My speech to the Federalist Society at Santa Clara School of Law

Yesterday, I spoke about Minnesota Voters Alliance v. Mansky to the student chapter of the Federalist Society at Santa Clara University School of Law. Dean Brad Joondeph provided commentary. Here’s a transcript of my remarks:

Thank you for hosting me today. A lot of speakers like to say they have fond memories of wherever they’re speaking. I’m not going to say the same thing. I took the California Bar not too far from here by Levi Stadium. Now I suspect many of you will be taking the bar exam in the next few months, so to thank you for coming to my event, I just wanted to offer a quick bit of advice on bar prep. I’ve taken and passed two bar exams: Texas and California, and my main takeaway is that the bar exam is actually quite different from a law school exam.

In my experience, law school exams are a little bit more like being a lawyer in the sense that it’s analytical. The classic example is how you interpret a law that says no vehicles in the park. That probably prohibits mini-vans; it probably allows toy cars. You’ll be given a hypo somewhere in the middle and asked to discuss. Does a bicycle run afoul of the law? What about an ATV? The bar exam has some of that, but there’s a lot more about knowing the law. You’re learning about a bunch of topics in just a couple of months, so it’s really important that you don’t fall behind and it’s probably a good idea stay ahead. Because if law school is like trying to fit a square peg into a round hole, the bar is like fitting ten thousand square pegs in ten thousand square holes.

Now, what kind of work do you want to do after you’re officially a lawyer? A part of the reason I’m here today is to encourage you to apply to Pacific Legal Foundation at some point, either right after you graduate or maybe 5-10 years down the road. At PLF, we litigate for individual liberty in courts all over the United States. Our recent track record has been particularly good. We’re getting a case up to the Supreme Court just about every term, and we have nine wins in our last ten cases before the Supreme Court.

We get our cases in a few different ways, but PLF really encourages its attorneys to find cases that are interesting to the attorney and fit within PLF’s litigation objectives. One method I use is just going online and looking for interesting articles in the news. A lot of times I’ll read a story and think, well how could that happen? But then I’ll investigate a little bit more and read the precedent and, for better or for worse, there’s not much of legal challenge there. This case was a little different. After I heard about this story, I went on Westlaw and read the opinion. What’s interesting about this case is that there were several decisions in the lower courts, so I took some time to read all of them and the cases they cited. After reading all that, I became convinced that this was even a better First Amendment case than I’d expected.

So let me just talk a little bit about our clients. Even in a facial challenge, we need our clients to step up and file the lawsuit and tell a court what happened to them.

Our lead plaintiff Andy Cilek is the president of the Minnesota Voters Alliance. On Election Day 2010, he wore a Tea Party t-shirt and a button by a now-defunct group called Election Integrity Watch to the polling place. The poll worker said he had to cover up or take off his t-shirt, which had a small Tea Party logo next to a picture of the Gadsden Flag. The poll worker stopped him from voting twice. The third time, Andy was allowed to vote after his name and address was taken down for possible prosecution.

Why did the poll worker stop Andy from voting? Apparently Minnesota has a law that makes it illegal for voters to wear political badges, buttons, or other insignia at the polling place. It’s a ban on political apparel. Now what kind apparel is political apparel? Even poll workers, such as our client Sue Jeffers, were asking those question. To clarify the meaning of “political,” Joe Mansky, a county election manager, promulgated an Election Day Policy, which was distributed statewide. The policy says that political apparel ban forbids voters from wearing t-shirts or buttons featuring the logo of a group with recognizable political views and it names “the Tea Party,, and so on.” Now I think the question on everyone’s mind is what is included in “so on?” Which other groups have recognizable political views? The government has said that apparel featuring the logo of the Chamber of Commerce or the AFL-CIO could be banned. And as one judge in the Eighth Circuit noted, the plain logic of the statute also allows the government to prosecute voters just for wearing a t-shirt featuring a logo of the NAACP, the NRA, Veterans of Foreign Wars and the countless other groups that have in some way been involved in the political process. My favorite example is something we found in the record of our client Sue Jeffers, a poll worker who called Joe Mansky and asked him if someone wearing a Minnesota Vikings jersey to the polling place could be prosecuted. Mansky said that if there were an issue about stadium finance on the ballot, then yes.

