we'll hear argument this morning in case sixteen fourteen thirty five minnesota voters alliance versus man skee mr bremer mr chief justice and may please the court minnesota statute bans all conventional political expression on a to prevent a smaller class of material that can already be regulated under other election statutes search saying apple c e o chamber of commerce move on doc or move on dot org excuse me and countless other examples are prohibited statute that was more narrowly drawn no i do not think they could under any test that type of generalized political expression associations and a c p countless others could could not be an expression association do you do you think mr bremer that a statute could target only electoral speech in other words clinton for president trump for president that sort of thing could a statute say that that speech cannot be worn in the polling place yes a statute does say that in minnesota the first sentence of this stat no i know but it could a statute constitutionally say that if it were limited to honor whether that that line is so close but the statute here the first sentence already prohibits that material in it and challenge that particular sentence here and even assuming you could ban advocacy on the expression this statute goes so far to take in so much material that isn't advocacy that is simply self expression of personal values and associations so i agree it's a tough a very tough call but it's not one that's course without it but it's important for us if we're going to  write an opinion on the issues they will have a don't know what about political buttons anything vote for x or vote for y and they're both on the ballot correct as i mentioned before the statute it's first since it's already ban about a hypothetical case could a statute that was limited to that be upheld and would it be constitutional in your view no i don't think it would be i don't think it would be because of the opposite of what you're saying was directly and completely as we read burson it didn't deal with the passive wearing about any kind of apparel campaign or more general political apparel it dealt with active campaigning and material used in conjunction jory because someone puts something on instead of handing it around that's the line you want to set your well that's part of the line it's not the passive nature of the material undercuts the state interest in claiming that it's destructive but it's often also intimidating speech mr bremer the passive versus active sounds a lot like the act omission distinction and that has proven to be one of the most slippery concepts in all of the law is  act to put on a button or is it no mission to not speak about what's on the bottom of a t shirt you say is passive what if it weren't stead a sign on my head you know a flashing regulated by other statutes for instance minnesota's anti intimidation statute section two eleven the point zero seven could be utilized to get intimidating and threatening messages in the polling place similarly unless they talk about other interests like decorum and dignity and those aren't addressed by the other statutes no they're not well they are addressed by section two studio four scene point zero se conduct and interference is difference between interference with someone's right to vote or disorderly conduct and decorum they're not they're not the same decorum obviously reaches further than you can intimidate someone yes it probably would your honor that's true but there's no right to vote as far as i understand of the right to vote free of intimidation but there's not a right to vote for you of being bothered at all polling places are not pristine retreats from the real world and i don't believe the government can sacrifice the first and then well maybe i'm not to say that but i wonder if the state can make an opposite determination and say you know for however many months we've had this it may be better than the sharp political campaign going on and maybe just before you cast your vote you should be able to have a time for some quiet reflection or to do that important civic obligation in peace and quiet without being bombarded by another campaign display and if you know you say these are pits passive but not active but if you know a picture can be worth a thousand words in people's apparel can convey very strong and shocking images that maybe the state can decide that just before you cast your vote you should have at least a moment free of all the storm and wrong of the campaign that that's true and there are legitimate interest in the polling place the problem here is that most of the material that it wants to get it if not all i already covered and the small amount that you're suggesting is not a cover basically that the state's interest in decorum and solemnity and the dignity of the voting process cannot be protected by rules relating to buttons and apparel i'm saying your honor that i it's not reasonably protected in this instance because it sweeps in so much material that's not reasonably related to those insurance i suppose we think that it would be a different case and then the state could have a law that prohibits the wearing a buttons or any other or attire that contains the name of the candidate or refers to a ballot issue or the name of a political party that has candidates running for office in that election if we thought that that would be consistent with the first and then would that do me a case and would you still have additional arguments no that your honor that is one place where you can draw the line and if the line is drawn there this statute still fails it's still over broad because it sweeps in so much at all clipping the justification for that line in your view but the justification in other words why would we put one or the materials that justice alito talked about on one side of the line and all of the materials that you think a state cannot restrict on the other side in your view what's the difference i think that you could argue with the conclude that that type of  state ban a button or shirt that said restrain government