(Slip Opinion) OCTOBER TERM, 2017 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MINNESOTA VOTERS ALLIANCE ET AL. v. MANSKY 

ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 16–1435. Argued February 28, 2018—Decided June 14, 2018 

Minnesota law prohibits individuals, including voters, from wearing a

“political badge, political button, or other political insignia” inside a 

polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017).

This “political apparel ban” covers articles of clothing and accessories 

with political insignia upon them. State election judges have the authority to decide whether a particular item falls within the ban. Violators are subject to a civil penalty or prosecution for a petty misdemeanor. 

Days before the November 2010 election, petitioner Minnesota Voters Alliance (MVA) and other plaintiffs challenged the ban in Federal 

District Court on First Amendment grounds. In response to the lawsuit, the State distributed an Election Day Policy to election officials 

providing guidance on enforcement of the ban. The Election Day Policy specified examples of prohibited apparel to include items displaying the name of a political party, items displaying the name of a candidate, items supporting or opposing a ballot question, “[i]ssue 

oriented material designed to influence or impact voting,” and 

“[m]aterial promoting a group with recognizable political views.”

App. to Pet. for Cert. I–1 to I–2. On Election Day, some voters ran

into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a “Please I. D. 

Me” button and a T-shirt bearing the words “Don’t Tread on Me” and

a Tea Party Patriots logo.

MVA and the other plaintiffs argued that the ban was unconstitutional both on its face and as applied to their particular items of apparel. The District Court granted the State’s motion to dismiss, and

the Eighth Circuit affirmed the dismissal of the facial challenge and 
 

 

2 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Syllabus 

remanded the case for further proceedings on the as-applied challenge. The District Court granted summary judgment to the State on

the as-applied challenge, and the Eighth Circuit affirmed. MVA, 

Cilek, and petitioner Susan Jeffers (collectively MVA) petitioned for

review of their facial First Amendment claim only. 

Held: Minnesota’s political apparel ban violates the Free Speech Clause

of the First Amendment. Pp. 7–19.

(a) Because the political apparel ban applies only in a specific location—the interior of a polling place—it implicates the Court’s “ ‘forum 

based’ approach for assessing restrictions that the government seeks 

to place on the use of its property.” International Soc. for Krishna 

Consciousness, Inc. v. Lee, 505 U. S. 672, 678. A polling place in

Minnesota qualifies as a nonpublic forum under the Court’s precedents. As such it may be subject to content-based restrictions on 

speech, see, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc.,

473 U. S. 788, 806–811, so long as the restrictions are “reasonable

and not an effort to suppress expression merely because public officials oppose the speaker’s view,” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46. Because the text of the statute makes 

no distinction based on the speaker’s political persuasion, the question is whether the apparel ban is “reasonable in light of the purpose

served by the forum”: voting. Cornelius, 473 U. S., at 806. Pp. 7–9.

(b) Minnesota’s prohibition on political apparel serves a permissible objective. In Burson v. Freeman, 504 U. S. 191, the Court upheld 

a Tennessee law imposing a 100-foot zone around polling place entrances in which no person could solicit votes, distribute campaign

materials, or “display . . . campaign posters, signs or other campaign

materials.” 504 U. S., at 193–194 (plurality opinion). In finding that 

the law withstood even strict scrutiny, the Burson plurality—whose

analysis was endorsed by Justice Scalia’s opinion concurring in the

judgment—emphasized the problems of fraud, voter intimidation, 

confusion, and general disorder that had plagued polling places in the 

past. Against that historical backdrop, the plurality and Justice

Scalia upheld Tennessee’s determination that a campaign-free zone

outside the polls was necessary to secure the advantages of the secret 

ballot and protect the right to vote. 

MVA argues that Burson considered only active campaigning outside the polling place by campaign workers and others trying to engage voters approaching the polls, while Minnesota’s ban prohibits

passive self-expression by voters themselves when voting. But although the plurality and Justice Scalia in Burson did not expressly

address the application of the Tennessee law to apparel—or consider 

the interior of the polling place as opposed to its environs—the Tennessee law swept broadly to ban even the plain “display” of a cam-
 

 

 

Cite as: 585 U. S. ____ (2018) 3 

Syllabus 

paign-related message, and the Burson Court upheld the law in full.

The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the polling 

place, id., at 210, suggests an interest more significant, not less,

within that place. 

No basis exists for rejecting Minnesota’s determination that some

forms of campaign advocacy should be excluded from the polling

place in order to set it aside as “an island of calm in which voters can 

peacefully contemplate their choices.” Brief for Respondents 43.

Casting a vote is a weighty civic act, and the State may reasonably

decide that the interior of the polling place should reflect the distinction between voting and campaigning. And while the Court has noted the “nondisruptive” nature of expressive apparel in more mundane 

settings, see, e.g., Board of Airport Comm’rs of Los Angeles v. Jews 

for Jesus, Inc., 482 U. S. 569, 576, those observations do not speak to

the unique context of a polling place on Election Day. Pp. 9–12.

(c) But the line the State draws must be reasonable. The State 

therefore must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. The unmoored 

use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and 

representations to this Court, cause Minnesota’s restriction to fail 

this test. 

The statute does not define the term “political,” a word that can

broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New 

International Dictionary 1755. The State argues that the apparel

ban should be interpreted more narrowly to proscribe “only words

and symbols that an objectively reasonable observer would perceive 

as conveying a message about the electoral choices at issue in [the]

polling place.” Brief for Respondents 13. At the same time, the State 

argues that the category of “political” apparel is not limited to campaign apparel.

The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope

of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of

what messages are banned under that standard, the State points to

the Election Day Policy. The first three categories of prohibited items 

in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions 

than it answers. The State takes the position that any subject on

which a political candidate or party has taken a stance qualifies as

an “issue” within the meaning of that category. Such a rule—whose 
 

 

 

 

4 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Syllabus 

fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on 

the ballot—is not reasonable. 

The next broad category in the Election Day Policy—any item 

“promoting a group with recognizable political views”—makes matters worse. The State does not confine that category to groups that

have endorsed a candidate or taken a position on a ballot question.

As a result, any number of associations, educational institutions,

businesses, and religious organizations could have an opinion on an

“issue confronting voters.” The State represents that the ban is limited to apparel promoting groups with “well-known” political positions. But that requirement only increases the potential for erratic

application, as its enforcement may turn in significant part on the 

background knowledge of the particular election judge applying it. 

It is “self-evident” that an indeterminate prohibition carries with it

“[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576. 

The discretion election judges exercise in enforcing the ban must be 

guided by objective, workable standards. Without them, an election 

judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a

polling place free of distraction and disruption would be undermined 

by the very measure intended to further it. Thus, if a State wishes to 

set its polling places apart as areas free of partisan discord, it must

employ a more discernible approach than the one offered by Minnesota here. Pp. 12–19. 

 849 F. 3d 749, reversed and remanded. 

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, 

THOMAS, GINSBURG, ALITO, KAGAN, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined. 
 

 

_________________ 

_________________ 

Cite as: 585 U. S. ____ (2018) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 16–1435 

MINNESOTA VOTERS ALLIANCE, ET AL., 

PETITIONERS v. JOE MANSKY, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT
 

[June 14, 2018] 

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court. 