You have similar laws like this all over the country. We’ve found stories of students who were questioned for wearing Massachusetts Institute of Technology sweatshirts that said “MIT” in 2012 because poll workers thought the students were campaigning for Mitt Romney. There’s a story of a voter who almost lost her right to vote in 2008 just for wearing an Alaska souvenir shirt with a picture of a moose head and fishing poles — because one poll worker said the shirt could be misconstrued as support for Sarah Palin. There’s also a story of a voter in Arkansas who was told that she couldn’t vote in the 2016 election wearing an I miss Bill t-shirt even though Bill Clinton had not been a candidate for the last 20 years.

So I was certainly interested in petitioning the Court. But we had a few different options on how we wanted to petition the Court. We could petition on the as-applied claim, which says the political apparel ban is unconstitutional as applied to Andy’s Tea Party apparel or we could petition on the facial claim which says that the statute as a whole is invalid because the government is prohibiting a lot more speech than it legitimately could under the First Amendment. At the end of the day, we just felt like the facial claim was a better claim and had a better chance to go to the Supreme Court. So to go back my earlier example the “no vehicles in the park” law. Let’s pretend the overbreadth doctrine goes beyond the First Amendment context. If the government in that case enacted a Vehicles in the Park Policy that banned toy cars, shopping carts, and the like, you might have a claim that the law is overbroad. Because even if the government had legitimate reasons to ban actual vehicles in the park, one might think those reasons can’t sustain a ban on toy cars and shopping carts. That’s our argument: even if the government could constitutionally ban Tea Party t-shirts or buttons that said Please I.D. Me, it cannot ban all voters from wearing all apparel featuring recognizable views: from Chamber of Commerce to the AFL-CIO even to Collin Kaepernick Jerseys or shirts saying #MeToo. That’s why a really ideologically diverse range of organizations from the Cato Institute to the ACLU have filed amicus briefs in our support.

As to the merits, it probably won’t surprise you that I think we have the better of the arguments. Before I started law school, I thought law was mostly about finding new cases, and saying aha but what about this case? But during law school and particularly after practicing for a few years, I’ve really come to the realization that most actual cases come down to how you interpret just a couple of precedents. I call them the passim precedents, because if you look in the briefs, they’ll have passim next to the citation in the Table of Authorities.  So if you’re working on a Commerce Clause case, you would probably have a debate about how United States v. Lopez applies to your case. If you’re working on an affirmative action case, you’d talk about cases like Grutter, Gratz, and Fisher apply to your case.

The case we use a lot is the Jews for Jesus case. There, a unanimous Supreme Court invalidated an ordinance banning all First Amendment activities at an airport. I think that case is particularly helpful because it actually says what I think is a pretty unremarkable proposition. So the government relies a lot on forum analysis in this case — and forum analysis is just an analytical tool the Court uses to assess restrictions on speech on public property. It recognizes that people have a little bit more latitude to speak at a park, while the government has a little bit more leeway to restrict speech in a public school. But I think it’s pretty intuitive that some restrictions on speech go so far that they would be unconstitutional regardless of the forum. That’s exactly what the Court held in Jews for Jesus; Because the ordinance created a speech-free zone, the Court invalidated the ordinance as overbroad without conducting forum analysis. Indeed, it held in a subsequent case that the airport was a nonpublic forum. Now political speech is at the core of protected First Amendment activities and the government here has essentially created a political speech-free zone. So the Court could also strike down this law without conducting overbreadth analysis.

