Court Revives Fight Over Tea Partiers’ Poll Attire

     ST. LOUIS (CN) – Tea Party supporters will get another chance to fight Minnesota’s ban on buttons and other political attire at polling places, the 8th Circuit ruled.
     Election Integrity Watch, a group made up of the Minnesota Northstar Tea Party Patriots, Minnesota Majority and Minnesota Voters Alliance, had filed suit along with four members in advance of the November 2010 election.
     Supporters of the groups, none of which is a political party, sought to attend the polls wearing buttons that said “Please I.D. Me,” a reference to their controversial bid to have all voters present photo identification to cast a ballot. Supporters also sought to wear hats and T-shirts featuring the Tea Party and slogans such as: “Don’t tread on me.”
     They said their right to wear such materials would be hampered by Section 211B.11 of Minnesota law, which makes it a petty misdemeanor to wear a “political badge, political button, or other political insignia” at or about the polling place on primary or election day.”
     Failing to win a temporary restraining order in Minneapolis, at least three Election Integrity Watch members said their First Amendment rights were trampled at the polls.
     Election judges allegedly asked one supporter to cover or remove his T-shirt, while another had his name and address recorded for refusing to comply with similar orders. The third supporter allegedly faced a delay of several hours to vote.
     These claims failed to sway a federal judge, however, ultimately dismissing the claims against various county election officials and Secretary of State Mark Ritchie.
     The 8th Circuit mostly affirmed dismissal last week, saying the Tea Party supporters had failed to present a facial claim against the ban under the First Amendment.
     “Even if Minnesota acted unreasonably in applying its statute to some material, the complaint does not allege that there were a ‘substantial number’ of such unreasonable applications in relation to the statute’s reasonable applications,” Judge Duane Benton wrote for a three-judge panel.
     Finding that polling sites are “a designated public forum,” the court further concluded that the ban is viewpoint neutral and “the state has a legitimate interest in ‘maintain[ing] peace, order and decorum’ in the polling place.”
     “A state also has a compelling interest in ‘protecting voters from confusion and undue influence’ and ‘preserving the integrity of its election process,'” Benton added.
     Tea Party supporters had also failed to allege that Minnesota officials enforced an otherwise neutral statute and policy selectively, in violation of their equal protection rights, according to the ruling.
     “The complaint alleges only that the policy’s ‘standardless discretion’ resulted in selective enforcement,” Benton wrote. “The policy’s delegation of discretion to election judges did not, without more, cause selective enforcement.”
     One issue does merit further analysis on remand, however, according to the ruling, which chided the lower court for considering “matters outside the pleadings” in deciding whether the statute and policy had been applied reasonably.
     “For example, the district court found that ‘[t]he language on the [“Please I.D. Me”] button intimates that government-issued identification should be – or is – required in order to vote in Minnesota. 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,'” Benton wrote. “The complaint does not include these facts; the district court ‘must have been referencing argument and evidence from some source outside the four corners of the complaint.'”
     The appellate judges said the dismissal motion should have been evaluated under Rule 56.
     “This court reverses and remands the as-applied First Amendment claim to the District Court so that it may ‘(1) properly analyze the motion as a request for summary judgment through application of the standards articulated in Rule 56 and (2) give the parties sufficient opportunity to create an acceptable record,'” Benton wrote.
     In a brief partial dissent, Judge Bobby Shepherd said he would have revived the facial challenge to the ban.
     “I fail to see how this broad restriction, which prohibits a voter from wearing any political emblem, insignia, or slogan that is unrelated to an issue or candidate on the ballot, would rationally and reasonably help maintain the ‘peace, order and decorum’ of the polling place, ‘protect[] voters from confusion or undue influence,’ or ‘preserv[e] the integrity of [Minnesota’s] election process,'” Shepherd wrote.

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