Under Minnesota law, voters may not wear a political

badge, political button, or anything bearing political insignia inside a polling place on Election Day. The question

presented is whether this ban violates the Free Speech 

Clause of the First Amendment. 

I 

A 

Today, Americans going to their polling places on Election Day expect to wait in a line, briefly interact with an

election official, enter a private voting booth, and cast an

anonymous ballot. Little about this ritual would have 

been familiar to a voter in the mid-to-late nineteenth 

century. For one thing, voters typically deposited privately prepared ballots at the polls instead of completing 

official ballots on-site. These pre-made ballots often took

the form of “party tickets”—printed slates of candidate 

selections, often distinctive in appearance, that political 

parties distributed to their supporters and pressed upon 

others around the polls. See E. Evans, A History of the 
 

 

2 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

Australian Ballot System in the United States 6–11 (1917) 

(Evans); R. Bensel, The American Ballot Box in the MidNineteenth Century 14–15 (2004) (Bensel).

The physical arrangement confronting the voter was

also different. The polling place often consisted simply of

a “voting window” through which the voter would hand his

ballot to an election official situated in a separate room 

with the ballot box. Bensel 11, 13; see, e.g., C. Rowell, 

Digest of Contested-Election Cases in the Fifty-First 

Congress 224 (1891) (report of Rep. Lacey) (considering 

whether “the ability to reach the window and actually

tender the ticket to the [election] judges” is “essential in

all cases to constitute a good offer to vote”); Holzer, Election Day 1860, Smithsonian Magazine (Nov. 2008), pp. 46,

52 (describing the interior voting window on the third floor

of the Springfield, Illinois courthouse where Abraham

Lincoln voted). As a result of this arrangement, “the 

actual act of voting was usually performed in the open,”

frequently within view of interested onlookers. Rusk, The 

Effect of the Australian Ballot Reform on Split Ticket

Voting: 1876–1908, Am. Pol. Sci. Rev. 1220, 1221 (1970)

(Rusk); see Evans 11–13.

As documented in Burson v. Freeman, 504 U. S. 191 

(1992), “[a]pproaching the polling place under this system 

was akin to entering an open auction place.” Id., at 202 

(plurality opinion). The room containing the ballot boxes 

was “usually quiet and orderly,” but “[t]he public space 

outside the window . . . was chaotic.” Bensel 13. Electioneering of all kinds was permitted. See id., at 13, 16–17; R. 

Dinkin, Election Day: A Documentary History 19 (2002).

Crowds would gather to heckle and harass voters who

appeared to be supporting the other side. Indeed, “[u]nder 

the informal conventions of the period, election etiquette

required only that a ‘man of ordinary courage’ be able to

make his way to the voting window.” Bensel 20–21. “In 

short, these early elections were not a very pleasant spec-
 

 

Cite as: 585 U. S. ____ (2018) 3 

Opinion of the Court 

tacle for those who believed in democratic government.” 

Burson, 504 U. S., at 202 (plurality opinion) (internal 

quotation marks omitted). 

By the late nineteenth century, States began implementing reforms to address these vulnerabilities and 

improve the reliability of elections. Between 1888 and 

1896, nearly every State adopted the secret ballot. See id., 

at 203–205. Because voters now needed to mark their 

state-printed ballots on-site and in secret, voting moved

into a sequestered space where the voters could “deliberate and make a decision in . . . privacy.” Rusk 1221; see 

Evans 35; 1889 Minn. Stat. ch. 3, §§27–28, p. 21 (regulating, as part of Minnesota’s secret ballot law, the arrangement of voting compartments inside the polling place). In 

addition, States enacted “viewpoint-neutral restrictions on 

election-day speech” in the immediate vicinity of the polls. 

Burson, 504 U. S., at 214–215 (Scalia, J., concurring in

judgment) (by 1900, 34 of 45 States had such restrictions).

Today, all 50 States and the District of Columbia have 

laws curbing various forms of speech in and around polling places on Election Day.

Minnesota’s such law contains three prohibitions, only 

one of which is challenged here. See Minn. Stat. 

§211B.11(1) (Supp. 2017). The first sentence of 

§211B.11(1) forbids any person to “display campaign

material, post signs, ask, solicit, or in any manner try to

induce or persuade a voter within a polling place or within 

100 feet of the building in which a polling place is situated” to “vote for or refrain from voting for a candidate or

ballot question.” The second sentence prohibits the distribution of “political badges, political buttons, or other

political insignia to be worn at or about the polling place.” 

The third sentence—the “political apparel ban”—states 

that a “political badge, political button, or other political

insignia may not be worn at or about the polling place.” 

Versions of all three prohibitions have been on the books 
 

4 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

in Minnesota for over a century. See 1893 Minn. Laws ch. 

4, §108, pp. 51–52; 1912 Minn. Laws, 1st Spec. Sess., ch. 3, 

p. 24; 1988 Minn. Laws ch. 578, Art. 3, §11, p. 594 (reenacting the prohibitions as part of §211B.11). 

There is no dispute that the political apparel ban applies only within the polling place, and covers articles of 

clothing and accessories with “political insignia” upon

them. Minnesota election judges—temporary government 

employees working the polls on Election Day—have the

authority to decide whether a particular item falls within 

the ban. App. to Pet. for Cert. I–1. If a voter shows up

wearing a prohibited item, the election judge is to ask the 

individual to conceal or remove it. Id., at I–2. If the individual refuses, the election judge must allow him to vote, 

while making clear that the incident “will be recorded and

referred to appropriate authorities.” Ibid. Violators are 

subject to an administrative process before the Minnesota

Office of Administrative Hearings, which, upon finding a

violation, may issue a reprimand or impose a civil penalty. 

Minn. Stat. §§211B.32, 211B.35(2) (2014). That administrative body may also refer the complaint to the county

attorney for prosecution as a petty misdemeanor; the

maximum penalty is a $300 fine. §§211B.11(4) (Supp.

2017), 211B.35(2) (2014), 609.02(4a) (2016). 

B 

Petitioner Minnesota Voters Alliance (MVA) is a nonprofit organization that “seeks better government through

election reforms.” Pet. for Cert. 5. Petitioner Andrew 

Cilek is a registered voter in Hennepin County and the

executive director of MVA; petitioner Susan Jeffers served

in 2010 as a Ramsey County election judge. Five days 

before the November 2010 election, MVA, Jeffers, and 

other likeminded groups and individuals filed a lawsuit in

Federal District Court challenging the political apparel 

ban on First Amendment grounds. The groups—calling 
 

Cite as: 585 U. S. ____ (2018) 5 

Opinion of the Court 

themselves “Election Integrity Watch” (EIW)—planned to

have supporters wear buttons to the polls printed with the 

words “Please I. D. Me,” a picture of an eye, and a telephone number and web address for EIW. (Minnesota law

does not require individuals to show identification to vote.)

One of the individual plaintiffs also planned to wear a

“Tea Party Patriots” shirt. The District Court denied the 

plaintiffs’ request for a temporary restraining order and 

preliminary injunction and allowed the apparel ban to

remain in effect for the upcoming election.

