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AG Derek Schmidt to U.S. Supreme Court: States may lawfully ban electioneering near polls

Release Date: Feb 14, 2018

TOPEKA – (February 14, 2018) – State laws that prohibit political signs and other passive forms of electioneering near polling places do not violate the First Amendment, Kansas Attorney General Derek Schmidt has told the U.S. Supreme Court.

In a case arising from Minnesota, Schmidt and 10 other state attorneys general filed a friend-of-the-court brief earlier this week arguing that a statute – like the one at issue in Minnesota and like a similar statute in Kansas – that prohibits political signs and other passive electioneering near polling places are a valid exercise of state authority to protect the integrity of the voting booth.

“Amici States … have a strong interest in preserving their ability to enact reasonable and viewpoint-neutral restrictions on speech inside nonpublic forums, including inside polling places to protect their citizens’ right to vote,” the attorneys general wrote.

The Minnesota case centers on whether Minnesota’s restriction on individuals wearing “political badges, political buttons or political insignia” in the polling place is a reasonable, viewpoint neutral regulation of speech in a non-public forum.  

“Preserving a non-public forum for its intended use may require the government to draw distinctions among speakers based on content, and it may do so consistent with the First Amendment, so long as it is reasonable and viewpoint-neutral,” the attorneys general wrote. “Minnesota’s restriction on political apparel in the polling place is viewpoint-neutral and a constitutionally reasonable method to serve critical government interests relating to elections.”

Electioneering as defined by Kansas law includes knowingly attempting to persuade or influence eligible voters to vote for or against a particular candidate, party or question submitted. Electioneering includes wearing, exhibiting or distributing labels, signs, posters, stickers or other materials that clearly identify a candidate in the election or clearly indicate support or opposition to a question submitted to election within any polling place on election day or advance voting site during the time period allowed by law for casting a ballot by advance voting or within a radius of 250 feet from the entrance.

In addition to Kansas, the other states joining the brief are Indiana, Louisiana, Michigan, Mississippi, Montana, Nebraska, Rhode Island, Tennessee, Texas and Utah.

The case is Minnesota Voters Alliance, et al., v. Joe Mansky, et al. An oral argument is scheduled for February 28. A copy of the brief is available at http://bit.ly/2F1dZzH.

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