Minnesota Voters Alliance v. Mansky

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MINNESOTA VOTERS ALLIANCE ET AL. v. MANSKY
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 16–1435. Argued February 28, 2018—Decided June 14, 2018
Minnesota law prohibits individuals, including voters, from wearing a
“political badge, political button, or other political insignia” inside a
polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017).
This “political apparel ban” covers articles of clothing and accessories
with political insignia upon them. State election judges have the au-
thority to decide whether a particular item falls within the ban. Vio-
lators are subject to a civil penalty or prosecution for a petty misde-
meanor.
Days before the November 2010 election, petitioner Minnesota Vot-
ers Alliance (MVA) and other plaintiffs challenged the ban in Federal
District Court on First Amendment grounds. In response to the law-
suit, the State distributed an Election Day Policy to election officials
providing guidance on enforcement of the ban. The Election Day Pol-
icy specified examples of prohibited apparel to include items display-
ing the name of a political party, items displaying the name of a can-
didate, items supporting or opposing a ballot question, “[i]ssue
oriented material designed to influence or impact voting,” and
“[m]aterial promoting a group with recognizable political views.”
App. to Pet. for Cert. I–1 to I–2. On Election Day, some voters ran
into trouble with the ban, including petitioner Andrew Cilek, who al-
legedly was turned away from the polls for wearing a “Please I. D.
Me” button and a T-shirt bearing the words “Don’t Tread on Me” and
a Tea Party Patriots logo.
MVA and the other plaintiffs argued that the ban was unconstitu-
tional both on its face and as applied to their particular items of ap-
parel. The District Court granted the State’s motion to dismiss, and
the Eighth Circuit affirmed the dismissal of the facial challenge and
2 MINNESOTA VOTERS ALLIANCE v. MANSKY
Syllabus
remanded the case for further proceedings on the as-applied chal-
lenge. The District Court granted summary judgment to the State on
the as-applied challenge, and the Eighth Circuit affirmed. MVA,
Cilek, and petitioner Susan Jeffers (collectively MVA) petitioned for
review of their facial First Amendment claim only.
Held: Minnesota’s political apparel ban violates the Free Speech Clause
of the First Amendment. Pp. 7–19.
(a) Because the political apparel ban applies only in a specific loca-
tion—the interior of a polling place—it implicates the Court’s “ ‘forum
based’ approach for assessing restrictions that the government seeks
to place on the use of its property.” International Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U. S. 672, 678. A polling place in
Minnesota qualifies as a nonpublic forum under the Court’s prece-
dents. As such it may be subject to content-based restrictions on
speech, see, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc.,
473 U. S. 788, 806–811, so long as the restrictions are “reasonable
and not an effort to suppress expression merely because public offi-
cials oppose the speaker’s view,” Perry Ed. Assn. v. Perry Local Edu-
cators’ Assn., 460 U. S. 37, 46. Because the text of the statute makes
no distinction based on the speaker’s political persuasion, the ques-
tion is whether the apparel ban is “reasonable in light of the purpose
served by the forum”: voting. Cornelius, 473 U. S., at 806. Pp. 7–9.
(b) Minnesota’s prohibition on political apparel serves a permissi-
ble objective. In Burson v. Freeman, 504 U. S. 191, the Court upheld
a Tennessee law imposing a 100-foot zone around polling place en-
trances in which no person could solicit votes, distribute campaign
materials, or “display . . . campaign posters, signs or other campaign
materials.” 504 U. S., at 193–194 (plurality opinion). In finding that
the law withstood even strict scrutiny, the Burson plurality—whose
analysis was endorsed by Justice Scalia’s opinion concurring in the
judgment—emphasized the problems of fraud, voter intimidation,
confusion, and general disorder that had plagued polling places in the
past. Against that historical backdrop, the plurality and Justice
Scalia upheld Tennessee’s determination that a campaign-free zone
outside the polls was necessary to secure the advantages of the secret
ballot and protect the right to vote.
MVA argues that Burson considered only active campaigning out-
side the polling place by campaign workers and others trying to en-
gage voters approaching the polls, while Minnesota’s ban prohibits
passive self-expression by voters themselves when voting. But alt-
hough the plurality and Justice Scalia in Burson did not expressly
address the application of the Tennessee law to apparel—or consider
the interior of the polling place as opposed to its environs—the Ten-
nessee law swept broadly to ban even the plain “display” of a cam-
Cite as: 585 U. S. ____ (2018) 3
Syllabus
paign-related message, and the Burson Court upheld the law in full.
The plurality’s conclusion that the State was warranted in designat-
ing an area for the voters as “their own” as they enter the polling
place, id., at 210, suggests an interest more significant, not less,
within that place.
No basis exists for rejecting Minnesota’s determination that some
forms of campaign advocacy should be excluded from the polling
place in order to set it aside as “an island of calm in which voters can
peacefully contemplate their choices.” Brief for Respondents 43.
Casting a vote is a weighty civic act, and the State may reasonably
decide that the interior of the polling place should reflect the distinc-
tion between voting and campaigning. And while the Court has not-
ed the “nondisruptive” nature of expressive apparel in more mundane
settings, see, e.g., Board of Airport Comm’rs of Los Angeles v. Jews
for Jesus, Inc., 482 U. S. 569, 576, those observations do not speak to
the unique context of a polling place on Election Day. Pp. 9–12.
(c) But the line the State draws must be reasonable. The State
therefore must be able to articulate some sensible basis for distin-
guishing what may come in from what must stay out. The unmoored
use of the term “political” in the Minnesota law, combined with hap-
hazard interpretations the State has provided in official guidance and
representations to this Court, cause Minnesota’s restriction to fail
this test.
The statute does not define the term “political,” a word that can
broadly encompass anything “of or relating to government, a govern-
ment, or the conduct of governmental affairs.” Webster’s Third New
International Dictionary 1755. The State argues that the apparel
ban should be interpreted more narrowly to proscribe “only words
and symbols that an objectively reasonable observer would perceive
as conveying a message about the electoral choices at issue in [the]
polling place.” Brief for Respondents 13. At the same time, the State
argues that the category of “political” apparel is not limited to cam-
paign apparel.
The Court considers a State’s authoritative constructions in inter-
preting a state law. But far from clarifying the indeterminate scope
of the provision, Minnesota’s “electoral choices” construction intro-
duces confusing line-drawing problems. For specific examples of
what messages are banned under that standard, the State points to
the Election Day Policy. The first three categories of prohibited items
in the Policy are clear. But the next category—“issue oriented mate-
rial designed to influence or impact voting”—raises more questions
than it answers. The State takes the position that any subject on
which a political candidate or party has taken a stance qualifies as
an “issue” within the meaning of that category. Such a rule—whose
4 MINNESOTA VOTERS ALLIANCE v. MANSKY
Syllabus
fair enforcement requires an election judge to maintain a mental in-
dex of the platforms and positions of every candidate and party on
the ballot—is not reasonable.
The next broad category in the Election Day Policy—any item
“promoting a group with recognizable political views”—makes mat-
ters worse. The State does not confine that category to groups that
have endorsed a candidate or taken a position on a ballot question.
