Courthouse Steps: Minnesota Voters Alliance v. Mansky

Free Speech & Election Law Practice Group Teleforum

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Most states have laws that prohibit electioneering within polling places on election day, and the Supreme Court has upheld buffer zones that extend this prohibition to areas immediately surrounding polling places. But Minnesota law goes beyond electioneering and prohibits wearing “a political badge, political button, or other political insignia . . . at or about the polling place[.]” This includes Gadsden flag t-shirts, buttons demanding to be asked for voter identification, or apparel referencing an organization such as the AFL-CIO. In Minnesota Voters Alliance v. Mansky, the Court will rule whether the law is facially overbroad under the First Amendment.

Featuring:

Mr. Stephen Klein, Attorney, Pillar of Law Institute

 

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Event Transcript

Dean Reuter:                   Welcome to Federal Society Practice Groups Podcast. The following podcast, hosted by the Federal Society's free speech and election law practice group was recorded on Wednesday, February 28th, 2018, during a live [teleforum 00:00:11] conference call, held exclusively for Federal Society members.

Dean Reuter:                   Welcome to the special courthouse sets edition of the Federal Society's Practice Group teleforum conference call, as today we discuss the oral argument in this morning's supreme court Minnesota Voters Alliance Versus Mansky case. I'm Dean Reuter, General Council Vice President and Director of Practice Groups here at the Federal Society. Very pleased to welcome a return guest to teleforum today. Please note that all expressions of opinion are those of that guest for today's call. Also, this call's being recorded for use as a podcast in the future, and will likely be transcribed. We welcome back Mr. Stephen Klein, he's an attorney at the Pillar of Law Institute, and perhaps most importantly he attended oral argument this morning, so we could all gain his insights into what transpired. With that, Stephen Klein, the floor is yours.

Stephen Klein:                 Thanks a lot, Dean. Well, it was a pretty exciting morning at the Supreme Court. This case, Minnesota Voters Alliance versus Mansky is thought to answer the question of whether a provision of Minnesota law is unconstitutionally over broad under the first amendment, and it's a fairly long statute, but the Voters Alliance is only challenging one sentence of it, which prohibits a political badge, political button, or other political insignia from being worn at or about the polling on primary or election day. What's looming in the background of this case is a case from the 1990s, [Burson 00:01:39] versus Freeman, which certainly came up a lot during arguments today. The ruling upheld a 100 foot buffer zone around polling places against electioneering, though that did not address the polling place itself, as this case does. It's generally been assumed in lower courts and in the eighth circuit in this case, that if the buffer zone is legitimate, surely for whatever reason, a ban inside the polling place must be legitimate as well. Of course electioneering, the idea you generally understood to be efforts to get people to vote for or against candidates, or for or against something that's actually on the ballot is a more narrowly defined term than just the term political. And so this ban has gone far beyond that.

Stephen Klein:                 There's some tension, whether the number of states that have similar bans, broad bans, like Minnesota's, whether it's nine states or eleven states, we heard two different answers this morning from parties, but nevertheless it's certainly very broad, but the question is whether it's unconstitutionally over broad. Certainly want to give credit to the Pacific Legal Foundation for joining his case at the cert stage, and successfully getting cert, and I think briefing it quite well on behalf of the Minnesota Voters Alliance, and certainly up against a long number of attorneys on behalf of various respondents.

Stephen Klein:                 So going into it, it certainly was a very active panel, everybody was ... Justice Thomas was the typical exception, but otherwise having a lot of participation from the justices, and hitting both sides really, really hard. And it's interesting because when you start to think of what does political mean, well, at first going in, throughout the history of this case, it's basically leading to bans of not just attire that might say, 'Vote For', 'Vote Against', Hillary Clinton for example, or 'I'm With Her', or some slogan unequivocally tied to a campaign, maybe even 'Make America Great Again', and then we start to move into something like a political organization, so wearing NRA attire, or MoveOn.org, or things of that nature. And a lot of those examples came up, that what point, and what is the actual limiting principle here? Interestingly, even under the current doctrine of electioneering, something like 'Make America Great Again', which is still being thrown around even now, well outside of Donald Trump's election, whether that really ties into an electioneering style provision.

