Last updated on 2018-12-17
Ever the Constitution hawks, Sen. Stace Nelson (R-19/Fulton) and Rep. Drew Dennert (R-3/Aberdeen) rush to push South Dakota law beyond the envelope of a new Supreme Court precedent… and throw a bone to us petitioners to boot!
Back in June, the U.S. Supreme Court ruled in Minnesota Voters Alliance v. Mansky that Minnesota (and the rest of us) cannot broadly ban political buttons, t-shirts, and other messages at polling places. Chief Justice John Roberts wrote for the 7–2 majority that states can still restrict certain political messages at the polls, because “a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote.” Chief Justice Roberts said a polling place should be “an island of calm in which voters can peacefully contemplate their choices.” But the Court held that Minnesota had to more narrowly and clearly define the items/messages one may not display in that island of calm and eliminate any room for interpretation by local officials.
In response, the Minnesota Secretary of State issued this guidance for the 2018 general election:
“In the polling place, you cannot display campaign T-shirts, buttons or literature which relate to specific candidates, official political parties, or ballot questions on the ballot that day.”
…So, to answer Chief Justice Roberts’ question: Under the new Minnesota guidance, both “Support Our Troops” and “#MeToo” shirts would technically be allowed at polling places — unless there was a ballot question specifically relating to, say, military funding or sexual assault laws.
But candidate- or party-specific attire, like a “Make America Great Again” hat or Minnesota DFL shirt, is still banned from Minnesota polling places. According to the secretary of state’s office, if you wear such attire to the polls, you will be asked to either cover up or remove the attire while inside the polling place [Alyssa Zaczek, “Here’s What You Can (and Can’t) Wear to the Polls on Nov. 6,” Saint Cloud Times, 2018.10.25].
Senate Bill 7, filed Friday by two of the most tolerable Republicans in Pierre, goes farther than the guidance from Chief Justice Roberts and the Minnesota SOS. Senator Nelson and Representative Dennert want to legalize straight-up campaigning at the polls. SB 7 would add the following language to our current statute on electioneering at the polls:
This section does not prohibit a voter from wearing clothing or any campaign button that expresses support for or opposition to a political candidate, political issue, or ballot question while lawfully present inside or within one hundred feet of a polling place. This section does not prohibit any person from displaying a campaign poster or sign on that person’s private property or personal vehicle within one hundred feet of a polling place so long as the property or vehicle is otherwise lawfully present [2019 Senate Bill 7, language proposed to insert in SDCL 12-18-3].
Chief Justice Roberts offered free speech advocates an inch; Senate Bill 7 is trying to take a mile, or at least a furlong. Senate Bill 7 would keep statute’s current ban on soliciting any votes for or against any person or measure on the ballot at the polls. But it would allow me to recruit my 36 biggest friends, put them all in big DayGlo campaign t-shirts (or jackets—it can be cold in November) with my favorite candidates and ballot-measure positions printed boldly thereupon, have them stand legally on the sidewalk outside the courthouse door all day long shaking everyone’s hand to congratulate them on their civic spirit, and every 20 minutes send one of them in to stand in line, get a ballot, carefully fill it out, and then linger as long as politely and uninterferingly possible for some pleasant conversation with the nice little old lady supervising the ballot box where every incoming voter can see that shirt.
Senate Bill 7 would remove the possibility of the sheriff coming out to bust someone who stops in to vote but parks too close to the door with her Al Gore 2020 bumper sticker. But it will also legalize Senator Jordan Youngberg’s (R-8/Madison) tactic of driving back and forth in front of the Dakota Prairie Playhouse throughout Election Day with a big Vote Youngberg sign mounted in the bed of his pickup.
I support the First Amendment as passionately as Senator Nelson and Representative Dennert (and more consistently than many other members of their party). But as I explained in June, South Dakota’s ban on electioneering at polling places already conforms with the specificity Chief Justice Roberts demanded of Minnesota’s inferior polling-place speech ban. Senate Bill 7 is not an effort to align South Dakota’s electioneering law with last summer’s ruling; Senate Bill 7 would move us beyond MVA v. Mansky and calls for repealing free-speech restrictions that the Court said are constitutional. Nelson and Dennert will have appeal to something other than that court case to justify this portion of Senate Bill 7.