In response to the lawsuit, officials for Hennepin and

Ramsey Counties distributed to election judges an “Election Day Policy,” providing guidance on the enforcement of 

the political apparel ban. The Minnesota Secretary of 

State also distributed the Policy to election officials 

throughout the State. The Policy specified that examples

of apparel falling within the ban “include, but are not

limited to”: 

“• Any item including the name of a political party in 

Minnesota, such as the Republican, [DemocraticFarmer-Labor], Independence, Green or Libertarian parties. 

• Any item including the name of a candidate at any 

election. 

• Any item in support of or opposition to a ballot 

question at any election. 

• Issue oriented material designed to influence or

impact voting (including specifically the ‘Please 

I. D. Me’ buttons). 

• Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org,

and so on).” App. to Pet. for Cert. I–1 to I–2. 

As alleged in the plaintiffs’ amended complaint and 
 

6 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

supporting declarations, some voters associated with EIW 

ran into trouble with the ban on Election Day. One individual was asked to cover up his Tea Party shirt. Another 

refused to conceal his “Please I. D. Me” button, and an 

election judge recorded his name and address for possible 

referral. And petitioner Cilek—who was wearing the 

same button and a T-shirt with the words “Don’t Tread on 

Me” and the Tea Party Patriots logo—was twice turned

away from the polls altogether, then finally permitted to

vote after an election judge recorded his information. 

Back in court, MVA and the other plaintiffs (now joined

by Cilek) argued that the ban was unconstitutional both

on its face and as applied to their apparel. The District 

Court granted the State’s motions to dismiss, and the 

Court of Appeals for the Eighth Circuit affirmed in part

and reversed in part. Minnesota Majority v. Mansky, 708 

F. 3d 1051 (2013). In evaluating MVA’s facial challenge, 

the Court of Appeals observed that this Court had previously upheld a state law restricting speech “related to a

political campaign” in a 100-foot zone outside a polling 

place; the Court of Appeals determined that Minnesota’s

law likewise passed constitutional muster. Id., at 1056– 

1058 (quoting Burson, 504 U. S., at 197 (plurality opinion)). The Court of Appeals reversed the dismissal of the

plaintiffs’ as-applied challenge, however, finding that the 

District Court had improperly considered matters outside 

the pleadings. 708 F. 3d, at 1059. Judge Shepherd concurred in part and dissented in part. In his view, Minnesota’s broad restriction on political apparel did not “rationally and reasonably” serve the State’s asserted 

interests. Id., at 1062. On remand, the District Court 

granted summary judgment for the State on the asapplied challenge, and this time the Court of Appeals

affirmed. Minnesota Majority v. Mansky, 849 F. 3d 749 

(2017).

MVA, Cilek, and Jeffers (hereinafter MVA) petitioned 
Cite as: 585 U. S. ____ (2018) 7 

Opinion of the Court 

for review of their facial First Amendment claim only. We 

granted certiorari. 583 U. S. ___ (2017). 

II 

The First Amendment prohibits laws “abridging the

freedom of speech.” Minnesota’s ban on wearing any 

“political badge, political button, or other political insignia” plainly restricts a form of expression within the protection of the First Amendment. 

But the ban applies only in a specific location: the interior of a polling place. It therefore implicates our “‘forum

based’ approach for assessing restrictions that the government seeks to place on the use of its property.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 

U. S. 672, 678 (1992) (ISKCON). Generally speaking, our 

cases recognize three types of government-controlled

spaces: traditional public forums, designated public forums, and nonpublic forums. In a traditional public forum—parks, streets, sidewalks, and the like—the government may impose reasonable time, place, and manner 

restrictions on private speech, but restrictions based on

content must satisfy strict scrutiny, and those based on 

viewpoint are prohibited. See Pleasant Grove City v. 

Summum, 555 U. S. 460, 469 (2009). The same standards 

apply in designated public forums—spaces that have “not 

traditionally been regarded as a public forum” but which

the government has “intentionally opened up for that 

purpose.” Id., at 469–470. In a nonpublic forum, on the 

other hand—a space that “is not by tradition or designation a forum for public communication”—the government

has much more flexibility to craft rules limiting speech. 

Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 

37, 46 (1983). The government may reserve such a forum

“for its intended purposes, communicative or otherwise, as 

long as the regulation on speech is reasonable and not an

effort to suppress expression merely because public offi-
 

 

 

8 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

cials oppose the speaker’s view.” Ibid. 

This Court employs a distinct standard of review to

assess speech restrictions in nonpublic forums because the 

government, “no less than a private owner of property,” 

retains the “power to preserve the property under its 

control for the use to which it is lawfully dedicated.” 

Adderley v. Florida, 385 U. S. 39, 47 (1966). “Nothing in

the Constitution requires the Government freely to grant

access to all who wish to exercise their right to free speech 

on every type of Government property without regard to

the nature of the property or to the disruption that might

be caused by the speaker’s activities.” Cornelius v. 

NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 

799–800 (1985). Accordingly, our decisions have long

recognized that the government may impose some contentbased restrictions on speech in nonpublic forums, including restrictions that exclude political advocates and forms 

of political advocacy. See id., at 806–811; Greer v. Spock, 

424 U. S. 828, 831–833, 838–839 (1976); Lehman v. Shaker 

Heights, 418 U. S. 298, 303–304 (1974) (plurality opinion); id., at 307–308 (Douglas, J., concurring in judgment). 

A polling place in Minnesota qualifies as a nonpublic 

forum. It is, at least on Election Day, governmentcontrolled property set aside for the sole purpose of voting.

The space is “a special enclave, subject to greater restriction.” ISKCON, 505 U. S., at 680. Rules strictly

govern who may be present, for what purpose, and for how 

long. See Minn. Stat. §204C.06 (2014). And while the 

four-Justice plurality in Burson and Justice Scalia’s concurrence in the judgment parted ways over whether the 

public sidewalks and streets surrounding a polling place

qualify as a nonpublic forum, neither opinion suggested 

that the interior of the building was anything but. See 

504 U. S., at 196–197, and n. 2 (plurality opinion); id., at 

214–216 (opinion of Scalia, J.).

We therefore evaluate MVA’s First Amendment chal-
Cite as: 585 U. S. ____ (2018) 9 

Opinion of the Court 

lenge under the nonpublic forum standard. The text of the 

apparel ban makes no distinction based on the speaker’s 

political persuasion, so MVA does not claim that the ban

discriminates on the basis of viewpoint on its face. The 

question accordingly is whether Minnesota’s ban on political apparel is “reasonable in light of the purpose served by 

the forum”: voting. Cornelius, 473 U. S., at 806. 

III
 

A 

We first consider whether Minnesota is pursuing a

permissible objective in prohibiting voters from wearing 

particular kinds of expressive apparel or accessories while 

inside the polling place. The natural starting point for 

evaluating a First Amendment challenge to such a restriction is this Court’s decision in Burson, which upheld a

Tennessee law imposing a 100-foot campaign-free zone

around polling place entrances. Under the Tennessee 

law—much like Minnesota’s buffer-zone provision—no 

person could solicit votes for or against a candidate, party,

or ballot measure, distribute campaign materials, or “display . . . campaign posters, signs or other campaign materials” within the restricted zone. 504 U. S., at 193–194 

(plurality opinion). The plurality found that the law withstood even the strict scrutiny applicable to speech restrictions in traditional public forums. Id., at 211. In his 

opinion concurring in the judgment, Justice Scalia argued 

that the less rigorous “reasonableness” standard of review

should apply, and found the law “at least reasonable” in

light of the plurality’s analysis. Id., at 216. 