Stephen Klein:                 So it's certainly a ... when it came to the justices, many of them, particularly Justice Kennedy, and Justice Alito, and Roberts, are really seeking an articulation of that limiting principle, and it seemed that David Breemer, arguing for MVA was much more on the side hitting, well, listen, under unconstitutional over breadth what this law simply does is go too far, and he seemed to go back to that and really fixate on that, rather than going back and saying, it's the job of the Voters Alliance to start drawing a limiting principle, particularly in light of the facial challenge. The idea, and this came up in a little bit of briefing, and there were some arguments in the briefing, this idea that, well, we're talking about attire here, so we want to view this as a passive speech, which can also be a potential limiting principle. The idea that you're just wearing something, doesn't really go into the area of electioneering, as in the case of Burson versus Freeman, where you have somebody actually in that buffer zone making an active effort to engage people who are trying to go vote. Justice Gorsuch shot that down pretty hard and pretty early on, so we didn't hear much of that raised after that. But basically saying that that was a bad idea, and compared it to some criminal laws where the similar kind of distinctions haven't gone over very well.

Stephen Klein:                 I certainly want to add, it was interesting to me that a piece of this case that got dropped off somewhere along the way, and by the way, another credit to all counsels involved in this case, because it does originate from 2010, so we're going on it's eighth birthday here before it finally got to the United States Supreme Court, so that's obviously a marathon of an effort, and much credit to everybody involved, but a piece of this case that was dropped off somewhere along the way, was the part of the facial challenge. The respondents really hit it hard in their briefing, and this was the concept that, I'm not necessarily sure if it was the Voters Alliance, but one of the plaintiffs had a effort where they were wearing buttons that said, 'Please ID Me'. So this idea of course, and the idea of supporting voters ID efforts. Along with these buttons, some also displayed their ID while checking in at a polling place, and this was part of a subtle effort to convince voters around them, other people who were in line, that it was required to display ID under the law, when under Minnesota law that is not actually the case.

Stephen Klein:                 So the facts certainly appear heated, certainly appear tied to the voter ID debate, I regret I'm not intimately familiar with everything that happened in that case, but Mr. Breemer, again arguing for MVA, pretty unequivocally dismissed the button itself as something that could ... excuse me, he basically accepted that just the button itself could be banned by not necessarily the provision at issue, but by anti-deception, or anti-fraud provisions, that are also elsewhere in Minnesota law. That kind of surprised me, that even the button, just that button itself just 'Please ID Me', can be sort of prophylactically banned even under other laws. And that also led to an interesting question, a question that I wish had been brought up today, but was not. I'm genuinely curious if just the displaying of an ID in the polling place could actually be banned as well.

Stephen Klein:                 But nevertheless I do certainly credit ... Mr. Breemer, certainly bringing up, under a pretty intensive questioning, particularly a lot of skepticism on finding the right limiting principle, was really Justice Alito stepping in, and I think doing the best of going through the absurdities, when oral argument shifted over, and regretfully I'm unsure if, I believe Daniel [Rogan 00:08:33] of the [Hanneken 00:08:34] Counties Attorneys Office was, he's Counsel of record for the respondents, I'm not entirely sure if he was arguing on their behalf, but the respondents really took a pretty heavy shellacking themselves, and they've backed off a bit. I think that's important to note, that throughout this case, and certainly the opinions I've read, that the breadth of this was very apparent, and the idea that, well, yeah, if it has any kind of political attire, NRA or ... the like, then it can be banned. Now we have apparently some kind of limiting principle perhaps in the instructions that are being given out to Minnesota poll workers. But the idea that it must be understood as relating to an election, and that it must be well known, Justice Alito really shot that down, saying that actually makes that worse.

