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Thursday, June 14, 2018

(SCOTUS Term): Court rejects ban on political apparel in polling places

Although it did not deal with compelled speech on the anniversary of Barnette, the Court did knock out one of its free-speech cases--Minnesota Voters Alliance v. Mansky. The Chief wrote for seven Justices, declaring invalid a state law prohibiting "political badge, political button, or other political insignia" being worn "at or about the polling place."

The polling place is a nonpublic forum and the statute was viewpoint neutral. But it was not reasonable. The word "political" is undefined. It is broader than "campaign" (a category dealt with in a different, unchallenged provision), but its scope remains uncertain and is not clarified by various administrative-guidance policies, which offer examples that appear contradictory. Roberts argued this "poses riddles that even the State's top lawyers struggle to solve," citing to the extensive, inconsistent hypotheticals the Court peppered counsel with during argument. That uncertainty also vested too much discretion in the election-day judges, who cannot know all the "issues" that might be reflected by a piece of apparel.

The sort of parsing for over- or under-inclusiveness that the Court does here typically is part of strict or intermediate scrutiny, rather than reasonableness. But the result makes sense, as a word like political is seemingly boundless. And the Court remained at least nominally deferential of the state's interest in making the polling place a space of calm reflection and cited approvingly to narrower laws in other states (Red and Blue) aimed at the same goal.

Justice Sotomayor dissented for herself and Justice Breyer, arguing that the Court should certify to the question of the statute's precise meaning to the Minnesota Supreme Court. The Chief dropped a footnote to reject certification, emphasizing the discretionary nature of certification, the lateness of the state's suggestion of certification in the litigation, that the state had offered an interpretation for the Court to use in the case, and that there is no obvious alternative interpretation that the state court might adopt.

This is the second time in two Terms that Sotomayor has argued for certification to avoid a First Amendment decision (Justice Alito joined her prior attempt). It is interesting that Court has stated that certification (like Pullman abstention, the doctrine it arguably supersedes) should be used sparingly in First Amendment cases, given the chilling effect caused by delays in the certification process.

Posted by Howard Wasserman on June 14, 2018 at 11:00 AM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Yeah, but that does not help the State avoid liability, an injunction, and attorney's fees in this case. It may help the State going forward, but how remains uncertain.

Posted by: Howard Wasserman | Jun 18, 2018 4:10:07 PM

Can't the Minnesota SC adopt a narrowing interpretation anyway? Assuming the question is properly before it according to Minnesota law. There should be no difference from the federal courts' views whether a narrower rule to replace the one struck down comes from the legislature or the Minnesota judiciary.

Posted by: Jr | Jun 18, 2018 4:07:52 PM

I don't think so, because he then follows up with several (I believe) good reasons for exercising discretion not to certify. But it works to bolster the exercise of discretion, by reminding even the dissenter that it is discretionary and not automatic, even if we disagree about how to exercise it.

Posted by: Howard Wasserman | Jun 14, 2018 5:12:28 PM

Thanks for that interesting ruling . Just worth to add or to note , that historical perspective given by the dissenting opinion , here I quote :

Furthermore, the Court also should consider the history of Minnesota’s “implementation” of the statute in evaluating the facial challenge here. Forsyth County v. Nationalist Movement, 505 U. S. 123, 131 (1992). That history offers some assurance that the statute has not been interpreted or applied in an unreasonable manner. There is no evidence that any individual who refused to remove a political item has been prohibited from voting, and respondents maintain that no one has been referred for prosecution for violating the provision. See Brief for Respondents 4, n. 2. Since the political apparel ban was enacted in the late 19th century, this is the first time the statute has been challenged on the basis that certain speech is not “political.” Tr. of Oral Arg. 44. Even then, petitioners’ as-applied challenge was rejected by the District Court and the Court of Appeals for the Eighth Circuit. See Minnesota Majority v. Mansky, 62 F. Supp. 3d 870, 878 (Minn. 2014); Minnesota Majority v. Mansky, 2015 WL 13636675, *12 (D Minn., Mar. 23, 2015); Minnesota Majority v. Mansky, 849 F. 3d 749, 752–753 (CA8 2017). Petitioners did not seek review of those claims in this Court. See Pet. for Cert. i. On the whole, the historical application of the law helps illustrate that the statute is not so “indeterminate” so as to “carr[y] with it ‘[t]he opportunity for abuse.’”


Posted by: El roam | Jun 14, 2018 2:52:33 PM

What do we make of the majority's footnote 7 responding to the dissent where it says:

"The decision to certify, however, "rests in the sound discretion of the federal court." Expressions Hair Design v. Schneiderman, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., concurring in judgment) (slip op., at 8). We decline to exercise that discretion in this instance."

It looks like Roberts is suggesting that Sotomayor is being somehow inconsistent. Yet the quoted language was originally from Lehman Brothers v. Schein, quoted by Sotomayor in the course of stressing the usefulness of certification. It seems strange to pull the quote out-of-context in that way.

Especially when in the Expressions concurrence, Sotomayor concludes:

"Given the significant benefits certification offered and given the absence of persuasive downsides identified by the Second Circuit, the decision not to certify was an abuse of discretion."

It's obvious that Sotomayor doesn't deny there is generally discretion, so I just wonder what Roberts was aiming at with such a cursory rejection with a curious citation.

Posted by: CrispyBacon | Jun 14, 2018 2:51:20 PM

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