That analysis emphasized the problems of fraud, voter 

intimidation, confusion, and general disorder that had 

plagued polling places in the past. See id., at 200–204 

(plurality opinion). Against that historical backdrop, the 

plurality and Justice Scalia upheld Tennessee’s determination, supported by overwhelming consensus among the 
 

10 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

States and “common sense,” that a campaign-free zone

outside the polls was “necessary” to secure the advantages

of the secret ballot and protect the right to vote. Id., at 

200, 206–208, 211. As the plurality explained, “[t]he State

of Tennessee has decided that [the] last 15 seconds before 

its citizens enter the polling place should be their own, as

free from interference as possible.” Id., at 210. That was 

not “an unconstitutional choice.” Ibid. 

MVA disputes the relevance of Burson to Minnesota’s 

apparel ban. On MVA’s reading, Burson considered only 

“active campaigning” outside the polling place by campaign workers and others trying to engage voters approaching the polls. Brief for Petitioners 36–37. Minnesota’s law, by contrast, prohibits what MVA characterizes as 

“passive, silent” self-expression by voters themselves when 

voting. Reply Brief 17. MVA also points out that the 

plurality focused on the extent to which the restricted zone

combated “voter intimidation and election fraud,” 504 

U. S., at 208—concerns that, in MVA’s view, have little to 

do with a prohibition on certain types of voter apparel. 

Campaign buttons and apparel did come up in the Burson briefing and argument, but neither the plurality nor 

Justice Scalia expressly addressed such applications of the

law.1 Nor did either opinion specifically consider the 

—————— 

1The State of Tennessee represented that its prohibition on campaign 

displays extended both to items of apparel and to voters. Tr. of Oral 

Arg. in No. 90–1056, p. 33 (argument of Atty. Gen. Burson) (explaining

that the statute banned “[t]ee-shirts,” “campaign buttons,” and “hats”

because such items “implicate and invite the same problems,” and that

voters would be “asked to take campaign button[s] off as they go in”); 

see Brief for State of Tennessee et al. as Amici Curiae 3, 28–30, and 

n. 3 (making the same representation in the present case). The Burson 

plaintiff also emphasized that the Tennessee law would cover apparel, 

including apparel worn by voters, see Brief for Respondent in No. 90–

1056, p. 3; Tr. of Oral Arg. in No. 90–1056, p. 21, and Justice Stevens in

dissent referred to the application of the law to campaign buttons, see 

Burson, 504 U. S., at 218–219, 224. 
 

Cite as: 585 U. S. ____ (2018) 11 

Opinion of the Court 

interior of the polling place as opposed to its environs, and

it is true that the plurality’s reasoning focused on campaign activities of a sort not likely to occur in an area 

where, for the most part, only voters are permitted while

voting. At the same time, Tennessee’s law swept broadly 

to ban even the plain “display” of a campaign-related

message, and the Court upheld the law in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the 

polling place suggests an interest more significant, not 

less, within that place. Id., at 210. 

In any event, we see no basis for rejecting Minnesota’s 

determination that some forms of advocacy should be

excluded from the polling place, to set it aside as “an 

island of calm in which voters can peacefully contemplate

their choices.” Brief for Respondents 43. Casting a vote is 

a weighty civic act, akin to a jury’s return of a verdict, or a

representative’s vote on a piece of legislation. It is a time 

for choosing, not campaigning. The State may reasonably

decide that the interior of the polling place should reflect

that distinction. 

To be sure, our decisions have noted the “nondisruptive” 

nature of expressive apparel in more mundane settings. 

Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, 

Inc., 482 U. S. 569, 576 (1987) (so characterizing “the 

wearing of a T-shirt or button that contains a political 

message” in an airport); Tinker v. Des Moines Independent 

Community School Dist., 393 U. S. 503, 508 (1969) (students wearing black armbands to protest the Vietnam War 

engaged in “silent, passive expression of opinion, unaccompanied by any disorder or disturbance”). But those 

observations do not speak to the unique context of a polling place on Election Day. Members of the public are

brought together at that place, at the end of what may 

have been a divisive election season, to reach considered 

decisions about their government and laws. The State 
 

 

12 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

may reasonably take steps to ensure that partisan discord 

not follow the voter up to the voting booth, and distract

from a sense of shared civic obligation at the moment

it counts the most. That interest may be thwarted by

displays that do not raise significant concerns in other 

situations. 

Other States can see the matter differently, and some 

do.2 The majority, however, agree with Minnesota that at

least some kinds of campaign-related clothing and accessories should stay outside. 3 That broadly shared judgment is entitled to respect. Cf. Burson, 504 U. S., at 206 

(plurality opinion) (finding that a “widespread and timetested consensus” supported the constitutionality of campaign buffer zones).

Thus, in light of the special purpose of the polling place

itself, Minnesota may choose to prohibit certain apparel 

there because of the message it conveys, so that voters 

may focus on the important decisions immediately at

hand. 

B 

But the State must draw a reasonable line. Although

there is no requirement of narrow tailoring in a nonpublic 

forum, the State must be able to articulate some sensible 

—————— 

2See, e.g., Ala. Secretary of State, 2018 Alabama Voter Guide 14 

(voters may wear “campaign buttons or T-shirts with political advertisements”); 2018 Va. Acts ch. 700, §1 (prohibitions on exhibiting

campaign material “shall not be construed” to prohibit a voter “from

wearing a shirt, hat, or other apparel on which a candidate’s name or a

political slogan appears or from having a sticker or button attached to 

his apparel on which a candidate’s name or a political slogan appears”);

R. I. Bd. of Elections, Rules and Regulations for Polling Place Conduct 3 

(2016) (voters may “display or wear any campaign or political party

button, badge or other document or item designed or tending to aid, 

injure or defeat any candidate for public office or any political party or 

any question,” but they must “immediately exit the polling location

without unreasonable delay” after voting). 3See Appendix, infra. 
 

Cite as: 585 U. S. ____ (2018) 13 

Opinion of the Court 

basis for distinguishing what may come in from what must 

stay out. See Cornelius, 473 U. S., at 808–809. Here, the 

unmoored use of the term “political” in the Minnesota law, 

combined with haphazard interpretations the State has 

provided in official guidance and representations to this 

Court, cause Minnesota’s restriction to fail even this forgiving test.

Again, the statute prohibits wearing a “political badge,

political button, or other political insignia.” It does not 

define the term “political.” And the word can be expansive. It can encompass anything “of or relating to government, a government, or the conduct of governmental affairs,” Webster’s Third New International Dictionary 1755

(2002), or anything “[o]f, relating to, or dealing with the 

structure or affairs of government, politics, or the state,”

American Heritage Dictionary 1401 (3d ed. 1996). Under 

a literal reading of those definitions, a button or T-shirt

merely imploring others to “Vote!” could qualify. 