Stephen Klein:                 One point that was interesting to kind of show that when you start getting into different ideas of what's well known, is that Justice Alito brought up that, would it be okay to wear rainbow flag, and respondents said that, well, that would be permissible, as long as gay rights wasn't an issue on the ballot. Notably, minutes went by, and later on Justice Breyer, perhaps just to flip, but sort of a telling flip, started talking about, well, we've heard about the Rainbow Coalition, and of course the Rainbow Coalition is I think long defunct and I think really didn't actually have anything to do with gay rights, that was more about minority rights, so you can see the confusion itself was certainly on display a little bit in the argument as well.

Stephen Klein:                 Particularly what probably put the respondents in a corner was when you start having, and I would urge everyone to listen to oral argument once it becomes available, because I think it was certainly worthwhile, but I also might have to re-listen to it myself, because there's a lot of back and forth, and sometimes it got a little bit confusing. But the point is that at one point, for example, the NRA, which is probably well known and established and has plays in pretty much every election, well, that's going to be banned, but what if somebody showed up with something like, 'Parkland Strong', a button saying that, which of course would reference the recent mass shooting in Florida, and therefore might reference support for gun control measures. So that starts heading down the path, and they didn't get too far into this into detail here, but I think that sort of inevitably leads that even if you're going to go into a forum analysis here, the idea that, well, this is a non public forum, and therefore as long as there's no viewpoint discrimination, we can pretty much censor anything, under current doctrine. I think that kind of gives the lie to that, because I think that over broad laws, even in the sense of non public forums can go ahead and create a de facto viewpoint discrimination. I think that distinction between the NRA and a hypothetical like, 'Parkland Strong' really shows it's all but inevitable.

Stephen Klein:                 I think, certainly my other big impression, and maybe this could have been hammered a little harder, and I think to her credit it was Justice Kagan who I think had a little lighthearted criticism of this idea, as the polling place as a sacred ground. And that term wasn't necessarily used, but there's almost, and I've run into this in some of my own litigation, a sort of strange reverence given to the polling place. And that's great, I'm glad that we as Americans, we should jealously guard our right to vote, and we should certainly have orderly polling places, but at the same time don't treat it like people walk in there and have this ... and this certainly was used, this idea that now we can suspend all politics, and that voters will take that time, that moment, and they will pause and reflect before pulling that lever, or filling in that bubble, or hitting the button on the electronic voting machine. I certainly have not worked the polls in my life as a poll worker, but I have voted many times, and the polling place, I'm curious what polling place they're talking about, because I have certainly never been to one. It's usually a gymnasium, and people are bustling in and out, and just want to get their vote done and get out of there.

Stephen Klein:                 So again, with all due respect, I think there are ample ways, and already ample ways, in existence that the polling place can certainly be regulated without quite elevating it to a monastery. But that came up, and I think that was ... credit to Justice Kagan for kind of lampooning that at least a little bit.

Stephen Klein:                 I think the thing that I would say in closing is there was certainly on the part of respondents a fairly chilling conclusion. Justice Kagan I think jokingly said, after pinging the respondents a little bit on points that she jokingly said, maybe you should make the law broader. And to which, almost hook, line, and sinker, the respondents replied, yeah, well, we could make it broader. And that kind of goes back to my other point, where does this end? So overall, difficult, and I think there is a lot of reticence to necessarily revisit Burson. Again, even though we're inside a polling place, now, we're not dealing with buffer zone, that was floating over this.

Stephen Klein:                 There's an effort here to find the limiting principle, and frankly outside of Justice Alito, and I know it's never a good idea to make bets following oral argument, but I would be certainly thinking outside of Justice Alito I had no real clear impressions where anyone was standing, and I certainly think that this is going to be potentially, and it's worth pointing out the Burson V. Freeman was a plurality opinion, there were a lot of different concurrences there, and a dissent, so I think ghat's certainly possible as well, that there's going to be a lot of differing perspectives on just how much reverence we're going to give the polling place, and what reasoning is going to, which first amendment doctrine is most important to apply to the law in question. So certainly at this time, Dean, I think I'm ready to turn it over to questions.