spending no you're right i don't believe it could because the connection if your adversary says they can because it's a political issue display that's correct i think they do and that's where you say they can't you know we say even though that's on the ballot a fiscal issue i think the connection would be to attenuated because then you could extrapolate here over what do you think a reasonable observer with think it's too attenuated i think yes i do think a reasonable observer would not see generalized political peril as  i think the new sort is an anti deception anti fraud statute that was already on the books could be used could have been used and could be in the future if similar circumstances come up could be used to deal with that in that section two zero two one one the point zero seven again that's the entire intimidation statute there is also fraud statute which is two of four see point zero thirty five all of the government's interest can be already addressed through its election statutes and that's what makes the statutes overbroad is that it's trying they're trying to get a small slice of potentially uncover material by banning all political expression association even items that don't go to about issues that don't go to candidates that are just personal expression of political beliefs and political value it just is a little bit hard mr bremer to evaluate an argument of overbred unless we have a clear view from you as to how far you think a state could go so i'm not sure that you've given us that view i mean are you do you want to accept justice alito suggestion or do you want to draw the line at some other place so that we know ok that's permissible about how does this relate to that that's the usual way over breath analysis goes yes your honor and it's very difficult given the range of available material that's out there and the number of interest the government has you're going to be able to put every item in them in the appropriate proxy i think it's very hard to draw a line other than drawing a line through this particular sentence which would allow the government to continue to pursue its interest but a comedy free speech if the court is concerned about preserving the dignity in the form in the women of the voting process and the statute is difficult to say isn't that an argument for allowing good faith determination on a official no i wouldn't say that your honor because in the meantime free speech would be chilled all of his conventional political expression an association that no reasonable person would see as a threat to the polling place would be chilled in the process as it's being chilled right now and will be continued to be children lost on the statues of invalidated so i agree that it's a possible line to draw advocacy material but in any event the statute would fail because it still sweeps in the rest of the convention if that were where we drew the line i mean what what would be encompassed in advocacy material would it be only things that name the candidate's name you honor i think it would be anything said for against a candidate or an issue directly on the ballot but if it said resist i think that would be constitutionally permitted and should be and generalize slogans make america great again that type of slogan too i think that should be constitutionally permissible and color generalized otherwise you start to bleed over and pretty soon you have the problem that we have here discretionary foresman and you're swallowing all th other legitimate speech when you're trying to stop that type of advocacy tiriel why should there be speech inside the election booth at all inside the what he called the election room but let's say that it's a small room why should there be any speech there at all there you're there to vote your arm because the first amendment doesn't stop at the polling place door even if it's not just one of the questions in the case what's your side citation for that honor in minnesota has said that i'm sorry for misunderstood i thought your question was whether you could create an entirely first amendment free zone in the polling place and my answer to that would be no you you can't and this gets close to a first amendment free zone because political speech is such a core part of the first amendment that it's a political speech free zone and while you may be able to the government may be able to ban a certain small class of material for instance the advocacy material it couldn't sweep in all the rest of the available political speech out there resist sure it's me too and so on but that's exactly what it's doing here it's trying to silence all that's legitimate speech by trying to go after a small slice that it can already regulate under its other statute feasible bright line i think that the state would have to if there's an intimidating message that comes in i think the state would have to deal with that on a as applied basis as as events occur under its existing statutes like the position that please  d wasn't intimidated no your honor nor that it was free speech that should be stifled correct are you changing your mind on that now you know our position was that as pure speech just the words on the button were yes that was protected speech that's correct so there's always lying jury whether you call it intimidating speech or not someone's going to have to draw a line so going back to justice kennedy's point why if this is the public forum why can't the state reasonably draw the line at say political speech of any kind can be potentially intimidating in a voting place and we won't permit it i think the reason is that the first amendment continues as i mentioned before it continues to apply in polling places and once we start to create you're going to go and say that's the permitted act political activity correcting your own and that it's not all is being theirs and i suspect that on a military base we would say it would be ok for the army to say in military grounds we're not going to permit political speech well i'm not quite sure about that your honor because in greer in the greer decision the court said