As a result, any number of associations, educational institutions,
businesses, and religious organizations could have an opinion on an
“issue confronting voters.” The State represents that the ban is lim-
ited to apparel promoting groups with “well-known” political posi-
tions. But that requirement only increases the potential for erratic
application, as its enforcement may turn in significant part on the
background knowledge of the particular election judge applying it.
It is “self-evident” that an indeterminate prohibition carries with it
“[t]he opportunity for abuse, especially where [it] has received a vir-
tually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576.
The discretion election judges exercise in enforcing the ban must be
guided by objective, workable standards. Without them, an election
judge’s own politics may shape his views on what counts as “politi-
cal.” And if voters experience or witness episodes of unfair or incon-
sistent enforcement of the ban, the State’s interest in maintaining a
polling place free of distraction and disruption would be undermined
by the very measure intended to further it. Thus, if a State wishes to
set its polling places apart as areas free of partisan discord, it must
employ a more discernible approach than the one offered by Minneso-
ta here. Pp. 12–19.
849 F. 3d 749, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, GINSBURG, ALITO, KAGAN, and GORSUCH, JJ., joined. SO-
TOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1435
_________________
MINNESOTA VOTERS ALLIANCE, ET AL.,
PETITIONERS v. JOE MANSKY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 14, 2018]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Under Minnesota law, voters may not wear a political
badge, political button, or anything bearing political insig-
nia inside a polling place on Election Day. The question
presented is whether this ban violates the Free Speech
Clause of the First Amendment.
I
A
Today, Americans going to their polling places on Elec-
tion 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. For one thing, voters typically deposited pri-
vately prepared ballots at the polls instead of completing
official ballots on-site. These pre-made ballots often 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. See E. Evans, A History of the
2 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
Australian Ballot System in the United States 6–11 (1917)
(Evans); R. Bensel, The American Ballot Box in the Mid-
Nineteenth Century 14–15 (2004) (Bensel).
The physical arrangement confronting the voter was
also different. 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. Bensel 11, 13; see, e.g., C. Rowell,
Digest of Contested-Election Cases in the Fifty-First
Congress 224 (1891) (report of Rep. Lacey) (considering
whether “the ability to reach the window and actually
tender the ticket to the [election] judges” is “essential in
all cases to constitute a good offer to vote”); Holzer, Elec-
tion Day 1860, Smithsonian Magazine (Nov. 2008), pp. 46,
52 (describing the interior voting window on the third floor
of the Springfield, Illinois courthouse where Abraham
Lincoln voted). As a result of this arrangement, “the
actual act of voting was usually performed in the open,”
frequently within view of interested onlookers. Rusk, The
Effect of the Australian Ballot Reform on Split Ticket
Voting: 1876–1908, Am. Pol. Sci. Rev. 1220, 1221 (1970)
(Rusk); see Evans 11–13.
As documented in Burson v. Freeman, 504 U. S. 191(1992), “[a]pproaching the polling place under this system
was akin to entering an open auction place.” Id., at 202(plurality opinion). The room containing the ballot boxes
was “usually quiet and orderly,” but “[t]he public space
outside the window . . . was chaotic.” Bensel 13. Election-
eering of all kinds was permitted. See id., at 13, 16–17; R.
Dinkin, Election Day: A Documentary History 19 (2002).
Crowds would gather to heckle and harass voters who
appeared to be supporting the other side. Indeed, “[u]nder
the informal conventions of the period, election etiquette
required only that a ‘man of ordinary courage’ be able to
make his way to the voting window.” Bensel 20–21. “In
short, these early elections were not a very pleasant spec-
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
tacle for those who believed in democratic government.”
Burson, 504 U. S., at 202 (plurality opinion) (internal
quotation marks omitted).
By the late nineteenth century, States began imple-
menting reforms to address these vulnerabilities and
improve the reliability of elections. Between 1888 and
1896, nearly every State adopted the secret ballot. See id.,at 203–205. Because voters now needed to mark their
state-printed ballots on-site and in secret, voting moved
into a sequestered space where the voters could “deliber-
ate and make a decision in . . . privacy.” Rusk 1221; see
Evans 35; 1889 Minn. Stat. ch. 3, §§27–28, p. 21 (regulat-
ing, as part of Minnesota’s secret ballot law, the arrange-
ment of voting compartments inside the polling place). In
addition, States enacted “viewpoint-neutral restrictions on
election-day speech” in the immediate vicinity of the polls.
Burson, 504 U. S., at 214–215 (Scalia, J., concurring in
judgment) (by 1900, 34 of 45 States had such restrictions).
Today, all 50 States and the District of Columbia have
laws curbing various forms of speech in and around poll-
ing places on Election Day.
Minnesota’s such law contains three prohibitions, only
one of which is challenged here. See Minn. Stat.
§211B.11(1) (Supp. 2017). The first sentence of
§211B.11(1) forbids any person to “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 situ-
ated” to “vote for or refrain from voting for a candidate or
ballot question.” The second sentence prohibits the distri-
bution of “political badges, political buttons, or other
political insignia to be worn at or about the polling place.”
The third sentence—the “political apparel ban”—states
that a “political badge, political button, or other political
insignia may not be worn at or about the polling place.”
Versions of all three prohibitions have been on the books
4 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
in Minnesota for over a century. See 1893 Minn. Laws ch.
4, §108, pp. 51–52; 1912 Minn. Laws, 1st Spec. Sess., ch. 3,
p. 24; 1988 Minn. Laws ch. 578, Art. 3, §11, p. 594 (reen-
acting the prohibitions as part of §211B.11).
There is no dispute that the political apparel ban ap-
plies only within the polling place, and covers articles of
clothing and accessories with “political insignia” upon
them. Minnesota election judges—temporary government
employees working the polls on Election Day—have the
authority to decide whether a particular item falls within
the ban. App. to Pet. for Cert. I–1. If a voter shows up
wearing a prohibited item, the election judge is to ask the
individual to conceal or remove it. Id., at I–2. If the indi-
vidual refuses, the election judge must allow him to vote,
while making clear that the incident “will be recorded and
referred to appropriate authorities.” Ibid. Violators are
subject to an administrative process before the Minnesota
Office of Administrative Hearings, which, upon finding a
violation, may issue a reprimand or impose a civil penalty.
Minn. Stat. §§211B.32, 211B.35(2) (2014). That adminis-
trative body may also refer the complaint to the county
attorney for prosecution as a petty misdemeanor; the
maximum penalty is a $300 fine. §§211B.11(4) (Supp.
2017), 211B.35(2) (2014), 609.02(4a) (2016).
B
Petitioner Minnesota Voters Alliance (MVA) is a non-
profit organization that “seeks better government through
election reforms.” Pet. for Cert. 5. Petitioner Andrew
Cilek is a registered voter in Hennepin County and the
executive director of MVA; petitioner Susan Jeffers served
in 2010 as a Ramsey County election judge. Five days
before the November 2010 election, MVA, Jeffers, and
other likeminded groups and individuals filed a lawsuit in
Federal District Court challenging the political apparel
ban on First Amendment grounds. The groups—calling
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
themselves “Election Integrity Watch” (EIW)—planned to
have supporters wear buttons to the polls printed with the
words “Please I. D. Me,” a picture of an eye, and a tele-
phone number and web address for EIW. (Minnesota law
does not require individuals to show identification to vote.)