Dean Reuter:                   Very good. Thank you for that summary. We've got no questions pending, so our lines are wide open. Push the star button, then the pound button on your phone. I'll start by asking a question, how much of the discussion really went to the ... different hypotheticals? And I can imagine a few of my own. Can you wear a Federal Society tie? We are a 501C3, but some folks identify the Federalist Society as aligned with certain positions, even though we don't take positions. On the other hand, is somebody free to wear a sandwich board, one of the old fashioned boards you put over the top of you, with the specific idea in that case is to usually, typically, get somebody to buy something. And then you get some very, very nuanced sort of examples, I can imagine Michael Jordan running for City Council in Chicago, and can somebody then wear Michael Jordan shoes? With the idea of endorsing him, and trying to get others to vote for him. It does seem a bit like a quagmire, once you start going down that path.

Stephen Klein:                 Agreed. And there were several lines, particularly from Justice Alito, but from other justices as well, where it became sort of a machine gun style, name something, and I've got written down here in very characteristic handwriting, but asked if would a Colin [Capernick 00:16:56] jersey be okay? And I think the respondents replied, well, that would be allowed. Well, what about All Lives Matter? That could be in interpreted as political material. And then again, falling into this, well, these are really tough calls, and poll workers need to be able to make those calls, and again, in the name of orderliness, and again, it all goes down to this, well, is it understood to be political material, are we dealing with a well known issue. And that's ... again, I certainly echo Justice Alito's sentiments that it really only makes it worse in the context. So there were several different lines of questioning that really focused.

Stephen Klein:                 But one time the respondents had a complete disavowal of something that wouldn't be enforced was the idea that if everybody decided to get together a big group of voters, who votes at the same polling place, got together, and for one reason or another, decided to make a statement by all wearing white, and then they would all show up and overwhelmingly be wearing white. And the respondents said, well, that wouldn't count because that's not badge, button, or insignia.

Dean Reuter:                   Interesting. Well, if word were gotten out the day before that everybody who wants to vote for or against a certain proposition ought to wear white, that would pass muster?

Stephen Klein:                 Well, again, I think the only unequivocal time they said that would pass muster, and probably couldn't be interpreted under the law as being covered as a regulable ...

Dean Reuter:                   Interesting. You've mentioned, and we have one question pending, we'll get to that momentarily, if you'd like to join the queue, push the star button, and then the pound button on your telephone ... You've mentioned a couple times in passing, volunteers, the poll watchers, the poll volunteers, does this statute apply to them, are there more stringent requirements, or prohibitions on what they can wear or can't wear?

Stephen Klein:                 The statute definitely does apply to them, this applies to any person, and I don't know of anything in addition to the requirements put on them. But it's important to note, generally speaking, in a variety of states, and probably Minnesota included, that it went into some detail and some discussion about how poll workers are selected, particularly election judges, are probably distinct from poll workers, and they sort of have the authority to decide what these things are, and they're picked from the two major parties, and that's supposed to sort of alleviate any concerns about viewpoint discrimination. I certainly was not convinced about that. And it's interesting to point out, and this came up near the end of oral arguments, that, and this is also detailed in the eight circuits opinion below, was the idea that well, the punishment here is a potential 300 dollar fine, the respondents said it's the equivalent of a speeding ticket. And the point is that you will not actually be prevented from voting if you show up and you have what's considered political attire. And you're told to, well, you can cover it up, and then you say, this isn't political attire [inaudible 00:20:12] You will still be allowed to vote, but your name will be taken down and you might be charged later. There's probably a really good Minnesota joke in there.

Stephen Klein:                 But I think Justice Roberts did a great job by saying, that really eliminates the interest you're trying to put forth here, if this is really about risks, intimidation in a polling place, then you're not really serving that interest, if this is about distractions in a polling place, you're not really serving that interest. If this is about just general orderliness, you're not really serving that interest, if you're just allowing this to happen, with some threat that we might prosecute you later. The statute really does operate on the first amendment chill, the fear will keep them in line.

Dean Reuter:                   What, again, could you say a few more words about the announced goal here, is it to prevent influence, is it to prevent coercion or intimidation?