that conventional political speech would not be banned this court has never upheld a prohibition on political speech as broad as this and if we had ever said that it would be permissible to ban all political speech on military ground no your honor in greer the court said that conventional political speech was continued to be permitted and so i guess the answer to the question is that this court has never upheld a prohibition in this broad in even in nonpublic forms you know on a military reservation in an airport in a school in coing tikker in greer and all these cases the court wasn't willing to draw a line it was not state interests legitimate it's true they are important interest and we don't deny that the problem is that the means being used it's such a blunt means that it's swallowing a lot of clutter in your question that doesn't have a reasonable connection to those particular interests like simply wearing a shirt that identifies an organization that has political views or a hat or any other sort of apparel that simply identifies the wares personal beliefs a lot of this is materials not worn as advocacy or to influence but simply is self expression on the devil election when people want to express their own political views when everyone is talking about them and where i'm in so that type of material i don't believe our position is it cannot be began even  the most lenient test because it's not related to these interests now there are some is some material threatening intimidating material threats to particular classes they could be under minnesota's anti intimidation statute but the problem here we have here is that this statute doesn't stop there what about the concern about coordination you know whatever the group is you know the big employer the union teachers or whatever so we're all going to show up and we're all going to have you know these these buttons on or whatever and maybe you're a member of the group and you don't agree with a position and you feel some pressure to transform your speech from what you really would like to say or you would like to say anything about it and yet you're going to be identified because you don't have our button you're not doing what you should be doing to support the group yes your honor and if if that situation did come up it could be addressed under section two zero four c point zero six which prohibits a voter interference in disorderly conduct and loitering in the poem but nobody would say that it's interference or disorderly conduct it's subtle psychological pressure i don't think that would be covered by any of those other statutory provisions and in that case your hon other statutes that could be addressed as an as applied challenge under those situations under those existing statutes because it's crossing the line in that kind of situation it would cross the line between speech and conduct and once you cross the line between speech and conduct or speech and electioneering if you draw the line at advocacy it would cross the line between electioneering either one of those and then you could deal with it on that situation i would mention though is it is a it is a fact that that type of behavior is already not allowed in polling places because of the other interesting statutes in there that try to keep it quiet to core and limiting people for the only the purpose of going you know how many other states have laws that go as far as minnesota d what has been the experience of these other cases these other states they had brawls and in the polling place they had disturbances in the polling place no your honor there is no evidence of disruption either in minnesota or these other states caused by it simply where states that don't have laws to go as far as women so this one has been the record there as far as i know you're on it's not in this record as far as i know that the that there hasn't been any instances of a disruption caused by people wearing apparel except for one polling workers confront people wearing apparel and then stop the process to try and police their clothes and that's part of the problem here is that disruption and intimidation is often going to occur through the policing of someone's sure not through the fact that they're possibly wearing it if they go in and out of the polling place and does the record show how many officials would be making these determinations at a general election in minnesota and how they're selected the polling officials you know the polling officials there's selected from the parties there is parties that names a list is submitted and they're selected i don't know how many there are we know that there's more than one we also know that there's  there's other officials sometimes that go into other selected by the party so when an official from one party thinks that the entire of a particular voter violates this law what happens that's the final decision what happens at that point your honor is yes that's that's a final decision in this respect that the voter with the peril must either take off their clothes or have their name and address the other the state you know whether these these people have any training or of their they all chosen to be the reasonable observer and they you know test them to see if they're they're the reasonable observer i don't know  i know that they try to train them your honor and this is how election day policy in this case came up the election officials attempted to train the officials to polling officials to apply this very broadly to material that names an organization an advocacy material party material and not limit to that so there is some effort to train them but the effort in this case confirmed this statute sweeps so broadly that there's almost virtually there's a virtually nothing political that can't take in with every me i'm thank you counsel mr chief justice and may please the court minnesota's restriction on speech in the polling place does not violate the first amendment it is a reasonable and viewpoint neutral speech restriction in a quintessential nonpublic form that protects the fundamental right to vote this court has