One of the individual plaintiffs also planned to wear a
“Tea Party Patriots” shirt. The District Court denied the
plaintiffs’ request for a temporary restraining order and
preliminary injunction and allowed the apparel ban to
remain in effect for the upcoming election.
In response to the lawsuit, officials for Hennepin and
Ramsey Counties distributed to election judges an “Elec-
tion Day Policy,” providing guidance on the enforcement of
the political apparel ban. The Minnesota Secretary of
State also distributed the Policy to election officials
throughout the State. The Policy specified that examples
of apparel falling within the ban “include, but are not
limited to”:
“• Any item including the name of a political party in
Minnesota, such as the Republican, [Democratic-
Farmer-Labor], Independence, Green or Libertar-
ian parties.
• Any item including the name of a candidate at any
election.
• Any item in support of or opposition to a ballot
question at any election.
• Issue oriented material designed to influence or
impact voting (including specifically the ‘Please
I. D. Me’ buttons).
• Material promoting a group with recognizable po-
litical views (such as the Tea Party, MoveOn.org,
and so on).” App. to Pet. for Cert. I–1 to I–2.
As alleged in the plaintiffs’ amended complaint and
6 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
supporting declarations, some voters associated with EIW
ran into trouble with the ban on Election Day. One indi-
vidual 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. And petitioner 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.
Back in court, MVA and the other plaintiffs (now joined
by Cilek) argued that the ban was unconstitutional both
on its face and as applied to their apparel. The District
Court granted the State’s motions to dismiss, and the
Court of Appeals for the Eighth Circuit affirmed in part
and reversed in part. Minnesota Majority v. Mansky, 708
F. 3d 1051 (2013). In evaluating MVA’s facial challenge,
the Court of Appeals observed that this Court had previ-
ously upheld a state law restricting speech “related to a
political campaign” in a 100-foot zone outside a polling
place; the Court of Appeals determined that Minnesota’s
law likewise passed constitutional muster. Id., at 1056–
1058 (quoting Burson, 504 U. S., at 197 (plurality opin-
ion)). The Court of Appeals reversed the dismissal of the
plaintiffs’ as-applied challenge, however, finding that the
District Court had improperly considered matters outside
the pleadings. 708 F. 3d, at 1059. Judge Shepherd con-
curred in part and dissented in part. In his view, Minne-
sota’s broad restriction on political apparel did not “ra-
tionally and reasonably” serve the State’s asserted
interests. Id., at 1062. On remand, the District Court
granted summary judgment for the State on the as-
applied challenge, and this time the Court of Appeals
affirmed. Minnesota Majority v. Mansky, 849 F. 3d 749(2017).
MVA, Cilek, and Jeffers (hereinafter MVA) petitioned
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
for review of their facial First Amendment claim only. We
granted certiorari. 583 U. S. ___ (2017).
II
The First Amendment prohibits laws “abridging the
freedom of speech.” Minnesota’s ban on wearing any
“political badge, political button, or other political insig-
nia” plainly restricts a form of expression within the pro-
tection of the First Amendment.
But the ban applies only in a specific location: the inte-
rior of a polling place. It therefore implicates our “ ‘forum
based’ approach for assessing restrictions that the gov-
ernment seeks to place on the use of its property.” Inter-
national Soc. for Krishna Consciousness, Inc. v. Lee, 505
U. S. 672, 678 (1992) (ISKCON). Generally speaking, our
cases recognize three types of government-controlled
spaces: traditional public forums, designated public fo-
rums, and nonpublic forums. In a traditional public fo-
rum—parks, streets, sidewalks, and the like—the gov-
ernment may impose reasonable time, place, and manner
restrictions on private speech, but restrictions based on
content must satisfy strict scrutiny, and those based on
viewpoint are prohibited. See Pleasant Grove City v.
Summum, 555 U. S. 460, 469 (2009). The same standards
apply in designated public forums—spaces that have “not
traditionally been regarded as a public forum” but which
the government has “intentionally opened up for that
purpose.” Id., at 469–470. In a nonpublic forum, on the
other hand—a space that “is not by tradition or designa-
tion a forum for public communication”—the government
has much more flexibility to craft rules limiting speech.
Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S.
37, 46 (1983). The government may reserve such a forum
“for its intended purposes, communicative or otherwise, as
long as the regulation on speech is reasonable and not an
effort to suppress expression merely because public offi-
8 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
cials oppose the speaker’s view.” Ibid.This Court employs a distinct standard of review to
assess speech restrictions in nonpublic forums because the
government, “no less than a private owner of property,”
retains the “power to preserve the property under its
control for the use to which it is lawfully dedicated.”
Adderley v. Florida, 385 U. S. 39, 47 (1966). “Nothing in
the Constitution requires the Government freely to grant
access to all who wish to exercise their right to free speech
on every type of Government property without regard to
the nature of the property or to the disruption that might
be caused by the speaker’s activities.” Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788,
799–800 (1985). Accordingly, our decisions have long
recognized that the government may impose some content-
based restrictions on speech in nonpublic forums, includ-
ing restrictions that exclude political advocates and forms
of political advocacy. See id., at 806–811; Greer v. Spock,
424 U. S. 828, 831–833, 838–839 (1976); Lehman v. Shaker
Heights, 418 U. S. 298, 303–304 (1974) (plurality opin-
ion); id., at 307–308 (Douglas, J., concurring in judgment).
A polling place in Minnesota qualifies as a nonpublic
forum. It is, at least on Election Day, government-
controlled property set aside for the sole purpose of voting.
The space is “a special enclave, subject to greater re-
striction.” ISKCON, 505 U. S., at 680. Rules strictly
govern who may be present, for what purpose, and for how
long. See Minn. Stat. §204C.06 (2014). And while the
four-Justice plurality in Burson and Justice Scalia’s con-
currence in the judgment parted ways over whether the
public sidewalks and streets surrounding a polling place
qualify as a nonpublic forum, neither opinion suggested
that the interior of the building was anything but. See
504 U. S., at 196–197, and n. 2 (plurality opinion); id., at
214–216 (opinion of Scalia, J.).
We therefore evaluate MVA’s First Amendment chal-
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
lenge under the nonpublic forum standard. The text of the
apparel ban makes no distinction based on the speaker’s
political persuasion, so MVA does not claim that the ban
discriminates on the basis of viewpoint on its face. The
question accordingly is whether Minnesota’s ban on politi-
cal apparel is “reasonable in light of the purpose served by
the forum”: voting. Cornelius, 473 U. S., at 806.
