore lining the streets leading to the middle school or local church or community center that is the voter’s polling place.

Imagine the voter pulls into the parking lot, just as a fellow citizen also arrives, her car tattooed with political bumper stickers. She alights, wearing the T-shirt of a particular political cause, upon which is pinned the campaign button of her candidate of choice. At a distance of 100 feet from the entrance to the polling place, various political activists are brandishing signs, offering leaflets and sample ballots to voters approaching the entry to the polling place. Both our voters reach the polling place door. An election official explains to the voter wearing the politically expressive shirt and campaign button that she must cover those expressions, or be charged with a misdemeanor. One hopes our hapless expressive voter brought a windbreaker to don as cover. Or perhaps the election officials have a supply of cover-up smocks that can be slipped over anyone wearing a forbidden message. And why, sayeth the state, must the T-shirt and button be covered up? To prevent intimidation? Voter fraud? Get real. To preserve the “dignity” of the voting place? What is undignified about a voter proclaiming his or her views? We talk metaphorically about the sacredness of the right to vote — but c’mon, the polling place ain’t church. There is nothing inherently undignified in the expression of a political message. In America, we call that democracy.