recognized that ensuring the integrity of our electoral process and protecting the fundamental right to vote our government interest of the highest order and that laws advancing these important interests may constitutionally limit minnesota's prohibition on political peril in the polling place is such a law this law protects the integrity of the elections by preserving order and decorum in the polling place and preventing voter confusion and intimidation it does reach quite a bit beyond what i think of reasonable server would think is necessary do you really think if someone has a shirt with the tiniest little logo or inscription here that that's going to have any effect on decorum your honor that the the test that minnesota has is what a reasonable observer would understand is advocating electoral choices so in some ways a tiny lapel pin that no one can see is is not you can see it i mean you can see it in you know it's the logo of one of the campaigns certainly yes your honor i do i do think that that causes the problems and is constitutionally prescribable and it's for the reasons that you discussed which is the intimidation that it that can occur is not just based on the plain meaning of what is what the apparel says that it's somehow intimidating on its own it's it's a pro it's a prophylactic measure designed to prevent the type of intimidation that you talked about which is that having people identify with a particular candidate allows them to then suddenly feel like they do have to comply or that they're going to be singled out and that can lead to the intimidation and that's what the history of in minnesota and in states in the  hundred said let this court in person to uphold exactly that type of prohibition well i don't know if i discuss the issues i ask questions but i just don't understand where the disruption of the decorum comes with respect to anything that qualifies as political i mean people going to vote certainly would expect that they would see people arguing for their candidates with the other candidates now maybe not within one hundred feet or whatever but the idea that they're going to be protected from recognizing that other people support different candidates than they might i think is a bit more of a stretch certainly your honor and i think i think recognized that order in decorum can be called into question by simply wearing campaign material all that minnesota's law does is extend that line to political material and it's for the exact same reasons it's that when you have campaign that's gone on for months and we end up at the election day in the polling place where we've asked people to come forward to exercise their right to vote that is a place where we want to ensure that there's order and decorum so that there is the solemnity that goes with voting and having people identify themselves with a pin that is a campaign or a political message on it reasonably could lead to disruption and that a lot of how  your honor that the the line that we have drawn is campaign material plus political material with the definition of political material being reasonably related a reasonable person would understand that the message that's being delivered is one regarding electioneering statute and from the definition of political purpose which is in the statute which describes it uses the word political to mean influencing voting in an election and the problem is that so many things have political connotations and the connotations are in the eye of the behold and on election day you're going to have hundreds maybe thousands of officials in minnesota and every one of them probably thinks that he or she is the reasonable observer and they're making  determination about whether something has political connotations and in one of your elections in two thousand and sixteen i think you have the president was running members of the house were running members of the state legislature were running state judges were running there were local elections there was one ballot question so the observer would have to know all of the issues in all of those campaigns and would have to decide whether something  connotations were guarding any of those issues it's an invitation for arbitrary and arbitrary enforcement and in force and that's not even handed and i have no idea where the the answer is that it has two components to it it has to be understood as relating to electoral choices and it has to be well known so many of the examples that you talked about simply wouldn't be well known it's a reasonable observer sitting in the polling day after there's been a campaign after there's been the issues that have been raised that are relevant to the election deciding whether or not they believe that it's reasonable to understand the message beings that makes it worse than it has to be when i say not only does it have to be a political message but it has to be well known what is well known when you're entered the political has a has a plain meaning in our statute based on that it is influencing elections what all that i'm describing is that something that is political for example that is known to only a few people but is clearly political is not going to be something that's going to be reasonably understood by voters in the polling place how about a shirt with a rainbow flag with that be permitted a shirt with the rainbow flag no it would yes it would be it would be permitted unless there was unless there was an issue on the pallet that related somehow to two  rights how about a shirt that says parkland strong know that would that would be that would be allowed i think i think you're going to even though got a gun control would very likely be an issue to the identity that some candidate would raise an issue about gun control your honor that the the line that we're drawing is one that is is related to electoral who wants the answer to this question you're polling official you're the reasonable person would that be allowed or would it not be allowed that the parkland yeah i think i think today that i would  be if that was in minnesota and it was parkland strong i would