III
A
We first consider whether Minnesota is pursuing a
permissible objective in prohibiting voters from wearing
particular kinds of expressive apparel or accessories while
inside the polling place. The natural starting point for
evaluating a First Amendment challenge to such a re-
striction is this Court’s decision in Burson, which upheld a
Tennessee law imposing a 100-foot campaign-free zone
around polling place entrances. Under the Tennessee
law—much like Minnesota’s buffer-zone provision—no
person could solicit votes for or against a candidate, party,
or ballot measure, distribute campaign materials, or “dis-
play . . . campaign posters, signs or other campaign mate-
rials” within the restricted zone. 504 U. S., at 193–194
(plurality opinion). The plurality found that the law with-
stood even the strict scrutiny applicable to speech re-
strictions in traditional public forums. Id., at 211. In his
opinion concurring in the judgment, Justice Scalia argued
that the less rigorous “reasonableness” standard of review
should apply, and found the law “at least reasonable” in
light of the plurality’s analysis. Id., at 216.
That analysis emphasized the problems of fraud, voter
intimidation, confusion, and general disorder that had
plagued polling places in the past. See id., at 200–204
(plurality opinion). Against that historical backdrop, the
plurality and Justice Scalia upheld Tennessee’s determi-
nation, supported by overwhelming consensus among the
10 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
States and “common sense,” that a campaign-free zone
outside the polls was “necessary” to secure the advantages
of the secret ballot and protect the right to vote. Id., at
200, 206–208, 211. As the plurality explained, “[t]he State
of Tennessee has decided that [the] last 15 seconds before
its citizens enter the polling place should be their own, as
free from interference as possible.” Id., at 210. That was
not “an unconstitutional choice.” Ibid.MVA disputes the relevance of Burson to Minnesota’s
apparel ban. On MVA’s reading, Burson considered only
“active campaigning” outside the polling place by cam-
paign workers and others trying to engage voters ap-
proaching the polls. Brief for Petitioners 36–37. Minne-
sota’s law, by contrast, prohibits what MVA characterizes as
“passive, silent” self-expression by voters themselves when
voting. Reply Brief 17. MVA also points out that the
plurality focused on the extent to which the restricted zone
combated “voter intimidation and election fraud,” 504
U. S., at 208—concerns that, in MVA’s view, have little to
do with a prohibition on certain types of voter apparel.
Campaign buttons and apparel did come up in the Bur-
son briefing and argument, but neither the plurality nor
Justice Scalia expressly addressed such applications of the
law.1 Nor did either opinion specifically consider the
——————
1 The State of Tennessee represented that its prohibition on campaign
displays extended both to items of apparel and to voters. Tr. of Oral
Arg. in No. 90–1056, p. 33 (argument of Atty. Gen. Burson) (explaining
that the statute banned “[t]ee-shirts,” “campaign buttons,” and “hats”
because such items “implicate and invite the same problems,” and that
voters would be “asked to take campaign button[s] off as they go in”);
see Brief for State of Tennessee et al. as Amici Curiae 3, 28–30, and
n. 3 (making the same representation in the present case). The Burson
plaintiff also emphasized that the Tennessee law would cover apparel,
including apparel worn by voters, see Brief for Respondent in No. 90–
1056, p. 3; Tr. of Oral Arg. in No. 90–1056, p. 21, and Justice Stevens in
dissent referred to the application of the law to campaign buttons, see
Burson, 504 U. S., at 218–219, 224.
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
interior of the polling place as opposed to its environs, and
it is true that the plurality’s reasoning focused on cam-
paign activities of a sort not likely to occur in an area
where, for the most part, only voters are permitted while
voting. At the same time, Tennessee’s law swept broadly
to ban even the plain “display” of a campaign-related
message, and the Court upheld the law in full. The plural-
ity’s conclusion that the State was warranted in designat-
ing an area for the voters as “their own” as they enter the
polling place suggests an interest more significant, not
less, within that place. Id., at 210.
In any event, we see no basis for rejecting Minnesota’s
determination that some forms of advocacy should be
excluded from the polling place, to set it aside as “an
island of calm in which voters can peacefully contemplate
their choices.” Brief for Respondents 43. Casting a vote is
a weighty civic act, akin to a jury’s return of a verdict, or a
representative’s vote on a piece of legislation. It is a time
for choosing, not campaigning. The State may reasonably
decide that the interior of the polling place should reflect
that distinction.
To be sure, our decisions have noted the “nondisruptive”
nature of expressive apparel in more mundane settings.
Board of Airport Comm’rs of Los Angeles v. Jews for Jesus,
Inc., 482 U. S. 569, 576 (1987) (so characterizing “the
wearing of a T-shirt or button that contains a political
message” in an airport); Tinker v. Des Moines Independent
Community School Dist., 393 U. S. 503, 508 (1969) (stu-
dents wearing black armbands to protest the Vietnam War
engaged in “silent, passive expression of opinion, unac-
companied by any disorder or disturbance”). But those
observations do not speak to the unique context of a poll-
ing place on Election Day. Members of the public are
brought together at that place, at the end of what may
have been a divisive election season, to reach considered
decisions about their government and laws. The State
12 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
may reasonably take steps to ensure that partisan discord
not follow the voter up to the voting booth, and distract
from a sense of shared civic obligation at the moment
it counts the most. That interest may be thwarted by
displays that do not raise significant concerns in other
situations.
Other States can see the matter differently, and some
do.2 The majority, however, agree with Minnesota that at
least some kinds of campaign-related clothing and acces-
sories should stay outside. 3 That broadly shared judg-
ment is entitled to respect. Cf. Burson, 504 U. S., at 206(plurality opinion) (finding that a “widespread and time-
tested consensus” supported the constitutionality of cam-
paign buffer zones).
Thus, in light of the special purpose of the polling place
itself, Minnesota may choose to prohibit certain apparel
there because of the message it conveys, so that voters
may focus on the important decisions immediately at
hand.
B
But the State must draw a reasonable line. Although
there is no requirement of narrow tailoring in a nonpublic
forum, the State must be able to articulate some sensible
——————
2 See, e.g., Ala. Secretary of State, 2018 Alabama Voter Guide 14
(voters may wear “campaign buttons or T-shirts with political adver-
tisements”); 2018 Va. Acts ch. 700, §1 (prohibitions on exhibiting
campaign material “shall not be construed” to prohibit a voter “from
wearing a shirt, hat, or other apparel on which a candidate’s name or a
political slogan appears or from having a sticker or button attached to
his apparel on which a candidate’s name or a political slogan appears”);
R. I. Bd. of Elections, Rules and Regulations for Polling Place Conduct 3
(2016) (voters may “display or wear any campaign or political party
button, badge or other document or item designed or tending to aid,
injure or defeat any candidate for public office or any political party or
any question,” but they must “immediately exit the polling location
without unreasonable delay” after voting).
3 See Appendix, infra.
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
basis for distinguishing what may come in from what must
stay out. See Cornelius, 473 U. S., at 808–809. Here, the
unmoored use of the term “political” in the Minnesota law,
combined with haphazard interpretations the State has
provided in official guidance and representations to this
Court, cause Minnesota’s restriction to fail even this for-
giving test.