Stephen Klein:                 On this part, Dean, I'm particularly cynical, I think there's ... and I should step back there, I think there're great intent here, and there's legitimate concerns about disruptions in polling places. One of the problems with the Burson case was that that came from, and I believe it was Tennessee, but one of the more Southern states that had certainly had a lot of problems in reconstruction, and with other civil rights issues, and one of their laws, the laws at issue at Burson, it wasn't actually at issue, but one of the laws that actually prohibited police presence in polling places. So that seemed, to me, to be a big deal, as far as, well, now we need to have all these other prophylactic measures. But that's not the case as far as I know in Minnesota, it's certainly not the case in a lot of other states. I'm litigating a polling place related speech case in Michigan right now, and that's fascinating, that when there is serious disruption, you can actually call the police without issue. You can even have them there in advance, if you sense something had is going to go down. And that was I think a really big distinction in the Burson case, than we're dealing with in a lot of other states.

Dean Reuter:                   Interesting. Well, we do have one audience question pending. We'll go to that audience member momentarily. If you'd like to join the queue, push the star button and then the pound button on your telephone. Let's check in with our audience at this time. Go ahead, caller.

Mark:                               Hi, this Mark, up in New York, I thought the presentation was excellent, so thank you for filling us in on this. My question, which you've already touched on a little bit, is really the remedy. How does it really work in the real world when someone goes in to one of these polling places with a shirt that maybe violates the law, maybe doesn't maybe is political, maybe is not political, like, how does these really get resolved, like, who makes the initial decision, like there may be a problem here, who follows up, who debates? What is the process here? I ask this from the perspective of like, jury instructions, you have these grandiose jury instructions in a trial, but at the end of the day, you need to give them to jurors to actually follow it, and [inaudible 00:23:22] my question here is, how do poll watchers and people in these positions really follow this law in the real world?

Stephen Klein:                 Thanks for the question, and they went into some detail, and the idea is that people will be, you know, again, that judgment call first of all, and that's really the crux of the case, is who gets the judgment call, and it seems that even with instructions, that bolster the law at issue, it's still very broad and I should go back to, when we're dealing with first amendment principles, the concept of first amendment over breadth is different over breadth, it's more stringent than it is in other contexts, where instead of saying it has to be unconstitutional in all of it's applications, it really needs to be only unconstitutional in a significant number of applications, when compared to it's plainly legitimate sweep. And so the danger, though, that over breadth is protecting against, is very similar to vagueness, and that's arbitrary and discriminatory enforcement. So the crux of it is right there, at that first judgment call, that when you have such a broad law, that broad authority is already, when you're dealing with the regulation of speech, is already a danger, and a very real one, at that.

Stephen Klein:                 So that's where it begins. And the idea is that then the poll worker will ... and I think again, I give credit to Mr. Breemer, arguing for the Voters Alliance, for hitting this I believe more than once, by saying, well, here's where the disruption actually happens, like somebody walking in with an NRA tee shirt is not actually disrupting or distracting anybody in a polling place. When that becomes a disruption or a distraction or a delay, is when the poll worker steps up and says, you can't wear that. And then it turns into, not necessarily an ordeal, but maybe a discussion. And that discussion's gonna take the attention away from other duties, and then there's going to be a discussion amongst the poll workers, who are deciding amongst themselves again, because this is such an arbitrary law, well, does this fit the definition of political badge, button, or insignia, and then the idea is the, whoever gets the final say, then of course Justice Breyer tried to make this point, and I wasn't entirely sure what he was going for here, but then the citizen has to make that choice of their own determination of whether this is a political attire, and proceed accordingly.

Stephen Klein:                 What then happens is that their name is written down in a book, and they might be prosecuted later on. Again, it's to the credit of Minnesota, they're not like the state of certain other states that would deprive people of their right to vote in that instance, but again, I think that certainly diminishes the interests that are trying to be served. And I forget which justice pointed this out, but the fact is that, in order to be intercepted, you have to come into the polling place, it's the poll workers with this authority, they're already working inside the polling place, so the violation has already occurred by the time you're asked to cover up. So a lot of those technical details did come up, and that seemed to be toward the latter end of the argument, that they were really just trying to clarify what is it that's actually going on here. But I would say again, the crux of the argument here is just having that authority in the first place, this broad of an authority.

