Submitted: October 20, 2016
from United States District Court for the District of
Minnesota - Minneapolis
RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
BENTON, Circuit Judge.
organizations and individuals sued the Minnesota Secretary of
State and Ramsey and Hennepin county election officials,
attacking a statute prohibiting the wearing of political
insignia at a polling place. This court previously reversed
dismissal of these groups' as-applied First Amendment
claim. Minnesota Majority v. Mansky, 708
F.3d 1051, 1059 (8th Cir. 2013). On remand, the district
court granted summary judgment for the defendants. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
Statute § 211B.11 prohibits wearing a "political
badge, political button, or other political insignia . . . at
or about the polling place on primary or election day."
To help determine which materials were political, Minnesota
election officials distributed an Election Day Policy with
examples including: "Issue oriented material designed to
influence or impact voting" and "Material promoting
a group with recognizable political views (such as the Tea
Party, MoveOn.org, and so on)." Election judges were
instructed to ask anyone wearing an item violating the Policy
to remove or cover it. If a person refused, the election
official should allow the person to vote, but record the
person's name and address for potential misdemeanor
Majority, Minnesota Voters Alliance, Minnesota Northstar Tea
Party Patriots, and their association-Election Integrity
Watch ("EIW")-sued the Secretary of State and
county election officials ("Minnesota") to enjoin
enforcement of the statute and declare it unconstitutional.
EIW alleged it was invalid-both facially and as-applied-under
the First Amendment and violated their Equal Protection
rights due to selective enforcement. Individuals associated
with EIW claimed their speech was chilled because they could
not wear Tea Party logos and slogans at their polling places
without fear of legal action.
district court initially dismissed all claims. This court
affirmed as to the Equal Protection and facial First
Amendment claims, but reversed and remanded the as-applied
First Amendment claim. Minnesota Majority, 708 F.3d
at 1059. After "giv[ing] the parties sufficient
opportunity to create an acceptable record, " the
district court granted summary judgment against EIW on the
as-applied First Amendment claim.
court reviews de novo the grant of summary judgment.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc). Summary judgment is proper
"if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law." Id.
Facts "must be viewed in the light most favorable to the
nonmoving party, " but "[t]he nonmovant 'must
do more than simply show that there is some metaphysical
doubt as to the material facts, ' and must come forward
with 'specific facts showing that there is a genuine
issue for trial.'" Id., quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). There is no genuine issue if "the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party."
Matsushita, 475 U.S. at 587.
polling place is a nonpublic forum. Minnesota
Majority, 708 F.3d at 1057. Restrictions on speech in a
nonpublic forum are constitutionally valid if viewpoint
neutral and "reasonable in light of the purpose which
the forum at issue serves." Id. at 1057,
quoting Perry Educ. Ass'n v. Perry Local
Educators' Ass'n., 460 U.S. 37, 49 (1983). A
state "has a legitimate interest in 'maintain[ing]
peace, order and decorum' in the polling place" and
"a compelling interest in 'protecting voters from
confusion and undue influence' and 'preserving the
integrity of its election process.'" Id.,
first quoting Mills v. Alabama, 384 U.S. 214, 218
(1966); then quoting Burson v. Freeman, 504 U.S.
191, 199 (1992).
the statute and Policy are viewpoint neutral and facially
reasonable. Id. On remand, EIW needed to come
forward with specific facts showing that banning Tea Party
apparel in particular was not reasonable in light of the
statute's purpose. See id. at 1057-59.
argues the statute as applied to Tea Party apparel is not
reasonable because the Tea Party is not a political party in
Minnesota, does not endorse candidates or ballot issues, and
its materials do not relate to anything on the ballot. EIW
asserts that the apparel conveys only a philosophy, not ...