Again, the statute prohibits wearing a “political badge,
political button, or other political insignia.” It does not
define the term “political.” And the word can be expan-
sive. It can encompass anything “of or relating to govern-
ment, a government, or the conduct of governmental af-
fairs,” Webster’s Third New International Dictionary 1755
(2002), or anything “[o]f, relating to, or dealing with the
structure or affairs of government, politics, or the state,”
American Heritage Dictionary 1401 (3d ed. 1996). Under
a literal reading of those definitions, a button or T-shirt
merely imploring others to “Vote!” could qualify.
The State argues that the apparel ban should not be
read so broadly. According to the State, the statute does
not prohibit “any conceivably ‘political’ message” or cover
“all ‘political’ speech, broadly construed.” Brief for Re-
spondents 21, 23. Instead, the State interprets the ban to
proscribe “only words and symbols that an objectively
reasonable observer would perceive as conveying a mes-
sage about the electoral choices at issue in [the] polling
place.” Id., at 13; see id., at 19 (the ban “applies not to any
message regarding government or its affairs, but to mes-
sages relating to questions of governmental affairs facing
voters on a given election day”).
At the same time, the State argues that the category of
“political” apparel is not limited to campaign apparel.
After all, the reference to “campaign material” in the first
sentence of the statute—describing what one may not
“display” in the buffer zone as well as inside the polling
place—implies that the distinct term “political” should be
14 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
understood to cover a broader class of items. As the
State’s counsel explained to the Court, Minnesota’s law
“expand[s] the scope of what is prohibited from campaign
speech to additional political speech.” Tr. of Oral Arg. 50.
We consider a State’s “authoritative constructions” in
interpreting a state law. Forsyth County v. Nationalist
Movement, 505 U. S. 123, 131 (1992). But far from clarify-
ing the indeterminate scope of the political apparel provi-
sion, the State’s “electoral choices” construction introduces
confusing line-drawing problems. Cf. Jews for Jesus, 482
U. S., at 575–576 (a resolution banning all “First Amend-
ment activities” in an airport could not be saved by a
“murky” construction excluding “airport-related” activity).
For specific examples of what is banned under its
standard, the State points to the 2010 Election Day Pol-
icy—which it continues to hold out as authoritative guid-
ance regarding implementation of the statute. See Brief
for Respondents 22–23. The first three examples in the
Policy are clear enough: items displaying the name of a
political party, items displaying the name of a candidate,
and items demonstrating “support of or opposition to a
ballot question.” App. to Pet. for Cert. I–2.
But the next example—“[i]ssue oriented material de-
signed to influence or impact voting,” id., at I–2—raises
more questions than it answers. What qualifies as an
“issue”? The answer, as far as we can tell from the State’s
briefing and argument, is any subject on which a political
candidate or party has taken a stance. See Tr. of Oral
Arg. 37 (explaining that the “electoral choices” test looks
at the “issues that have been raised” in a campaign “that
are relevant to the election”). For instance, the Election
Day Policy specifically notes that the “Please I. D. Me”
buttons are prohibited. App. to Pet. for Cert. I–2. But a
voter identification requirement was not on the ballot in
2010, see Brief for Respondents 47, n. 24, so a Minnesotan
would have had no explicit “electoral choice” to make in
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
that respect. The buttons were nonetheless covered, the
State tells us, because the Republican candidates for
Governor and Secretary of State had staked out positions
on whether photo identification should be required. Ibid.;
see App. 58–60.4
A rule whose fair enforcement requires an election judge
to maintain a mental index of the platforms and positions
of every candidate and party on the ballot is not reason-
able. Candidates for statewide and federal office and major
political parties can be expected to take positions on a
wide array of subjects of local and national import. See,
e.g., Democratic Platform Committee, 2016 Democratic
Party Platform (approved July 2016) (stating positions on
over 90 issues); Republican Platform Committee, Republi-
can Platform 2016 (approved July 2016) (similar). Would
a “Support Our Troops” shirt be banned, if one of the
candidates or parties had expressed a view on military
funding or aid for veterans? What about a “#MeToo” shirt,
referencing the movement to increase awareness of sexual
harassment and assault? At oral argument, the State
indicated that the ban would cover such an item if a can-
didate had “brought up” the topic. Tr. of Oral Arg. 64–65.
The next broad category in the Election Day Policy—any
item “promoting a group with recognizable political
views,” App. to Pet. for Cert. I–2—makes matters worse.
The State construes the category as limited to groups with
“views” about “the issues confronting voters in a given
election.” Brief for Respondents 23. The State does not,
——————
4 The State also maintains that the “Please I. D. Me” buttons were
properly banned because the buttons were designed to confuse other
voters about whether they needed photo identification to vote. Brief for
Respondents 46–47. We do not doubt that the State may prohibit
messages intended to mislead voters about voting requirements and
procedures. But that interest does not align with the State’s construc-
tion of “political” to refer to messages “about the electoral choices at
issue in [the] polling place.” Id., at 13.
16 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
however, confine that category to groups that have en-
dorsed a candidate or taken a position on a ballot
question.
Any number of associations, educational institutions,
businesses, and religious organizations could have an
opinion on an “issue[ ] confronting voters in a given elec-
tion.” For instance, the American Civil Liberties Union,
the AARP, the World Wildlife Fund, and Ben & Jerry’s all
have stated positions on matters of public concern.5 If the
views of those groups align or conflict with the position of
a candidate or party on the ballot, does that mean that
their insignia are banned? See id., at 24, n. 15 (represent-
ing that “AFL–CIO or Chamber of Commerce apparel”
would be banned if those organizations “had objectively
recognizable views on an issue in the election at hand”).
Take another example: In the run-up to the 2012 election,
Presidential candidates of both major parties issued public
statements regarding the then-existing policy of the Boy
Scouts of America to exclude members on the basis of
sexual orientation.6 Should a Scout leader in 2012 stop-
ping to vote on his way to a troop meeting have been asked
——————
5 See, e.g., American Civil Liberties Union, Campaign for Smart Jus-
tice (2018), online at http://www.aclu.org/issues/mass-incarceration/
smart-justice/campaign-smart-justice (taking positions on criminal
justice reform) (all Internet materials as last visited June 11, 2018);
AARP, Government & Elections, online at https://www.aarp.org/
politics-society/government-elections/ (listing positions on Social Secu-
rity and health care); World Wildlife Fund, A Win on Capitol Hill
(Apr. 17, 2018), online at https://www.worldwildlife.org/stories/a-win-
on-capitol-hill (describing the organization’s position on federal funding
for international conservation programs); Ben & Jerry’s, Issues We
Care About, online at https://www.benjerry.com/values/issues-we-care-
about (sharing the corporation’s views on campaign finance reform,
international conflict, and civil rights).
6 C. Camia, Obama, Romney Opposed to Boy Scouts Ban on Gays,
USA Today OnPolitics (updated Aug. 08, 2012), online at
http: / / content.usatoday.com/communities/onpolitics/post/2012/08/barack-
obama-boy-scouts-gays-mitt-romney-/1.
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
to cover up his uniform?