Mark:                               So when you give them your name, do you then have to show them your ID?

Stephen Klein:                 Oh, there's no voter ID requirement in ... That's a really good question.

Mark:                               Right, so if I say, hey, I need your name now, so I can give you a ticket, and then I give you my name, do I now need to show you my ID in violation of the voter ID law? Or should I just give my neighbor's name?

Stephen Klein:                 That's [crosstalk 00:27:18]

Mark:                               Or Eric Holder's name?

Stephen Klein:                 That did not come up, but that's a very good point.

Dean Reuter:                   Very good, and if you'd like to join the queue for questions, push the star button, then the pound button, on your telephone. We've got one question pending, then our lines will be wide open. Looks like we've got a second question. So let's carry on. Go ahead, caller.

Arthur:                             Yes, hello, this is Arthur [Helm 00:27:36], and I missed the first part of this so maybe you've answered this. I don't know if you saw an op-ed or just a blog post by Richard Hasen, who runs the election law blog, defending the law, and laws like it, saying that in this age of polarized voters, that this is a way of avoiding conflict. If you have one group coming with one set of signs and badges, and another with another, and each of them testing the limits of the law, and the law is justified, I think he was saying, as a way of avoiding getting into that. Did that come up at all, with the argument, and how would you respond to it?

Stephen Klein:                 Professor Hasen in my experience has never met a governmental interest, he didn't like More Than Free Speech, so that's what my general assessment. As far as the polling places go, I think this is ... it's interesting, because these cataclysmic possible circumstances don't occur. And that came up in the regards to other states that only prohibit as what was upheld in Burson, actual electioneering, so whether it's nine or eleven states, it's a minority of states that have broader than an electioneering ban, and are in fact, so those are the states where you can go vote wearing an NRA apparel, or Black Lives Matter, or things that do not relate to the election or defeat of a candidate. And we haven't seen that kind of activity. And it would be, and I think Justice Gorsuch pointed this out quite well, well, it's the government's job, the state that needs to put forth this interest, the interest that justifies the ban, and that really puts them in a tough corner, when this across the country, in a majority of states, we haven't seen that kind of, the hypothetical that Professor Hasen mentions.

Stephen Klein:                 And I want to point out as well, that this came up, and this has come up in a lot of these polling places, and I believe the respondents leaned on this heavily, and kind of, they want to use Burson because that was also, again, it was mid 1990s, but it really relied on all of the election reforms that really swept across the country in the late 1890s. And that involved, a lot of those are, by all means, I would never want to reverse them, including the Australian that is the secret ballot. That was actually a major change that I think was absolutely for the best. But, and with that, prohibitions against intimidation, and actual certain other crimes. Before that, for a republic that lasted ... again, it's worth noting the American experiment did go through 100 years, and it wasn't all bad before that. But there was, and there are, plenty of stories from before those reforms about showing up for the polling place with kegs, about parties making their own ballots, basically, and they were all of a, even though there be a secret voting, maybe, your ballot would be the right color, so that people knew you were only voting for their candidates in advance.

Stephen Klein:                 So leaning on ... my position is that governmental interests can change, it's ... free speech, however, among our other natural rights, those endure. And sometimes you have to step back, and you have to re-assess, particularly in light of changed circumstances. So the idea that ... Professor Hasen and many other reformers can continue to dream of the 1890s, maybe they should move to Portland, but that's not necessarily the case anymore. And this is worth pointing out, and my plug here is that, what's interested me so much in this case, and I've done a previous teleforum on this issue, is the area of what's called ballot selfies, or the idea of ballot photographs. And these are predominantly young voters, they go to the polls, and like some poor Minnesotan wearing a Tea Party shirt, they have no reason to think that it's illegal for them to take a picture of their marked ballot after they've voted for someone, they're very excited about that, and then they go and they post that to social media. And that supposedly is a violation of ballot exposure laws.