The State argues that the apparel ban should not be

read so broadly. According to the State, the statute does 

not prohibit “any conceivably ‘political’ message” or cover 

“all ‘political’ speech, broadly construed.” Brief for Respondents 21, 23. Instead, the State interprets the ban to

proscribe “only words and symbols that an objectively

reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling 

place.” Id., at 13; see id., at 19 (the ban “applies not to any 

message regarding government or its affairs, but to messages relating to questions of governmental affairs facing

voters on a given election day”).

At the same time, the State argues that the category of 

“political” apparel is not limited to campaign apparel.

After all, the reference to “campaign material” in the first

sentence of the statute—describing what one may not 

“display” in the buffer zone as well as inside the polling 

place—implies that the distinct term “political” should be 
 

14 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

understood to cover a broader class of items. As the 

State’s counsel explained to the Court, Minnesota’s law 

“expand[s] the scope of what is prohibited from campaign 

speech to additional political speech.” Tr. of Oral Arg. 50.

We consider a State’s “authoritative constructions” in 

interpreting a state law. Forsyth County v. Nationalist 

Movement, 505 U. S. 123, 131 (1992). But far from clarifying the indeterminate scope of the political apparel provision, the State’s “electoral choices” construction introduces 

confusing line-drawing problems. Cf. Jews for Jesus, 482 

U. S., at 575–576 (a resolution banning all “First Amendment activities” in an airport could not be saved by a

“murky” construction excluding “airport-related” activity).

For specific examples of what is banned under its

standard, the State points to the 2010 Election Day Policy—which it continues to hold out as authoritative guidance regarding implementation of the statute. See Brief 

for Respondents 22–23. The first three examples in the 

Policy are clear enough: items displaying the name of a 

political party, items displaying the name of a candidate,

and items demonstrating “support of or opposition to a

ballot question.” App. to Pet. for Cert. I–2. 

But the next example—“[i]ssue oriented material designed to influence or impact voting,” id., at I–2—raises 

more questions than it answers. What qualifies as an 

“issue”? The answer, as far as we can tell from the State’s 

briefing and argument, is any subject on which a political 

candidate or party has taken a stance. See Tr. of Oral 

Arg. 37 (explaining that the “electoral choices” test looks 

at the “issues that have been raised” in a campaign “that 

are relevant to the election”). For instance, the Election 

Day Policy specifically notes that the “Please I. D. Me” 

buttons are prohibited. App. to Pet. for Cert. I–2. But a 

voter identification requirement was not on the ballot in 

2010, see Brief for Respondents 47, n. 24, so a Minnesotan

would have had no explicit “electoral choice” to make in 
Cite as: 585 U. S. ____ (2018) 15 

Opinion of the Court 

that respect. The buttons were nonetheless covered, the 

State tells us, because the Republican candidates for 

Governor and Secretary of State had staked out positions 

on whether photo identification should be required. Ibid.; 

see App. 58–60.4 

A rule whose fair enforcement requires an election judge

to maintain a mental index of the platforms and positions

of every candidate and party on the ballot is not reasonable. Candidates for statewide and federal office and major 

political parties can be expected to take positions on a

wide array of subjects of local and national import. See, 

e.g., Democratic Platform Committee, 2016 Democratic 

Party Platform (approved July 2016) (stating positions on

over 90 issues); Republican Platform Committee, Republican Platform 2016 (approved July 2016) (similar). Would 

a “Support Our Troops” shirt be banned, if one of the 

candidates or parties had expressed a view on military 

funding or aid for veterans? What about a “#MeToo” shirt, 

referencing the movement to increase awareness of sexual 

harassment and assault? At oral argument, the State

indicated that the ban would cover such an item if a candidate had “brought up” the topic. Tr. of Oral Arg. 64–65.

The next broad category in the Election Day Policy—any

item “promoting a group with recognizable political

views,” App. to Pet. for Cert. I–2—makes matters worse. 

The State construes the category as limited to groups with

“views” about “the issues confronting voters in a given

election.” Brief for Respondents 23. The State does not, 

—————— 

4The State also maintains that the “Please I. D. Me” buttons were 

properly banned because the buttons were designed to confuse other 

voters about whether they needed photo identification to vote. Brief for 

Respondents 46–47. We do not doubt that the State may prohibit

messages intended to mislead voters about voting requirements and 

procedures. But that interest does not align with the State’s construction of “political” to refer to messages “about the electoral choices at 

issue in [the] polling place.” Id., at 13. 
 

 

 

16 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

however, confine that category to groups that have endorsed a candidate or taken a position on a ballot 

question.

Any number of associations, educational institutions,

businesses, and religious organizations could have an

opinion on an “issue[] confronting voters in a given election.” For instance, the American Civil Liberties Union, 

the AARP, the World Wildlife Fund, and Ben & Jerry’s all 

have stated positions on matters of public concern.5 If the 

views of those groups align or conflict with the position of 

a candidate or party on the ballot, does that mean that

their insignia are banned? See id., at 24, n. 15 (representing that “AFL–CIO or Chamber of Commerce apparel” 

would be banned if those organizations “had objectively 

recognizable views on an issue in the election at hand”). 

Take another example: In the run-up to the 2012 election, 

Presidential candidates of both major parties issued public 

statements regarding the then-existing policy of the Boy

Scouts of America to exclude members on the basis of 

sexual orientation.6 Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked 

—————— 

5See, e.g., American Civil Liberties Union, Campaign for Smart Justice (2018), online at http://www.aclu.org/issues/mass-incarceration/

smart-justice/campaign-smart-justice (taking positions on criminal 

justice reform) (all Internet materials as last visited June 11, 2018);

AARP, Government & Elections, online at https://www.aarp.org/

politics-society/government-elections/ (listing positions on Social Security and health care); World Wildlife Fund, A Win on Capitol Hill

(Apr. 17, 2018), online at https://www.worldwildlife.org/stories/a-winon-capitol-hill (describing the organization’s position on federal funding 

for international conservation programs); Ben & Jerry’s, Issues We 

Care About, online at https://www.benjerry.com/values/issues-we-careabout (sharing the corporation’s views on campaign finance reform,

international conflict, and civil rights). 6C. Camia, Obama, Romney Opposed to Boy Scouts Ban on Gays, 

USA Today OnPolitics (updated Aug. 08, 2012), online at 

http://content.usatoday.com/communities/onpolitics/post/2012/08/barackobama-boy-scouts-gays-mitt-romney-/1. 
 

Cite as: 585 U. S. ____ (2018) 17 

Opinion of the Court 

to cover up his uniform? 

The State emphasizes that the ban covers only apparel

promoting groups whose political positions are sufficiently 

“well-known.” Tr. of Oral Arg. 37. But that requirement,

if anything, only increases the potential for erratic application. Well known by whom? The State tells us the 

lodestar is the “typical observer” of the item. Brief for 

Respondents 21. But that measure may turn in significant part on the background knowledge and media consumption of the particular election judge applying it. 

The State’s “electoral choices” standard, considered 

together with the nonexclusive examples in the Election 

Day Policy, poses riddles that even the State’s top lawyers 

struggle to solve. A shirt declaring “All Lives Matter,” we

are told, could be “perceived” as political. Tr. of Oral Arg. 

