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Analysis

Whose Side Is the First Amendment Really On?

Minnesota Voters Alliance v. Mansky highlights the fact that even though speech and voting rights derive from the same source and are complementary, there is potential for conflict.

January 24, 2018

Cross-posted from SCOTUS­b­log

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).

***

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.

(Photo: Getty)