Stephen Klein:                 Which in Michigan, in the case where I'm litigating, would actually require you to forfeit your ballot, assuming you got caught actually taking a picture of it. Otherwise, and this is a point of contention between me and the opposing counsel, that might also get you incited for a misdemeanor for unauthorized photography in a polling place, even though you weren't photographing somebody or somebody else's ballot for that matter, but just your own ballot inside of a voting station. That's ... again, then they lean on this idea that there's going to be all this rampant fraud. And yet, again, there are plenty of other states, we won the case in Colorado against a ballot photography restrictions, and there has yet to be any credible case about somebody selling their vote by being able to take a picture of their allot, or things of that nature.

Stephen Klein:                 And I think that burden shifting is very important. It's not so much shifting, but just recognizing that in these first amendment cases, we need to put the onus on the government to establish, whatever interests, whether it's a compelling governmental interests, it's an important governmental interest, even at a rational basis, I would like the court to start taking a little more scrutiny, and that was a very telling point by the respondents, to say, well, it's the same as Burson. We're relying in this history. Well, it's been 120 years, can we maybe get some fresh review of whether these are justified laws?

Arthur:                             Well, it's a somewhat related issue. The Florida judges solicitation for money, where Chief Justice Roberts uncharacteristically was very credulous toward the assertions of governmental interest. I think it was Justice Alito wrote the dissent, and shredded the assertions that this was necessary to prevent corruption, giving all the holes in the laws, and exceptions, and the ... limitations of the laws, but Chief Justice Roberts accepted it and said, yeah, they've made their case. So you're right that it does depend on the burden, and yet judges vary greatly, as of course you know, in their willingness to accept the supposed evidence that states put forth.

Stephen Klein:                 I think that's a very good point, and I think that goes back ... I was having a conversation with someone at the court just after arguments, and they brought up the same point. And that's another reason why this is such a fascinating ... I always march into these things pretty gung hoe as a first amendment litigator myself, like, this is open and shut And well, precisely because of cases like Williams [Yuley 00:34:55], which you just mentioned, were these certain institutions find themselves drawing more fidelity than constitutional principles in some instances. And as you mentioned Chief Justice Roberts, again, I don't want to be flippant about dismissing the importance of voting, the importance of orderly polling places, but this idea that we're putting constitutional rights on some kind of, we have to have some kind of balancing test here, I think it's more than possible, in fact, quite easy to respect both in this instance.

Arthur:                             Thank you.

Dean Reuter:                   We've got one question pending, and our lines are wide open. If you have a question push the star button then the pound button on your telephone. It's heading a new direction here.

Todd:                                This is Todd Gaziano, and I'm from the Pacific Legal Foundation. I'm David Breemer's colleague, who brought and argued this case. So I wanted to thank you, Stephen, for your fine courage and I was in the court room with you and I wanted to ask you about one of two things that I thought were pivotal moments, and your impressions thereof. But I missed the first three minutes of your call, so I apologize if you've already gone over it. But when Justice Alito was asking the respondents' attorney about what would and would not be prohibited, you discussed some of the examples, I know, but when he got to the text of the second amendment, the attorney for the respondents said that he thought that would be banned. Then he was asked about the text of the first amendment, and he paused. He thought, well, the first amendment wasn't necessarily so political. My prediction is that's going to be written up in about every other news story on the case. What was your ... do you think that persuaded many of the justices, or will do so? That the application is too broad?

Stephen Klein:                 Thanks for the question, Mr. Gaziano. I know. I think you do raise a very good point, and that was definitely what I hope will be a pivotal moment, and it was a good ... it'd be funny if it wasn't so sad, to have that moment. And I juxtaposed earlier, I think, NRA, versus the hypothetical 'Parkland Strong' button. I think puts the same kind of issue into perspective. Well, guns are a political issue, but man, first amendment, no, that's not a political issue. So you know, I hope so. I think my concern goes back to where the frustration that was expressed, particularly by Justice Kennedy, throughout, about, give me the limiting principle, I want it right now. And that was probably the part that you could say was missing. But again, that is, I think, a point that Mr. Breemer made very well, that that's not, when you're dealing with facial over breadth, striking down a law is not the end of ... can very well be the end of the story. And that that might actually be a very good piece of judicial example, of judicial restraint, is to say, you got this wrong, and the Minnesota legislature is welcome to go back and try it again. And that should be ... and if they get it wrong, well, we might come back here. So that was another great moment in the areas of the hypotheticals.