41. How about a shirt bearing the name of the National 

Rifle Association? Definitely out. Id., at 39–40. That 

said, a shirt displaying a rainbow flag could be worn “unless there was an issue on the ballot” that “related somehow . . . to gay rights.” Id., at 38 (emphasis added). A 

shirt simply displaying the text of the Second Amendment? Prohibited. Id., at 40. But a shirt with the text of 

the First Amendment? “It would be allowed.” Ibid. 

“[P]erfect clarity and precise guidance have never been 

required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U. S. 781, 794 

(1989). But the State’s difficulties with its restriction go 

beyond close calls on borderline or fanciful cases. And 

that is a serious matter when the whole point of the exercise is to prohibit the expression of political views.

It is “self-evident” that an indeterminate prohibition 

carries with it “[t]he opportunity for abuse, especially

where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576; see Heffron v. 

International Soc. for Krishna Consciousness, Inc., 452 

U. S. 640, 649 (1981) (warning of the “more covert forms of 
 

18 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Opinion of the Court 

discrimination that may result when arbitrary discretion

is vested in some governmental authority”). Election 

judges “have the authority to decide what is political” 

when screening individuals at the entrance to the polls. 

App. to Pet. for Cert. I–1. We do not doubt that the vast 

majority of election judges strive to enforce the statute in 

an evenhanded manner, nor that some degree of discretion

in this setting is necessary. But that discretion must be 

guided by objective, workable standards. Without them, 

an election judge’s own politics may shape his views on 

what counts as “political.” And if voters experience or

witness episodes of unfair or inconsistent enforcement of

the ban, the State’s interest in maintaining a polling place 

free of distraction and disruption would be undermined by

the very measure intended to further it. 

That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays 

(including apparel) in more lucid terms. See, e.g., Cal. 

Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates 

for or against any candidate or measure,” including the

“display of a candidate’s name, likeness, or logo,” the 

“display of a ballot measure’s number, title, subject, or 

logo,” and “[b]uttons, hats,” or “shirts” containing such

information); Tex. Elec. Code Ann. §61.010(a) (West 2010) 

(prohibiting the wearing of “a badge, insignia, emblem, or 

other similar communicative device relating to a candidate, measure, or political party appearing on the ballot,

or to the conduct of the election”). We do not suggest that 

such provisions set the outer limit of what a State may 

proscribe, and do not pass on the constitutionality of laws 

that are not before us. But we do hold that if a State 

wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach 
 

Cite as: 585 U. S. ____ (2018) 19 

Opinion of the Court 

than the one Minnesota has offered here.7 

* * * 

Cases like this “present[] us with a particularly difficult

reconciliation: the accommodation of the right to engage in

political discourse with the right to vote.” Burson, 504 

U. S., at 198 (plurality opinion). Minnesota, like other 

States, has sought to strike the balance in a way that 

affords the voter the opportunity to exercise his civic duty

in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions

with a law capable of reasoned application.

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

with this opinion. 

It is so ordered. 

—————— 

7The State argues that, in the event this Court concludes that there 

is a “substantial question” about the proper interpretation of 

§211B.11(1), we should postpone our decision and certify that issue to

the Minnesota Supreme Court. Brief for Respondents 57; see Minn. 

Stat. §480.065(3) (2016). The dissent takes up this cause as well. See 

post, at 1 (opinion of SOTOMAYOR, J.). The decision to certify, however, 

“rests in the sound discretion of the federal court.” Expressions Hair 

Design v. Schneiderman, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., 

concurring in judgment) (slip op., at 8). We decline to exercise that 

discretion in this instance. Minnesota’s request for certification comes 

very late in the day: This litigation had been ongoing in the federal 

courts for over seven years before the State made its certification 

request in its merits brief before this Court. See Stenberg v. Carhart, 

530 U. S. 914, 945 (2000) (noting, in denying certification, that the 

State had never asked the lower federal courts to certify). And the 

State has not offered sufficient reason to believe that certification 

would obviate the need to address the constitutional question. Our 

analysis today reflects the State’s proffered interpretation; nothing in 

that analysis would change if the State’s interpretation were also 

adopted by the Minnesota Supreme Court. Nor has the State (or the 

dissent) suggested a viable alternative construction that the Minnesota

Supreme Court might adopt instead. See Brief for Respondents 56–58; 

post, at 5–8. 
 

Opinion of the Court 

 

20 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Appendix to opinion of the Court 

APPENDIX
 

State Laws Prohibiting Accessories or Apparel in the

Polling Place* 

Alaska Alaska Stat. §§15.15.170, 

15.56.016(a)(2) (2016) 

Arkansas Ark. Code Ann. §7–1–103(a)(9) 

(Supp. 2017) 

California Cal. Elec. Code Ann. §§319.5, 18370

(West Cum. Supp. 2018) 

Colorado Colo. Rev. Stat. 

§1–13–714(1) (2017) 

Connecticut Conn. Gen. Stat. §9–236 (2017) 

Delaware Del. Code Ann., Tit. 15, 

§4942 (2015) 

District of Columbia D. C. Code §1–1001.10(b)(2) (2016);

D. C. Munic. Regs., tit. 3, §707,

65 D. C. Reg. 4504 (2018) 

Georgia Ga. Code Ann. §21–2–414(a) 

(Supp. 2017) 

Hawaii Haw. Rev. Stat. §11–132(d) (2009);

Haw. Admin. Rule §3–172–63(a) 

(2017) 

Illinois Ill. Comp. Stat., ch. 10,

§5/7–41(c) (West 2016) 

Indiana Ind. Stat. Ann. §3–14–3–16 

(Lexis 2011) 

Kansas Kan. Stat. Ann. §25–2430(a) 

(2006) 

Louisiana La. Rev. Stat. Ann. §18:1462

(West Cum. Supp. 2018) 

—————— 

*Based on statutory or regulatory language and official resources, 

where available. 
Opinion of the Court 

Cite as: 585 U. S. ____ (2018) 21 

Appendix to opinion of the Court 

Massachusetts Mass. Gen. Laws Ann. ch. 54, 

§65 (West 2007) 

Michigan Mich. Comp. Laws Ann.

§168.744 (West Cum. Supp. 2018) 

Minnesota Minn. Stat. §211B.11(1) 

(Supp. 2017) 

Mississippi Miss. Code Ann. §23–15–895 

(Cum. Supp. 2017) 

Missouri Mo. Rev. Stat. §115.637(18) (2006) 

Montana Mont. Code Ann. §13–35–211

(2017) 

Nebraska Neb. Rev. Stat. §32–1524(2)

(2016) 

Nevada Nev. Rev. Stat. §293.740

(2015) 

New Hampshire N. H. Rev. Stat. Ann. §659:43(I)

(Cum. Supp. 2017) 

New Jersey N. J. Stat. Ann. §19:34–19 

(West 2014) 

New Mexico N. M. Stat. Ann. §1–20–16 (2011) 

New York N. Y. Elec. Law Ann. §8–104(1) 

(West 2018) 

North Dakota N. D. Cent. Code Ann. 

§16.1–10–03 (2015) 

Ohio Ohio Rev. Code Ann. §3501.35(A) 

(Lexis Supp. 2018) 

South Carolina S. C. Code Ann. §7–25–180 

(2017 Cum. Supp.) 

South Dakota S. D. Codified Laws §12–18–3 

(Cum. Supp. 2017) 

Tennessee Tenn. Code Ann. §2–7–111(b)

(2014) 

Texas Tex. Elec. Code Ann. 

