Nature of the Case
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Facts
Under Minnesota law, voters may not wear a political badge, political button, or anything bearing political insignia inside a polling place on Election Day. Today, Americans going to their polling places on Election Day expect to wait in a line, briefly interact with an election official, enter a private voting booth, and cast an anonymous ballot. Little about this ritual would have been familiar to a voter in the mid-to-late nineteenth century. Most ballots were privately prepared and took the form of “party tickets”-printed slates of candidate selections, often distinctive in appearance, that political parties distributed to their supporters and pressed upon others around the polls. The polling place often consisted simply of a “voting window” through which the voter would hand his ballot to an election official situated in a separate room with the ballot box. “The actual act of voting was usually performed in the open,” frequently within view of interested onlookers. The room containing the ballot boxes was “usually quiet and orderly,” but “the public space outside the window . . . was chaotic.” Crowds would gather to heckle and harass voters who appeared to be supporting the other side. Election etiquette required only that a ‘man of ordinary courage’ be able to make his way to the voting window.” Between 1888 and 1896, nearly every State adopted the secret ballot. Voting moved into a sequestered space where the voters could “deliberate and make a decision in . . . privacy.” States enacted “viewpoint-neutral restrictions on election-day speech” in the immediate vicinity of the polls. Today, all 50 States and the District of Columbia have laws curbing various forms of speech in and around polling places on Election Day. Alliance (P) is a nonprofit organization that “seeks better government through election reforms.” Andrew Cilek is a registered voter in Hennepin County and the executive director of MVA. Ps filed a lawsuit challenging the political apparel ban on First Amendment grounds. The District Court denied Ps’ request for a temporary restraining order and preliminary injunction and allowed the apparel ban to remain in effect for the upcoming election. On election day one individual was asked to cover up his Tea Party shirt. Another refused to conceal his “Please I. D. Me” button, and an election judge recorded his name and address for possible referral. Cilek-who was wearing the same button and a T-shirt with the words “Don’t Tread on Me” and the Tea Party Patriots logo-was twice turned away from the polls altogether, then finally permitted to vote after an election judge recorded his information. Ps now argue that the ban was unconstitutional both on its face and as applied to their apparel. The District Court granted the State’s (D) motions to dismiss, and the Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. The Court of Appeals found that the District Court had improperly considered matters outside the pleadings. On remand, the District Court granted summary judgment for D on the as-applied challenge, and this time the Court of Appeals affirmed.
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