Dean Reuter:                   Let me make another final call for questions. If you have a question, push the star button, then the pound button on our telephone. On your telephone rather. The lines are wide open.q We do have another question, so let's check in with yet another caller.

Michael:                           Hi, this is Michael Ross, I'm with the Center for Individual Rights. I have two quick questions, and like several past callers, I think I missed the first three or four minutes of the discussion, so if I am asking a question you have already answered, I apologize. First, was there any discussion of Marks, Marks versus the United States, and how to interpret a rational from the splintered decisions in Burson, or were the justices simply using Burson as a starting point, and saying, well, we'll just figure out for ourselves exactly what lines to draw? And second, was any mention made of the fact that people don't always vote at voting places these days, they vote at, you know, before elections, they vote at home. And whether or not the rationale of the respondents could be applied outside of just the voting booth on election day?

Stephen Klein:                 As to the first question, there was no discussion of Burson's plurality status or how to interpret, it was really just taken as a given, which is a little bit surprising. And as to the second question, no, that also really wasn't discussed in much detail. And I would point back to at least, you know, sometimes this ca- you know, the arguments are gonna wander a little bit far off, but this one, the sentence of the law that is at issue relates to the wearing of things on or about the polling place, on primary or election day. So at least that's the non over broad or vague part of the statute. That those are the days it applies. So as to going to absentee places, where you might be voting absentee, or those, it doesn't really seem to trigger the law at issue here. So.

Michael:                           Thank you.

Dean Reuter:                   Well, Stephen Klein, I think we've had our final question. Let me give you ... we've still got some time left, give you a minute or two to wrap up or express a final thought.

Stephen Klein:                 I would simply revisit that I think the most important thing here is the ... certainly keep in mind, and I do re-emphasize, I think voting is very important, but there has to limits on the kind of power given to election regulators and how they go about running a polling place. When you have people, citizens, and we're trying to always increase voter turnout, and increase participation, and have citizens involved in or democracy, it's very important not to punish them for participating in it. And I think a lot of this could have been avoided with just a little calmer and a little less treatment of polling places as some kind of holy site. So, I'm curious, and I still remain pretty ... I think it's unpredictable how this case is going to turn out, and I think I'm certainly wary of the fallout, if it falls along the lines of possibly expanding Burson. We've seen ... this proves again sort of the adage, if you give the government just an inch, or a 100 foot buffer zone, man, they're gonna really try and take as much out of that as they can.

Stephen Klein:                 But again, I do recommend, once the audio's available, I think this is a very worthwhile oral argument, worth listening to, and debriefing, and again certainly on the constitutional litigation side, again, a lot of kudos to the Pacific Legal Foundation. All the attorneys who worked on this case are going on eight years, and hopefully even if it's gonna be a five to four it comes down on the right side.

Dean Reuter:                   Well, my thanks to Stephen Klein, at the Pillar of Law Institute. We certainly appreciate your time today, especially going to the court, and giving us your download on what transpired there. I want to thank the audience as well, for dialing in, and for your questions. A reminder about our next scheduled teleforum conference call is tomorrow, it's the [Lochea 00:42:52] case versus SEC, that's tomorrow at noon, Eastern Time. That's the case that involves an agency administration of law judge, separation of powers, the appointments clause, being argued tomorrow, and we will  it, as we did this case, with a courthouse steps teleforum. But until that next teleforum, we are adjourned. Thank you very much, everyone.

Dean Reuter:                   Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast, and other Federal Society multimedia, please visit the Federal Society's website, at FedSoc.org/multimedia.