§61.010(a) (West 2010) 

Utah Utah Code §20A–3–501 (2017) 
 

Opinion of the Court 

22 MINNESOTA VOTERS ALLIANCE v. MANSKY 

Appendix to opinion of the Court 

Vermont Vt. Stat. Ann., Tit. 17, §2508(a)(1) 

(Cum. Supp. 2017) 

Wisconsin Wis. Stat. §12.03 (2011–2012) 
_________________ 

_________________ 

Cite as: 585 U. S. ____ (2018) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 16–1435 

MINNESOTA VOTERS ALLIANCE, ET AL., 

PETITIONERS v. JOE MANSKY, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT
 

[June 14, 2018] 

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,

dissenting. 

I agree with the Court that “[c]asting a vote is a weighty

civic act” and that “State[s] may reasonably take steps to 

ensure that partisan discord not follow the voter up to the 

voting booth,” including by “prohibit[ing] certain apparel 

[in polling places] because of the message it conveys.” 

Ante, at 11–12. I disagree, however, with the Court’s

decision to declare Minnesota’s political apparel ban unconstitutional on its face because, in its view, the ban is 

not “capable of reasoned application,” ante, at 19, when 

the Court has not first afforded the Minnesota state courts 

“‘a reasonable opportunity to pass upon’” and construe the 

statute, Babbitt v. Farm Workers, 442 U. S. 289, 308 

(1979). I would certify this case to the Minnesota Supreme Court for a definitive interpretation of the political

apparel ban under Minn. Stat. §211B.11(1) (Supp. 2017),

which likely would obviate the hypothetical line-drawing 

problems that form the basis of the Court’s decision today. 

I 

As the Court acknowledges, Minnesota adopted its

political apparel ban late in the 19th century against the 

backdrop of often “‘chaotic’” voting conditions where 

“[c]rowds would gather to heckle and harass voters who 
 

 

 

2 MINNESOTA VOTERS ALLIANCE v. MANSKY 

SOTOMAYOR, J., dissenting 

appeared to be supporting the other side.” Ante, at 2. 

Polling places became “highly charged ethnic, religious, 

and ideological battleground[s] in which individuals were 

stereotyped as friend or foe,” even “on the basis of clothing.” R. Bensel, The American Ballot Box in the MidNineteenth Century 21 (2004). As a result, States began

adopting reforms “to address these vulnerabilities and 

improve the reliability of elections.” Ante, at 3. 

Minnesota thus enacted the political apparel ban at 

issue in this case, which prohibits an individual from 

wearing “[a] political badge, political button, or other 

political insignia . . . at or about the polling place.” 

§211B.11(1). Respondents maintain that this prohibition, 

together with other election-day regulations, furthers

Minnesota’s compelling interests in (1) “maintaining 

peace, order and decorum in the polling place,” (2) “protecting voters from confusion and undue influence such as

intimidation,” and (3) “preserving the integrity of its election process.” Brief for Respondents 41 (internal quotation 

marks and alterations omitted); see Burson v. Freeman, 

504 U. S. 191, 193, 199 (1992) (plurality opinion) (recognizing such interests as compelling).

The majority accords due respect to the weight of these

state interests in concluding that there is “no basis for

rejecting Minnesota’s determination that some forms of 

advocacy should be excluded from the polling place, to set

it aside as ‘an island of calm in which voters can peacefully

contemplate their choices.’” Ante, at 11. Polling places

today may not much resemble the chaotic scenes of the

turn of the 20th century, but they remain vulnerable to

interpersonal conflicts and partisan efforts to influence

voters.* Even acts of interference that are “undetected or 

—————— 

*See, e.g., J. Johnson, Fight Breaks Out at Polling Place (Nov. 8,

2016) (describing a fight in which a voter sprayed pepper spray at a

campaign volunteer who allegedly had been handing out campaign 
 

 

Cite as: 585 U. S. ____ (2018) 3 

SOTOMAYOR, J., dissenting 

less than blatant . . . may nonetheless drive the voter 

away before remedial action can be taken.” Burson, 504 

U. S., at 207; see also Brief for Campaign Legal Center as 

Amicus Curiae 9 (noting that, “[a]bsent a ban on political

paraphernalia, [poll] workers might unintentionally exhibit 

unconscious bias against voters who wear the ‘wrong’ 

paraphernalia”). 

In holding that a polling place constitutes a nonpublic 

forum and that a State must establish only that its limitations on speech inside the polling place are reasonable, see 

ante, at 8–9, the Court goes a long way in preserving 

States’ discretion to determine what measures are appropriate to further important interests in maintaining order 

and decorum, preventing confusion and intimidation, and 

protecting the integrity of the voting process. The Court 

errs, however, in declaring Minnesota’s political apparel 

ban unconstitutional under that standard, without any 

guidance from the State’s highest court on the proper 

interpretation of that state law. Ante, at 13, 19, n. 7. 

II 

The Court invalidates Minnesota’s political apparel ban 

—————— 

materials), http://www.wpbf.com/article/fight-breaks-out-at-polling-place/

8258506 (all Internet materials as last visited June 8, 2018); R. Reilly,

A Guy in a Trump Shirt Carried a Gun Outside of a Virginia Polling

Place. Authorities Say That’s Fine (Nov. 4, 2016) (describing a man

wearing a shirt bearing the name of a candidate and carrying a weapon

outside of a polling place), https://www.huffingtonpost.com/entry/trumpsupporter-gun-voter-intimidation-virginia_us_581cf16ee4b0aac624846eb5; 

Houston Chronicle, Nov. 5, 2012, p. 2 (reporting that individuals 

wearing shirts bearing the name of a racial equality organization

allegedly were “disruptive,” “took over” a polling place, and were 

“electioneering and voicing support” for a particular candidate); Orlando

Sentinel, Nov. 8, 2006, p. A5 (reporting arrest of a poll worker who was 

“charged with assault and interfering with an election after allegedly

choking a voter and pushing him out the door”); Orlando Sentinel, Mar. 

2, 2005, p. B1 (reporting “[s]houting matches and rowdy behavior” and

“harass[ment] and intimidat[ion] at the polls”). 
 

4 MINNESOTA VOTERS ALLIANCE v. MANSKY 

SOTOMAYOR, J., dissenting 

based on its inability to define the term “political” in 

§211B.11(1), so as to discern “some sensible basis for 

distinguishing what may come in from what must stay 

out” of a polling place. Ante, at 12–13. The majority

believes that the law is not “capable of reasoned application,” ante, at 19, but it reaches that conclusion without 

taking the preferential step of first asking the state courts

to provide “an accurate picture of how, exactly, the statute

works,” Expressions Hair Design v. Schneiderman, 581 

U. S. ___, ___ (2017) (SOTOMAYOR, J., concurring in judgment) (slip op., at 5). It is a “cardinal principle” that,

“when confronting a challenge to the constitutionality of a 

. . . statute,” courts “will first ascertain whether a construction . . . is fairly possible that will contain the statute 

within constitutional bounds,” and in the context of a 

challenge to a state statute, federal courts should be particularly hesitant to speculate as to possible constructions

of the state law when “the state courts stand willing to

address questions of state law on certification.” Arizonans 

for Official English v. Arizona, 520 U. S. 43, 78–79 (1997) 

(internal quotation marks omitted); see Minn. Stat.