say that that would be allowed in that there's not have been an hour or a shirt and then or a shirt today in minnesota no it would not your honor i think that that's a clear indication and i think what you're getting at i bet a shirt with the tex amendment your honor i think that that could be viewed as political that that would be how about the first amendment no your honor i don't i don't think the first amendment and you're on right now know that no one would be covered it wouldn't be allowed it would be allowed it would be it would be in and i think that i understand the idea and i've there are obviously a lot of examples that that have been know well this is the problem how about a cause column paper neck jersey no your honor i don't think that that would be under under our statute and i think about all lives matter that could be your honor that could be that could be perceived as political and i think obviously your honor there there are some hard calls and there are always going to be hard calls and that that doesn't mean that the line that we've drawn is is unconstitutional  i'm sorry your honor did i miss bill or to make it bipartisan reagan bush eighty four sure yes your honor i believe that that's you do this too i guess with that can't you with the need in state run hospitals to restrict conversation in certain areas to medical matters the need in law schools or other schools to restrict conversation in the class to the subject that is being taught including politics the need in  i know you make it up but i is about to be doing it's what i'm doing and i can think of many many instances where thousands perhaps millions of people have to have the authority to operate a standard to risk recluse speech to the subject that that hand and so if in fact we are trying to have a place where a person has reflected thought for a moment after the hurly burly of the campaign this problem will inevitably arise one way of correcting the stakes is through as applied challenges after the event so my question is how does that work how your honor suppose in the examples that you've heard there were mistakes made the person who was running it thought that the rainbow coalition was an issue in the case because one party wanted to have it and the other party was against it suppose he made a mistake and kept out the person with the sign or the t shirt either of which could have a rainbow on it suppose he's mistaken is there any remedy in your state the the what occurs if there is speech that is pro prescribable is the election judge will ask the person to cover it up and the remedy for that then is if the person can either cover it up and proceed to vote in that ended or if they proceed to vote their name will be identified in election day log indicating that they were wearing political material and that in all cases so far has ended the inquiry there hasn't been any adverse actions ultimately if somebody was a case was brought in the administrative hearing process the penalty is up to a three hundred dollars fine which is a traffic problem but i guess the issue is how do you know if a mistake has been made you know if someone makes a judgment and the  challenge how do you know mistakes been made i mean there's the question the concern of course that's what the case could be largely about is whether or not there are standards that can be applied in a reasonable way and it's not a question really of review it in as applied or other challenge to see if there's been a mistake unless the courts are going to be in the position of deciding all of those questions your honor i think the history of minnesota statute shows that we have a workable definition for over one hundred years we've had this statute in place and we have and this is the first time that it's been challenged by anybody objecting to an argument that they believe that their speech was not political and that the wearing something well or something in between and it is it is for the most part complied with that minnesotans understand that they're not allowed to wear political or campaign material so let's continue to be on this because i find it  useful it sounded to me from your response to both the chief justice and to me that there are two people who make the decision as to whether it is or is not political when is the election official and the other is the person carrying the sign or wearing the t shirt both make that decision because if the second the size that the first is wrong he simply goes in and continues to carry it then his name appears in a book all right if he does not want his name in a book is there any action he could bring in order to remove his name from the book on the ground that it wasn't political but there isn't any any statute of ms a little allow somebody to  know it's never happened because there's never been a problem is that the answer yes that's that people go to vote after work before work in the middle of doing chores for the day taking kids to school  somebody goes to the polling place and was wearing a shirt doesn't say anything about a candidate or a ballot issue but a particular election judge one of these people picked by one of the two parties says that's political you so now this person has a choice a person can wear a bathrobe or some kind of cover up to go in and vote you think that's not kind of humiliating or the person can be listed as a bad minnesotan and  at some point down the road potentially find three hundred dollars found to have committed a petty offense your honor that's a situation right your honor that the if the individual wore in a campaign shirt or a political shirt they would be asked to cover it up or if it was a button to remove it and there is no evidence in minnesota in certainly in the record and no evidence at all that with that there that this has been a problem that we've had people show up and say i don't have any other way to  forward is there any evidence usually in first amendment cases we're concerned about over bret's because of the chilling effect that's often undocumented and the burden is usually on the state to justify compelling