The State emphasizes that the ban covers only apparel
promoting groups whose political positions are sufficiently
“well-known.” Tr. of Oral Arg. 37. But that requirement,
if anything, only increases the potential for erratic appli-
cation. Well known by whom? The State tells us the
lodestar is the “typical observer” of the item. Brief for
Respondents 21. But that measure may turn in signifi-
cant part on the background knowledge and media con-
sumption of the particular election judge applying it.
The State’s “electoral choices” standard, considered
together with the nonexclusive examples in the Election
Day Policy, poses riddles that even the State’s top lawyers
struggle to solve. A shirt declaring “All Lives Matter,” we
are told, could be “perceived” as political. Tr. of Oral Arg.
41. How about a shirt bearing the name of the National
Rifle Association? Definitely out. Id., at 39–40. That
said, a shirt displaying a rainbow flag could be worn “un-
less there was an issue on the ballot” that “related some-
how . . . to gay rights.” Id., at 38 (emphasis added). A
shirt simply displaying the text of the Second Amend-
ment? Prohibited. Id., at 40. But a shirt with the text of
the First Amendment? “It would be allowed.” Ibid.
“[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activ-
ity.” Ward v. Rock Against Racism, 491 U. S. 781, 794
(1989). But the State’s difficulties with its restriction go
beyond close calls on borderline or fanciful cases. And
that is a serious matter when the whole point of the exer-
cise is to prohibit the expression of political views.
It is “self-evident” that an indeterminate prohibition
carries with it “[t]he opportunity for abuse, especially
where [it] has received a virtually open-ended interpreta-
tion.” Jews for Jesus, 482 U. S., at 576; see Heffron v.
International Soc. for Krishna Consciousness, Inc., 452
U. S. 640, 649 (1981) (warning of the “more covert forms of
18 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
discrimination that may result when arbitrary discretion
is vested in some governmental authority”). Election
judges “have the authority to decide what is political”
when screening individuals at the entrance to the polls.
App. to Pet. for Cert. I–1. We do not doubt that the vast
majority of election judges strive to enforce the statute in
an evenhanded manner, nor that some degree of discretion
in this setting is necessary. But that discretion must be
guided by objective, workable standards. Without them,
an election judge’s own politics may shape his views on
what counts as “political.” And if voters experience or
witness episodes of unfair or inconsistent enforcement of
the ban, the State’s interest in maintaining a polling place
free of distraction and disruption would be undermined by
the very measure intended to further it.
That is not to say that Minnesota has set upon an im-
possible task. Other States have laws proscribing displays
(including apparel) in more lucid terms. See, e.g., Cal.
Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibit-
ing “the visible display . . . of information that advocates
for or against any candidate or measure,” including the
“display of a candidate’s name, likeness, or logo,” the
“display of a ballot measure’s number, title, subject, or
logo,” and “[b]uttons, hats,” or “shirts” containing such
information); Tex. Elec. Code Ann. §61.010(a) (West 2010)
(prohibiting the wearing of “a badge, insignia, emblem, or
other similar communicative device relating to a candi-
date, measure, or political party appearing on the ballot,
or to the conduct of the election”). We do not suggest that
such provisions set the outer limit of what a State may
proscribe, and do not pass on the constitutionality of laws
that are not before us. But we do hold that if a State
wishes to set its polling places apart as areas free of parti-
san discord, it must employ a more discernible approach
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
than the one Minnesota has offered here.7
* * *
Cases like this “present[ ] us with a particularly difficult
reconciliation: the accommodation of the right to engage in
political discourse with the right to vote.” Burson, 504
U. S., at 198 (plurality opinion). Minnesota, like other
States, has sought to strike the balance in a way that
affords the voter the opportunity to exercise his civic duty
in a setting removed from the clamor and din of election-
eering. While that choice is generally worthy of our re-
spect, Minnesota has not supported its good intentions
with a law capable of reasoned application.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
——————
7 The State argues that, in the event this Court concludes that there
is a “substantial question” about the proper interpretation of
§211B.11(1), we should postpone our decision and certify that issue to
the Minnesota Supreme Court. Brief for Respondents 57; see Minn.
Stat. §480.065(3) (2016). The dissent takes up this cause as well. See
post, at 1 (opinion of SOTOMAYOR, J.). 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. Minnesota’s request for certification comes
very late in the day: This litigation had been ongoing in the federal
courts for over seven years before the State made its certification
request in its merits brief before this Court. See Stenberg v. Carhart,
530 U. S. 914, 945 (2000) (noting, in denying certification, that the
State had never asked the lower federal courts to certify). And the
State has not offered sufficient reason to believe that certification
would obviate the need to address the constitutional question. Our
analysis today reflects the State’s proffered interpretation; nothing in
that analysis would change if the State’s interpretation were also
adopted by the Minnesota Supreme Court. Nor has the State (or the
dissent) suggested a viable alternative construction that the Minnesota
Supreme Court might adopt instead. See Brief for Respondents 56–58;
post, at 5–8.
20 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion
Appendix of the of
to opinion Court
the Court
APPENDIX
State Laws Prohibiting Accessories or Apparel in the
Polling Place*
Alaska Alaska Stat. §§15.15.170,
15.56.016(a)(2) (2016)
Arkansas Ark. Code Ann. §7–1–103(a)(9)
(Supp. 2017)
California Cal. Elec. Code Ann. §§319.5, 18370
(West Cum. Supp. 2018)
Colorado Colo. Rev. Stat.
§1–13–714(1) (2017)
Connecticut Conn. Gen. Stat. §9–236 (2017)
Delaware Del. Code Ann., Tit. 15,
§4942 (2015)
District of Columbia D. C. Code §1–1001.10(b)(2) (2016);
D. C. Munic. Regs., tit. 3, §707,
65 D. C. Reg. 4504 (2018)
Georgia Ga. Code Ann. §21–2–414(a)
(Supp. 2017)
Hawaii Haw. Rev. Stat. §11–132(d) (2009);
Haw. Admin. Rule §3–172–63(a)
(2017)
Illinois Ill. Comp. Stat., ch. 10,
§5/7–41(c) (West 2016)
Indiana Ind. Stat. Ann. §3–14–3–16
(Lexis 2011)
Kansas Kan. Stat. Ann. §25–2430(a)
(2006)
Louisiana La. Rev. Stat. Ann. §18:1462
(West Cum. Supp. 2018)
——————
* Based on statutory or regulatory language and official resources,
where available.
Cite as: 585 U. S. ____ (2018) 21
Opinion
Appendix of the of
to opinion Court
the Court
Massachusetts Mass. Gen. Laws Ann. ch. 54,
§65 (West 2007)
Michigan Mich. Comp. Laws Ann.