§480.065(3) (2016) (authorizing the Minnesota Supreme

Court to answer certified questions). Certification “save[s]

time, energy, and resources and helps build a cooperative

judicial federalism.” Lehman Brothers v. Schein, 416 U. S. 

386, 391 (1974). Neither of the majority’s proffered reasons for declining to certify this case justifies its holding. 

First, the Court notes that respondents’ “request for

certification comes very late in the day,” as the litigation

already had been ongoing for more than seven years before 

the request. Ante, at 19, n. 7. But certification is not an 

argument subject to forfeiture by the parties. It is a tool of 

the federal courts that serves to avoid “friction-generating

error” where a federal court attempts to construe a statute 

“not yet reviewed by the State’s highest court.” Arizonans 

for Official English, 520 U. S., at 79. This Court has 
Cite as: 585 U. S. ____ (2018) 5 

SOTOMAYOR, J., dissenting 

certified questions to a state court “sua sponte, even

though the parties had not sought such relief and even

though the district court and the court of appeals previously had resolved the disputed point of state law.” S. 

Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice §9.4, p. 611 (10th ed. 2013) 

(citing Elkins v. Moreno, 435 U. S. 647, 660–663, 668–669 

(1978)); see also Massachusetts v. Feeney, 429 U. S. 66 

(1976) (per curiam) (certifying a question to the Supreme 

Judicial Court of the Commonwealth of Massachusetts “on 

[the Court’s] own motion”). Respondents’ delay in asking

for certification does nothing to alter this Court’s responsibility as a matter of state-federal comity to give due 

deference to the state courts in interpreting their own

laws. 

Second, the majority maintains that respondents have

“not offered sufficient reason to believe that certification 

would obviate the need to address the constitutional question,” as “nothing in [its] analysis would change if [respondents’] interpretation were also adopted by the Minnesota Supreme Court.” Ante, at 19, n. 7. The majority

also relies on its view that respondents have not “suggested

a viable alternative construction that the Minnesota Supreme Court might adopt instead.” Ibid. To presume that 

the Minnesota Supreme Court would adopt respondents’ 

interpretation wholesale or that it could not provide a

construction of its own that is “capable of reasoned application,” ante, at 19, however, reflects precisely the “gratuitous” “‘[s]peculation . . . about the meaning of a state

statute’” that this Court has discouraged, Arizonans for 

Official English, 520 U. S., at 79. 

It is at least “fairly possible” that the state court could 

“ascertain . . . a construction . . . that will contain the 

statute within constitutional bounds.” Id., at 78 (internal 

quotation marks omitted). Ultimately, the issue comes

down to the meaning of the adjective “political,” as used to 
 

6 MINNESOTA VOTERS ALLIANCE v. MANSKY 

SOTOMAYOR, J., dissenting 

describe what constitutes a “political badge, political

button, or other political insignia.” §211B.11(1). The word 

“political” is, of course, not inherently incapable of definition. This Court elsewhere has encountered little difficulty 

discerning its meaning in the context of statutes subject to 

First Amendment challenges. See, e.g., Civil Service 

Comm’n v. Letter Carriers, 413 U. S. 548, 550–551 (1973)

(rejecting First Amendment overbreadth and vagueness

challenge to §9(a) of the Hatch Act, then codified at 5 

U. S. C. §7324(a)(2), which prohibited federal employees

from taking “‘an active part in political management or in 

political campaigns’”); Broadrick v. Oklahoma, 413 U. S. 

601, 602 (1973) (rejecting First Amendment overbreadth 

and vagueness challenge to a similar Oklahoma law that

“restricts the political activities of the State’s classified

civil servants”).

Even here, the majority recognizes a substantial amount 

of speech that “clear[ly]” qualifies as “political,” such as 

“items displaying the name of a political party, items

displaying the name of a candidate, and items demonstrating support of or opposition to a ballot question.” Ante, at 

14 (internal quotation marks omitted). The fact that the 

majority has some difficulty deciphering guidance to

§211B.11(1) that also proscribes “[i]ssue oriented material

designed to influence or impact voting” and “[m]aterial

promoting a group with recognizable political views,” App. 

to Pet. for Cert. I–2; see ante, at 14–17, does not mean 

that the statute as a whole is not subject to a construction 

that falls within constitutional bounds. As this Court has 

made clear in the context of the First Amendment overbreadth doctrine, the “mere fact” that petitioners “can 

conceive of some impermissible applications of [the] statute is not sufficient to render it” unconstitutional. United 

States v. Williams, 553 U. S. 285, 303 (2008) (internal 

quotation marks omitted). That is especially so where the

state court is capable of clarifying the boundaries of state 
 

 

 

Cite as: 585 U. S. ____ (2018) 7 

SOTOMAYOR, J., dissenting 

law in a manner that would permit the Court to engage in 

a comprehensive constitutional analysis. See, e.g., Virginia 

v. American Booksellers Assn., Inc., 484 U. S. 383 (1988) 

(certifying questions to the Virginia Supreme Court for 

clarification as to whether a state statute was readily 

susceptible to a narrowing construction that would not 

violate the First Amendment); Commonwealth v. American Booksellers Assn., Inc., 236 Va. 168, 372 S. E. 2d 618 

(1988) (responding to certification with such a narrowing

construction). 

Furthermore, the Court also should consider the history

of Minnesota’s “implementation” of the statute in evaluating the facial challenge here. Forsyth County v. Nationalist Movement, 505 U. S. 123, 131 (1992). That history

offers some assurance that the statute has not been interpreted or applied in an unreasonable manner. There is no 

evidence that any individual who refused to remove a 

political item has been prohibited from voting, and respondents maintain that no one has been referred for

prosecution for violating the provision. See Brief for Respondents 4, n. 2. Since the political apparel ban was

enacted in the late 19th century, this is the first time the 

statute has been challenged on the basis that certain 

speech is not “political.” Tr. of Oral Arg. 44. Even then, 

petitioners’ as-applied challenge was rejected by the District Court and the Court of Appeals for the Eighth Circuit. See Minnesota Majority v. Mansky, 62 F. Supp. 3d 

870, 878 (Minn. 2014); Minnesota Majority v. Mansky, 

2015 WL 13636675, *12 (D Minn., Mar. 23, 2015); Minnesota Majority v. Mansky, 849 F. 3d 749, 752–753 (CA8 

2017). Petitioners did not seek review of those claims in 

this Court. See Pet. for Cert. i. On the whole, the historical application of the law helps illustrate that the statute 

is not so “indeterminate” so as to “carr[y] with it ‘[t]he 

opportunity for abuse.’” Ante, at 17. 
 

 

8 MINNESOTA VOTERS ALLIANCE v. MANSKY 

SOTOMAYOR, J., dissenting 

III 

Especially where there are undisputedly many constitutional applications of a state law that further weighty 

state interests, the Court should be wary of invalidating a 

law without giving the State’s highest court an opportunity 

to pass upon it. See Babbitt, 442 U. S., at 309; Arizonans 

for Official English, 520 U. S., at 79. Because the Court 

declines to take the obvious step of certification in this 

case, I respectfully dissent.