interest rather than the other way around and so i guess my question for you is it sounds like minnesota's laws a bit of an outlier compared to most of the countries or maybe nine states or so with with a statute that goes this far is there any documented  statute to go this far as opposed to what happens in most other states which is limited to electioneering your honor i think that the premise of your question is is is minnesota's use of the word political and there are eleven states that use the ok eleven whatever number it is it's a minority number and under your interpretation of political it would forbit people from wearing certain portions of the bill of rights into a polling place but not other portions of the bill of rights and i guess i'm just wondering what compelling interest minnesota has identified that requires a statute that goes so much further than the vast majority of states you're under the former analysis would indicate that the burden on the state is only to show reasonable miss and that that our statute must what evidence do we have what what record is there what what facts can you point to that your honor it's the history of elections that was sufficient in burson to show that wearing campaign material would have a detrimental effect on the again burst with electioneering is different statute and you're asking us to go a step further than a person and i'm just wondering what what you have and if the answer is nothing further than  that's fine that's an answer your honor the evidence that we have is the same as what was in person and bersin is a case that did involve campaign speech what was involved there was clearly understood to be by this court to be campaign material related to buttons in t shirts worn in the polling place and within one hundred feet of the polling place all that minnesota's law does is expand the scope of what is prohibited from campaign speech to additional political spe political speech beyond solicitation for candidates or things on the ballot right yes beyond express advocacy that is that would be defined as is campaign speech and i think that the first amendment issue here as as my friend has described it is whether or not there is any ability to ban what they call passive speech the line that they've drawn here is not one about campaigns beach or political speech or the way that this court has described it which is that there are instances where you can ban any type of speech including on the this court's plaza where any speech any message on a ban or flag or device is prohibited those are the types it's clear that this court has allowed the states to prohibit what they call passive speech and instead of describing what the category is of speech whether it's campaign political or all speech their rule is if it's on a t shirt it doesn't matter what it says that you can wear it in a polling place and that was squarely rejected in burson and it was for the reasons that it impacts the integrity of the election by having political or campaign speech and it impacts the decorum and solemnity of the polling place to have that type of speech in the in the polling really and could you explain that for me a little bit more because i mean there are clearly some places where we think you know the court room is a good example where we don't want anybody to be wearing buttons or wearing shirts of of the kind that you are talking about but why should a polling be that sort of place another would you talk about the koran the solemnity makes it sound a little bit church like why is a polling place that why isn't it just the culmination of what is often a rowdy political process so for two reasons your honor i think i think the rowdy political process ends before you get into the polling place so that we can have an election that has integrity that its citizens we have to what we're doing is we're taking the citizens  decisions about who to vote for and turning it into electoral choices and for that process to have integrity the beginning of the process the act of voting itself have to have integrity and the integrity is not just actual integrity that somebody that everybody who is entitled to vote was able to vote it has to be perceived as having integrity and one of the problems with allowing campaigning or political material into the polling place is it creates a perception problem the example is if you have two people one wearing a make america great again at and one not wearing one in minnesota we have challengers who can challenge the eligibility of someone to vote if somebody challenges the make america great again voter but not the other voter the perception is did they do that because of partisan reasons how about the election judge who asks extra questions of the person working to make america great again at are they being singled out because of their political message and ultimately it impacts that voter the voter next to them and everybody in the polling place you now wonders you exacerbate that problem by opening up the possibility of similarly partisan or seemingly partisan applications of your very broad stature your honor that the there is no evidence of any viewpoint discrimination in minnesota in its hundred years and as you had earlier asked the the way that this process works is that there are at least four poll workers in every single precinct in minnesota and when they're busy there are more and they are from different political parties and so any viewpoint discrimination that that could occur is likely to be corrected by others in the polling place and ultimately the decision about whether or not to move forward with any type of prosecution under the office of administrative hearings is actually done either by the chief election judge or by the city clerk or how is that going to happen so let's say the there's an election judge who's a republican and this republican election judge thinks that a particular shirt has political connotations and says no you can't go and you got to where you got to cover yourself up or go home and get changed ok and now that person thinks that's unfair and then