Can It Be Illegal for Advocacy Group to “[P]rovid[e] Political Buttons to Be Worn at the Polling Place on Election Day”?

Certain kinds of electioneering materials may be banned at and near polling places on election day; that’s what the Court held in Burson v. Freeman (1992). But does this allow restraints on distributing such material at other times and places, on the theory that recipients will display (or are even intended to display) such material in the prohibited places? That’s what Common Cause Minnesota apparently argued, but a Minnesota Administrative Law Judge rejected that claim, in Common Cause Minnesota v. Minnesota Majority (Minn. Ofc. of Admin. Hrgs. Oct. 29, 2010):

The Complainant, Common Cause Minnesota, asserts that Respondents, together with the Northstar Tea Party Patriots, support a joint project called “Election Integrity Watch” that has the stated objective of “improv[ing] the overall integrity of elections in Minnesota by training thousands of voters on how to spot voter fraud and what to do about it when they do.” As part of that support, the Complainant alleges the Respondents are distributing political buttons and are encouraging individuals to wear these buttons when they go to the polls on November 2, 2010, “as a visible message to others that you are watching out for voter fraud.” The buttons state: “Please ID Me” and include an image of an open, watching eye with the word “integrity” written underneath. The Complainant contends that by providing the political buttons to be worn at the polling place on election day, the Respondents have violated Minn. Stat. § 211B.11.

Minn. Stat. § 211B.11, subd. 1 provides, in relevant part as follows:

Soliciting near polling places. A person may not display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated, or anywhere on the public property on which a polling place is situated, on primary or election day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.

… Polling place “campaign-free” zones implicate three central concerns in First Amendment jurisprudence: regulation of political speech, regulation of speech in a public forum, and regulation based on the content of speech. A restriction of any of those forms of speech requires strict scrutiny of the constitutionality of that restriction. That means that the restriction has to serve a compelling state interest; has to be narrowly tailored to serve that interest; and has to be the least restrictive means of achieving that interest. Courts have found that states have a compelling interest in maintaining the integrity of the voting place and preventing voter intimidation and election fraud, and have concluded, for example, that 100 foot campaign-free boundaries are narrowly tailored to achieve that interest even though they restrict speech in “quintessential public forums,” such as sidewalks and streets.

Although Section 211B.11 states that a person may not provide a political badge or political button to be worn at or about the polling place on election day, the statute is directed at conduct on election day. A violation of the statute occurs only when and if a person wears a political badge or button at or near the polling place on election day. Only then may the person who provided the political button to be worn at the polling place on election day be found to have violated the statute. To hold, as Complainant argues, that a person violates the statute by providing political buttons to others in anticipation that they will be worn on election day, amounts to a prior restraint on future conduct and expression….

It is also questionable, based on this record, whether the buttons at issue are “political buttons.” The statute prohibits persons from trying to induce or persuade voters within or near a polling place to vote for or against a candidate or ballot question. Although the terms “political buttons” and “political badges” are not defined in the statute, “political purposes” is defined as “an act intended or done to influence, directly or indirectly, voting at a primary or other election.” The buttons at issue state only “please ID me” with the image of an open eye. The message is apparently in support of requiring photo identification at state and local elections. Because that specific issue is not on any ballots, it is debatable whether the buttons can be interpreted as persuading voters to vote for or against a candidate or ballot question. The buttons may be interpreted simply as advocating specific voting procedures.

The Complaint is dismissed because it fails to allege a prima facie violation of Minn. Stat. § 211B.11 by Respondents.

UPDATE: Commenter Ed Grinberg points out that a federal judge, deciding a related case a couple of days later, suggested that people could be stopped from wearing “please ID me” badges at polling places, on the grounds that:

The record suggests that the buttons are designed to affect the actual voting process at the polls by intimating that voters are required to show identification before voting. This intimation could confuse voters and election officials and cause voters to refrain from voting because of increased delays or the misapprehension that identification is required. The buttons are also associated with a political movement to require voters to produce identification…. As such, prohibiting the buttons … is reasonably related to the legitimate state interest of “maintain[ing] peace, order, and decorum” at the polls.

The court therefore refused would-be button wearers’ request for a temporary restraining order that would have required election officials to let button wearers into polling places. But the court did not disagree (and had no occasion to disagree) with the Minnesota administrative judge’s decision that distributors of the buttons couldn’t be stopped from distributing them before the election.