Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Facial Challenges - Minnesota Voters Alliance V. Mansky

Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Facial Challenges - Minnesota Voters Alliance V. Mansky

Article excerpt

In Minnesota Voters Alliance v. Mansky, (1) the Supreme Court held that a Minnesota law that banned "political" apparel from being worn in polling places on Election Day facially violated the First Amendment because the term "political" was too indeterminate in context. (2) It did so despite the fact that the lower court had found the law valid as applied to the petitioner, (3) a decision the petitioner did not challenge, and also despite the fact that the Roberts Court has generally expressed skepticism toward facial rather than as-applied challenges. (4) Troublingly, the Court failed to engage directly with the question of why a facial challenge was appropriate in this case, and actively avoided mentioning the doctrine upon which its decision seemed to rest: vagueness. By glossing over the basis for its decision, the Court avoided grappling with the ways in which Mansky is in tension with recent vagueness cases, leaving future litigants unclear about whether there is renewed leeway to bring facial challenges to certain categories of vague statutes.

This case involved a century-old statute limiting campaigning at and around the ballot box. (5) Petitioners challenged only one provision of that law, the so-called "political apparel ban," (6) which stated that "[a] political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." (7) This ban was enforced by "election judges," temporary government employees installed at polling places on Election Day and imbued with the power "to decide whether a particular item falls within the ban." (8) If a person appeared at the polls wearing a forbidden item, the election judge was supposed to ask her to cover or remove it; if the person refused, the election judge was then required to inform her that the incident would be "recorded and referred to appropriate authorities." (9) The offending party was still allowed to vote, but could later be required to appear for an administrative hearing and could suffer a reprimand or civil penalty. (10)

In 2010, a group called the "Election Integrity Watch" (EIW) challenged the political apparel ban on First Amendment grounds. (11) Their suit, filed just five days before the upcoming general election, requested a temporary restraining order and preliminary injunction, which the district court denied. (12) The lawsuit nonetheless prompted local officials to issue an "Election Day Policy" to clarify the contours of the ban for election judges. (13) The Policy specified the types of apparel covered, including, but not limited to, "[a]ny item in support of or opposition to a ballot question at any election," "[i]ssue oriented material designed to influence or impact voting," and "[m]aterial promoting a group with recognizable political views." (14) On Election Day, various members of the EIW ran afoul of the ban, including several who were asked to cover their apparel. (15) Named petitioner Andrew Cilek, wearing a "Please I.D. Me" button and a "Don't Tread on Me" shirt with the logo of the Tea Party Patriots, "was twice turned away from the polls altogether, then finally permitted to vote after an election judge recorded his information." (16)

After the election, the district court dismissed the petitioners' claims, which challenged the law both on its face and as applied to them. (17) The Eighth Circuit affirmed the dismissal of the facial challenge, (18) finding the Minnesota law constitutional by likening it (19) to a Tennessee statute the Supreme Court had upheld against a First Amendment challenge in Burson v. Freeman. (20) The Minnesota Voters Alliance (MVA), Cilek, and election judge Susan Jeffers, all members of EIW, petitioned for review of the facial challenge and the Court granted certiorari. (21)

In a 7-2 vote, the Court found the law unconstitutional. Writing for the Court, Chief Justice Roberts (22) noted that because the law was tied to a specific, government-controlled location, it implicated the Court's forum-based approach to First Amendment cases. …

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