what happens the democrat a democratic judge intervenes and then you have you have an argument between these two judges your honor what would happen in that instance is is either the person would would would cover it up or there or there could be a discussion to say i don't this isn't political and i want to talk to the head election judge and then it would be resolved it would have always they had elections judge they had election judge is a judge who is selected by the city clerk because they aren't they have more training and usually they've been an election judge for a long period of time so that they're familiar with all the processes and i think you know one of the things that  that i think is important to understand is election judges have discretion to make a lot of different decisions in polling places in minnesota we have same day registration they make decisions about whether or not somebody is qualified has or has met the requirements to to register we also have challenge voters when somebody is challenge because for are they a felon or are they somehow not eligible to vote the election judge puts them under oath and ask them questions and makes a determination about whether or not they're eligible to vote so the idea that making  a decision about whether or not something is political or not is well within the understanding of of an election judge in minnesota and i think that the the important issue here is the state's interest is the fundamental right to vote this isn't just prohibiting speech in that at the d m v or at the post office this is an election process that is an incredibly important to democracy it's incredibly important to the electoral branches of government to make sure that it has the integrity that's required so that when individuals are elected that they have the legitimacy that's required to make sure that citizens believe that they are the rightful decision maker let me ask you about one of the interests that you assert your brief in this is on page forty six of your brief a voter could well feel confused or in timid if she walked into a polling place and discovered that every other voter held the opposite point of view i mean number of controversial political issues related to electoral choices as evidenced by the political messages displayed on other voters apparel you think that's a compelling state interest do you think that's even a legitimate state interest yes your honor i think it's i think it's a legitimate state interest in a polling place to prohibit material that is going to make one voter feel singled out that they could feel that they are not welcome in that polling place because they don't hold the same political views as everybody else and ultimately it could lead to the type of subtle intimidation that burson found could be could be found just by wearing a vote for pick your candidate the  interest of making sure that the polling place doesn't have political material is the exact same interest that this court found was sufficient to prohibit campaign material and i think to go back to the question of line drawing line drawing happens every single time when there's a content based restriction and the fact that there are hard calls at the edges of the line at the margin doesn't mean that the line that was drawn is unreasonable all that it means is that there are cases and there are always going to be hard cases and ultimately that's what as applied challenges are for and here the material from within as applied challenge work on election day not going to have an ass applied challenge when somebody goes to vote your honor the  as applied challenge could happen the way it happened in this case where somebody brings a lawsuit but but in the in the case where somebody wears material they either they can continue to wear it as as the petitioners did here and then go into an administrative process and say it's not political i have a right to wear this so there's an easy way for somebody who believes that the material that they're wearing is not political to have an administrative review of that if they believe that the that the election judges are acting inappropriately it suggests to me that your interest might not be terribly strong if someone's about to break the law and you say ok go ahead but you know we're going to write your name down and you know you might know the words your interest you've emphasized several times that lack of you know nothing terribly bad happens to you when you do this and that suggests to me that it's not that strong an interest you're only worried if you're not worried about intimidate and why do you let somebody go in with a button or that violates your your policy or why did you the only thing you do is write his name down your honor our the enforcement of this statute is done primarily by election judges telling people to cover up the material and that has been sufficient in minnesota to deal with  the argument or is that in some different room no your honor it happens it happens we're right in the same room with it seems to me that's more disruptive than werther's or you're on a minnesota hasn't found it to be disruptive that it's that it's a quick conversation will be much we're we're we're trying to understand how this thing works certainly we just said that is not you say a quick conversation then the other judge comes over than intervene that's going to take at least ten minutes and so i'm sitting there waiting in line for i want to hear all this stuff you honor if there was if there was such a discussion as that what would happen is it would they would take it to a different a different area to mr rogan i assume that the real work of this statute has been done by the fact that people know about it and so people just don't wear these things for the most part and you're always going to have cases where people don't know about it or maybe they want to challenge it but those are going to be few and far between and and the real work is that people just approach the polling place in a different kind of way that's correct your honor and in minnesota that that is exactly what