The other side relies on another Supreme Court case: Burson v. Freeman. In Burson, the Supreme Court, in a 5-3 opinion, upheld a Tennessee law that prohibits the display and distribution of campaign materials within 100 feet of a polling place. The Tennessee law, in the Court’s view, furthered an important governmental interest in preventing voter intimidation and election fraud. Now the Burson plurality really isn’t clear about the scope of its holding, so there’s a little bit of debate between our side and the government on what Burson actually holds. We think that Burson came out the way it did precisely because it involved a law that, in large part, prohibited active solicitation. If the statute in Burson dealt only with wearing a t-shirt or wearing a button, I think it’s very likely that the outcome would’ve been different. But even on a reading most charitable to the government, Burson was still limited to express advocacy such as “vote for Bush” or “vote for Gore.” That’s a narrower and clearer prohibition on speech than the one promulgated by Minnesota here.

Now a bit about the argument. After the petition was granted, we brought on a more experienced attorney to write the merits brief and argue the case. So I didn’t get to argue though I hope to argue before the Supreme Court one day soon. But I was second-chair at the argument, and I think the justices asked pretty hard questions for both sides.

On our end, the toughest questions in my view came from the Justices who wanted us to draw a clear line on what could be prohibited at the polling place. And I think the answer to that is just to say that Burson is that line. Subsequent cases have referred to the law in Burson as a prophylactic measure to protect the right to vote. So if that’s close the outer bounds of the kind of speech that the government can restrict, it stands to reason that the government may not impose the much broader restrictions at issue here. Because even under the reading of Burson most generous to the government, Burson dealt solely with campaign apparel whereas this case deals with political apparel.

Another interesting question came from Justice Kennedy, and that is why should there be free speech in the polling place at all? At first you might be taken aback by a question like that from a justice who many view as perhaps the most ardent defender of free speech on the Court today. But the question parallels the arguments made by Rick Hasen of UC Irvine, the Brennan Center, and even Justice Kennedy himself in Burson that the right to free speech is sometimes in tension with the right to vote. But I think even to the extent that was the case in Burson, it’s not the case here. Because this law is broader, the relationship between the goals in prevent voter intimidation and prohibiting something like a Minnesota Viking jersey is far more attenuated. In fact, the right to free speech and the right to vote are on the same side in this case because of the chilling effect of the law. Voters have a pretty good idea of what is and what isn’t prohibited if the statute just said you can’t wear “vote for Bush” or “vote for Gore” t-shirts to the polling place. Yet they don’t know and can’t know what is and isn’t prohibited under Minnesota’s statute banning the apparel endorsing any group with a recognizable political view. In a First Amendment terms, that’s called a chilling effect on expression. And it’s not a stretch to say that this chilling effect probably deters some people from voting at all.

So at the Supreme Court, the government brought on a couple of veteran Supreme Court litigators to help with their case, and they did exactly what I would’ve done if I were arguing this case for the other side. They really tried to narrow the scope of the statute. Previously, they had said they wanted to create a polling place in which the only speech allowed was voting, but I think they recognized that that conception of the polling place could not be squared with the First Amendment. So now they’re saying that apparel is only political if a reasonable observer would view it as political.

There are several problems with that argument. For one, I think the chilling effect of the law is going to be exactly the same under their new test: everyone thinks they’re the reasonable observer, but it’s going to be hard for voters to make predictions on what the poll worker would view as political or not. Because there are different poll workers enforcing this broad statute, I think many of them will have a hard time applying the law in a viewpoint-neutral way. That was really revealed at oral argument when the government’s attorney said that a voter wearing a t-shirt with the text of the First Amendment would not run afoul of the law, but a voter wearing a t-shirt with the text of the Second Amendment could be prosecuted.

Now we wait for a decision. There are several big cases at the Supreme Court this term, and it seems that the Court is slightly behind their normal pace. I think we’ll get a decision around early June. I always hesitate to predict what the Court will do, not because I don’t like to, but because I’m really not very good at it. We’ll just have to see how the Court rules in Minnesota Voters Alliance v. Mansky when the opinion comes out — and perhaps the 1Ls and 2Ls in the audience will invite me back for a follow-up talk. Thanks for indulging me today, and with that, I’ll take any questions.



3 thoughts on “My speech to the Federalist Society at Santa Clara School of Law

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