§168.744 (West Cum. Supp. 2018)
Minnesota Minn. Stat. §211B.11(1)
(Supp. 2017)
Mississippi Miss. Code Ann. §23–15–895
(Cum. Supp. 2017)
Missouri Mo. Rev. Stat. §115.637(18) (2006)
Montana Mont. Code Ann. §13–35–211
(2017)
Nebraska Neb. Rev. Stat. §32–1524(2)
(2016)
Nevada Nev. Rev. Stat. §293.740(2015)
New Hampshire N. H. Rev. Stat. Ann. §659:43(I)
(Cum. Supp. 2017)
New Jersey N. J. Stat. Ann. §19:34–19
(West 2014)
New Mexico N. M. Stat. Ann. §1–20–16 (2011)
New York N. Y. Elec. Law Ann. §8–104(1)
(West 2018)
North Dakota N. D. Cent. Code Ann.
§16.1–10–03 (2015)
Ohio Ohio Rev. Code Ann. §3501.35(A)
(Lexis Supp. 2018)
South Carolina S. C. Code Ann. §7–25–180
(2017 Cum. Supp.)
South Dakota S. D. Codified Laws §12–18–3
(Cum. Supp. 2017)
Tennessee Tenn. Code Ann. §2–7–111(b)
(2014)
Texas Tex. Elec. Code Ann.
§61.010(a) (West 2010)
Utah Utah Code §20A–3–501 (2017)
22 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion
Appendix of the of
to opinion Court
the Court
Vermont Vt. Stat. Ann., Tit. 17, §2508(a)(1)
(Cum. Supp. 2017)
Wisconsin Wis. Stat. §12.03 (2011–2012)
Cite as: 585 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1435
_________________
MINNESOTA VOTERS ALLIANCE, ET AL.,
PETITIONERS v. JOE MANSKY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 14, 2018]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
dissenting.
I agree with the Court that “[c]asting a vote is a weighty
civic act” and that “State[s] may reasonably take steps to
ensure that partisan discord not follow the voter up to the
voting booth,” including by “prohibit[ing] certain apparel
[in polling places] because of the message it conveys.”
Ante, at 11–12. I disagree, however, with the Court’s
decision to declare Minnesota’s political apparel ban un-
constitutional on its face because, in its view, the ban is
not “capable of reasoned application,” ante, at 19, when
the Court has not first afforded the Minnesota state courts
“ ‘a reasonable opportunity to pass upon’ ” and construe the
statute, Babbitt v. Farm Workers, 442 U. S. 289, 308
(1979). I would certify this case to the Minnesota Su-
preme Court for a definitive interpretation of the political
apparel ban under Minn. Stat. §211B.11(1) (Supp. 2017),
which likely would obviate the hypothetical line-drawing
problems that form the basis of the Court’s decision today.
I
As the Court acknowledges, Minnesota adopted its
political apparel ban late in the 19th century against the
backdrop of often “ ‘chaotic’ ” voting conditions where
“[c]rowds would gather to heckle and harass voters who
2 MINNESOTA VOTERS ALLIANCE v. MANSKY
SOTOMAYOR, J., dissenting
appeared to be supporting the other side.” Ante, at 2.
Polling places became “highly charged ethnic, religious,
and ideological battleground[s] in which individuals were
stereotyped as friend or foe,” even “on the basis of cloth-
ing.” R. Bensel, The American Ballot Box in the Mid-
Nineteenth Century 21 (2004). As a result, States began
adopting reforms “to address these vulnerabilities and
improve the reliability of elections.” Ante, at 3.
Minnesota thus enacted the political apparel ban at
issue in this case, which prohibits an individual from
wearing “[a] political badge, political button, or other
political insignia . . . at or about the polling place.”
§211B.11(1). Respondents maintain that this prohibition,
together with other election-day regulations, furthers
Minnesota’s compelling interests in (1) “maintaining
peace, order and decorum in the polling place,” (2) “pro-
tecting voters from confusion and undue influence such as
intimidation,” and (3) “preserving the integrity of its elec-
tion process.” Brief for Respondents 41 (internal quotation
marks and alterations omitted); see Burson v. Freeman,
504 U. S. 191, 193, 199 (1992) (plurality opinion) (recog-
nizing such interests as compelling).
The majority accords due respect to the weight of these
state interests in concluding that there is “no basis for
rejecting Minnesota’s determination that some forms of
advocacy should be excluded from the polling place, to set
it aside as ‘an island of calm in which voters can peacefully
contemplate their choices.’ ” Ante, at 11. Polling places
today may not much resemble the chaotic scenes of the
turn of the 20th century, but they remain vulnerable to
interpersonal conflicts and partisan efforts to influence
voters.* Even acts of interference that are “undetected or
——————
* See, e.g., J. Johnson, Fight Breaks Out at Polling Place (Nov. 8,
2016) (describing a fight in which a voter sprayed pepper spray at a
campaign volunteer who allegedly had been handing out campaign
Cite as: 585 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
less than blatant . . . may nonetheless drive the voter
away before remedial action can be taken.” Burson, 504
U. S., at 207; see also Brief for Campaign Legal Center as
Amicus Curiae 9 (noting that, “[a]bsent a ban on political
paraphernalia, [poll] workers might unintentionally exhibit
unconscious bias against voters who wear the ‘wrong’
paraphernalia”).
In holding that a polling place constitutes a nonpublic
forum and that a State must establish only that its limita-
tions on speech inside the polling place are reasonable, see
ante, at 8–9, the Court goes a long way in preserving
States’ discretion to determine what measures are appro-
priate to further important interests in maintaining order
and decorum, preventing confusion and intimidation, and
protecting the integrity of the voting process. The Court
errs, however, in declaring Minnesota’s political apparel
ban unconstitutional under that standard, without any
guidance from the State’s highest court on the proper
interpretation of that state law. Ante, at 13, 19, n. 7.
II
The Court invalidates Minnesota’s political apparel ban
——————
materials), http://www.wpbf.com/article/fight-breaks-out-at-polling-place/
8258506 (all Internet materials as last visited June 8, 2018); R. Reilly,
A Guy in a Trump Shirt Carried a Gun Outside of a Virginia Polling
Place. Authorities Say That’s Fine (Nov. 4, 2016) (describing a man
wearing a shirt bearing the name of a candidate and carrying a weapon
outside of a polling place), https://www.huffingtonpost.com/entry/trump-
supporter-gun-voter-intimidation-virginia_us_581cf16ee4b0aac624846eb5;
Houston Chronicle, Nov. 5, 2012, p. 2 (reporting that individuals
wearing shirts bearing the name of a racial equality organization
allegedly were “disruptive,” “took over” a polling place, and were
“electioneering and voicing support” for a particular candidate); Orlando
Sentinel, Nov. 8, 2006, p. A5 (reporting arrest of a poll worker who was
“charged with assault and interfering with an election after allegedly
choking a voter and pushing him out the door”); Orlando Sentinel, Mar.
2, 2005, p. B1 (reporting “[s]houting matches and rowdy behavior” and
“harass[ment] and intimidat[ion] at the polls”).