happens and it's and it makes it so that the voting process is one that minnesotans can be proud of we often lead the nation in electoral turnout we have elections that have a high degree of integrity we've had multiple statewide recounts that have not had any issues regarding the whether or not somebody was whether or not political material was it was in the polling place this statute has worked it's worked well for more than one hundred years and the the the the rule that is laid out makes it clear that it's only political material that is going to be something that is advocating for electoral choice opposes a group of people want to make a statement about a political issue not a political candidate but a political issue and they say we're going to do that by wearing all white on the election day when we go to the polls will that be allowed under the statue yes it's not a political badge button or insignia that it has doesn't express a view on a political issue it might it might express a view on a political issue but it's not a political badge button or insignia and insignia is a distinguishing mark it would have to have symbols or or letters associated with it so an article of clothing by itself in general is not going to be sufficient to be a political or to it to be something that would be under the statute understood as a political badge button or insignia so if a shirt has hash tag  to that would be allowed or not allowed your honor that would be that that would be a and insignia and if that was an issue in elections in that polling place that would be political the we know what from from the campaigns that have that have occurred that this is not done in a vacuum this is done on election day by election judges who are in that community who are aware of what the political issues are and what the political candidates are this is the statutes limited in the same way that campaign speech is limited it's limited by those individuals who are on the ballot and and the issues that they've brought up for example the senate so i honor i think constitutionally we could i think that that's exactly what the plaza rule for this court is that you can make it broader in a nonpublic form you can make it broader than the the line that minnesota is drawn it's just a line that we have drawn statute does affect millions of people that go to the polls in minnesota polling places absentee ballot locations throughout the state for forty six days prior to the election and so what you just heard i believe is that there is going to be an effect of has to be connected to an electoral choice in that election yes your honor and that's what they're saying now but throughout this litigation the lower court's view this is going towards all political views their position for seven years has been it covers all political views and i believe they said that here as well and the election day policy in both the statute are clear that it covers everything political there's no qualification on the term political as applied challenges to deal this would result in the end this endless series of adjudications either in the polling place itself or in courts later on in the meantime legitimate protected speech and self expression like the second amendment on a shirt would be chilled and that's the purpose of the over breath doctor who you have one person who says that this process delayed him five hours and the process you institute there's going to be an aberration your adversary most of the time this goes by very quickly most of the time the election judge will never tells the winner please cover up your butt or take it off and people do that so do we rule for the operation or do we rule for the norm i think you have to look at the evidence in the record your honor and this is the evidence we have on foresman we have two people that were told they either had to remove their clothing or have their name and address taken down for potential prosecution in order to vote we also have a number of other people after the two thousand and ten election that didn't even try to wear apparel because they were afraid of fauresmith that's what they joined appendix at page mean i'm sorry let's not forget who these people were and what they were wearing these id which for some people was a highly charged political message before the court but it wasn't just a live audience it wasn't just the buttons you're on or how many incidences involving the examples that justice alito raised have been reported of people in the soda people wearing a button like an organizational chamber of commerce we don't we don't have record evidence of a button that would say that but we do have record evidence of slogans like don't tread on me liberty that type of thing with the tea party and we also have the election day policy which the state says we are going to enforce the law is that it is out and out i mean the read the whole first about that you have freedom of thought of expression of communication of petition it's a process and part of the process that allows ideas to flourish and get arguments back and forth part of the process i think should be and the founders meant it to be some thought and reflection and so here they've said the last moment in a world where we know how much argument there is an election that starts nineteen years before and ends up in every conceivable place we want to carve out one hundred feet where this decision is going to be made and say to the person making it think it won't always work maybe it hardly ever works but they're trying and they're saying of course there will be some problems so there have been none virtually none in minnesota for one hundred years you see my question yes your honor in there and there are legitimate interest in the polling place in the right to vote no one questions out the problem here is that statute just goes too far the appropriate result in this case is to invalidate the third sentence of the statute give the minnesota legislature another chance to draw from the drop more narrowly drawn statute if it wants to continue to have an apparel ban thank you counsel