4 MINNESOTA VOTERS ALLIANCE v. MANSKY
SOTOMAYOR, J., dissenting
based on its inability to define the term “political” in
§211B.11(1), so as to discern “some sensible basis for
distinguishing what may come in from what must stay
out” of a polling place. Ante, at 12–13. The majority
believes that the law is not “capable of reasoned applica-
tion,” ante, at 19, but it reaches that conclusion without
taking the preferential step of first asking the state courts
to provide “an accurate picture of how, exactly, the statute
works,” Expressions Hair Design v. Schneiderman, 581
U. S. ___, ___ (2017) (SOTOMAYOR, J., concurring in judg-
ment) (slip op., at 5). It is a “cardinal principle” that,
“when confronting a challenge to the constitutionality of a
. . . statute,” courts “will first ascertain whether a con-
struction . . . is fairly possible that will contain the statute
within constitutional bounds,” and in the context of a
challenge to a state statute, federal courts should be par-
ticularly hesitant to speculate as to possible constructions
of the state law when “the state courts stand willing to
address questions of state law on certification.” Arizonans
for Official English v. Arizona, 520 U. S. 43, 78–79 (1997)
(internal quotation marks omitted); see Minn. Stat.
§480.065(3) (2016) (authorizing the Minnesota Supreme
Court to answer certified questions). Certification “save[s]
time, energy, and resources and helps build a cooperative
judicial federalism.” Lehman Brothers v. Schein, 416 U. S.
386, 391 (1974). Neither of the majority’s proffered rea-
sons for declining to certify this case justifies its holding.
First, the Court notes that respondents’ “request for
certification comes very late in the day,” as the litigation
already had been ongoing for more than seven years before
the request. Ante, at 19, n. 7. But certification is not an
argument subject to forfeiture by the parties. It is a tool of
the federal courts that serves to avoid “friction-generating
error” where a federal court attempts to construe a statute
“not yet reviewed by the State’s highest court.” Arizonans
for Official English, 520 U. S., at 79. This Court has
Cite as: 585 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
certified questions to a state court “sua sponte, even
though the parties had not sought such relief and even
though the district court and the court of appeals previ-
ously had resolved the disputed point of state law.” S.
Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmel-
farb, Supreme Court Practice §9.4, p. 611 (10th ed. 2013)
(citing Elkins v. Moreno, 435 U. S. 647, 660–663, 668–669
(1978)); see also Massachusetts v. Feeney, 429 U. S. 66(1976) (per curiam) (certifying a question to the Supreme
Judicial Court of the Commonwealth of Massachusetts “on
[the Court’s] own motion”). Respondents’ delay in asking
for certification does nothing to alter this Court’s respon-
sibility as a matter of state-federal comity to give due
deference to the state courts in interpreting their own
laws.
Second, the majority maintains that respondents have
“not offered sufficient reason to believe that certification
would obviate the need to address the constitutional ques-
tion,” as “nothing in [its] analysis would change if [re-
spondents’] interpretation were also adopted by the Minne-
sota Supreme Court.” Ante, at 19, n. 7. The majority
also relies on its view that respondents have not “suggested
a viable alternative construction that the Minnesota Su-
preme Court might adopt instead.” Ibid. To presume that
the Minnesota Supreme Court would adopt respondents’
interpretation wholesale or that it could not provide a
construction of its own that is “capable of reasoned appli-
cation,” ante, at 19, however, reflects precisely the “gratui-
tous” “ ‘[s]peculation . . . about the meaning of a state
statute’ ” that this Court has discouraged, Arizonans for
Official English, 520 U. S., at 79.
It is at least “fairly possible” that the state court could
“ascertain . . . a construction . . . that will contain the
statute within constitutional bounds.” Id., at 78 (internal
quotation marks omitted). Ultimately, the issue comes
down to the meaning of the adjective “political,” as used to
6 MINNESOTA VOTERS ALLIANCE v. MANSKY
SOTOMAYOR, J., dissenting
describe what constitutes a “political badge, political
button, or other political insignia.” §211B.11(1). The word
“political” is, of course, not inherently incapable of defini-
tion. This Court elsewhere has encountered little difficulty
discerning its meaning in the context of statutes subject to
First Amendment challenges. See, e.g., Civil Service
Comm’n v. Letter Carriers, 413 U. S. 548, 550–551 (1973)
(rejecting First Amendment overbreadth and vagueness
challenge to §9(a) of the Hatch Act, then codified at 5
U. S. C. §7324(a)(2), which prohibited federal employees
from taking “ ‘an active part in political management or in
political campaigns’ ”); Broadrick v. Oklahoma, 413 U. S.
601, 602 (1973) (rejecting First Amendment overbreadth
and vagueness challenge to a similar Oklahoma law that
“restricts the political activities of the State’s classified
civil servants”).
Even here, the majority recognizes a substantial amount
of speech that “clear[ly]” qualifies as “political,” such as
“items displaying the name of a political party, items
displaying the name of a candidate, and items demonstrat-
ing support of or opposition to a ballot question.” Ante, at
14 (internal quotation marks omitted). The fact that the
majority has some difficulty deciphering guidance to
§211B.11(1) that also proscribes “[i]ssue oriented material
designed to influence or impact voting” and “[m]aterial
promoting a group with recognizable political views,” App.
to Pet. for Cert. I–2; see ante, at 14–17, does not mean
that the statute as a whole is not subject to a construction
that falls within constitutional bounds. As this Court has
made clear in the context of the First Amendment over-
breadth doctrine, the “mere fact” that petitioners “can
conceive of some impermissible applications of [the] stat-
ute is not sufficient to render it” unconstitutional. United
States v. Williams, 553 U. S. 285, 303 (2008) (internal
quotation marks omitted). That is especially so where the
state court is capable of clarifying the boundaries of state
Cite as: 585 U. S. ____ (2018) 7
SOTOMAYOR, J., dissenting
law in a manner that would permit the Court to engage in
a comprehensive constitutional analysis. See, e.g., Virginia
v. American Booksellers Assn., Inc., 484 U. S. 383 (1988)
(certifying questions to the Virginia Supreme Court for
clarification as to whether a state statute was readily
susceptible to a narrowing construction that would not
violate the First Amendment); Commonwealth v. Ameri-
can Booksellers Assn., Inc., 236 Va. 168, 372 S. E. 2d 618(1988) (responding to certification with such a narrowing
construction).
Furthermore, the Court also should consider the history
of Minnesota’s “implementation” of the statute in evaluat-
ing the facial challenge here. Forsyth County v. National-
ist Movement, 505 U. S. 123, 131 (1992). That history
offers some assurance that the statute has not been inter-
preted 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 re-
spondents maintain that no one has been referred for
prosecution for violating the provision. See Brief for Re-
spondents 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 Dis-
trict Court and the Court of Appeals for the Eighth Cir-
cuit. 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); Minne-
sota 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 histori-
cal 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.’ ” Ante, at 17.
8 MINNESOTA VOTERS ALLIANCE v. MANSKY
SOTOMAYOR, J., dissenting
III
Especially where there are undisputedly many constitu-
tional applications of a state law that further weighty
state interests, the Court should be wary of invalidating a
law without giving the State’s highest court an opportunity
to pass upon it. See Babbitt, 442 U. S., at 309; Arizonans
for Official English, 520 U. S., at 79. Because the Court
declines to take the obvious step of certification in this
case, I respectfully dissent.