But Where’s That Petition Bone?
Nelson and Dennert do offer another provision that may find justification in MVA v. Mansky. Senate Bill 7 would allow petitioners to collect signatures outside a polling place any day but Election Day:
No A person may not engage in any practice which that interferes with the a voter’s free access to the polls or that disrupts the administration of the a polling place, or. A person may not conduct any petition signature gathering, on the day of an election, inside or within one hundred feet of a polling place. For the purposes of this section, the term, polling place, means a designated place voters may go to vote on the day of the election or go to vote absentee [2019 SB 7, proposed amendment of SDCL 12-18-3].
Read that passage from SB 7 carefully: underlines are words added; overstrikes are words deleted.
Right now, petitioners cannot stand outside the courthouse door on any day when early voting is taking place. That means that during the usual 15 days of early voting in municipal elections and 45 days of early voting before statewide primaries and general elections, petitioners can’t work one of the best places in town to get signatures.
This portion of SB 7 ends that restriction during early voting. Ending that restriction makes sense: if we’re petitioning—be it for an initiative, referendum, candidate, or formation of a new party—we’re clearly advocating for an issue that is not on the ballot that people are walking in to vote on. That’s exactly the kind of situation that the majority in MVA v. Mansky was talking about: speech relating directly to a person or issue not on the ballot and can only be interpreted as relating to something on the ballot by the subjective interpretation of local election officials.
In a remarkable demonstration of compromise, Nelson and Dennert don’t even go for the whole enchilada; they’re still willing to keep petitioners out of the island of calm on Election Day proper. Given the Supreme Court precendent and the sponsors’ willingness to compromise, I can embrace the expansion of petitioners’ rights without reservation.
But if a measure makes life easier for petitioners, you can bet Nelson’s Republican colleagues will kill it dead. Republicans might lift the t-shirt ban, only because they figure they have more t-shirt money than Democrats… but then someone from Governor Noem’s office will remind them this is a Stace Nelson bill, and they’ll vote it down.
Suspicious Porter thinks somehow this is about further infringement on women’s right to choose.
Indeed Porter from the same crowd that said this today. “Rudy: “Collusion is not a crime. It was over with before the election.” Rudy Giuliani today. trump is now admitting collusion with the Russians just that it was over before the election.
What makes Nelson, Dennert, and the south Dakota republican party feel so darn special?
These guys also want guns in the statehouse because they think the police are not adequate to defend their precious selves. In addition to the T shirts, will it be mandatory that petitioners be armed? Will the opposite T-Shirt group also have the yellow vests that are now popular with street fighters in Paris? Yellow vests versus brown shirts kind of thing.
Forget Senator Youngberg driving back and forth in front of the polling place all day. He can just get there early and park that pickup in front of the door to the polling place and leave it there all day. And he can have friends or family do the same at every other polling place in the district.
I tell you what. By the time election day comes around and people get in line they are more than ready for the campaign to be over. Any candidate who is messing with people in line – or having others mess with people in line – is going to lose votes not gain votes.
Maybe have soup and sandwiches there as well as the T shirts with them saying “take a bite out of corruption, vote Democratic” .
Porter, SB 7 appears to give women as much right to wear candidate t-shirts and circulate petitions outside the polls as men.
Roger, I’ll contend that Nelson and Dennert each feel a different kind of special from each other… and maybe from the mainstream Republicans. SB 7 doesn’t strike me as part of the Noem/McCaulley plan for further corruption and cronyism. It strikes me as just a really interesting debate about the First Amendment.
Ror, interesting suggestion that campaigning at the polls could backfire. it would be interesting (but nearly impossible, I suppose) to be able to set up a rigorous scientific experiment to test that hypothesis.
I can say that in 2016, when I walked into the polls to vote, I thought about what it would be like to wear campaign items there, to campaign visibly. The prospect of doing so didn’t feel right in that sacred space, that “island of calm.”
But it’s pretty clear that all the big campaign teams have no compunction about posting their items outside the 100-foot exclusion zone.
Cory. Would it give pro life advocates the freedom to show their fetal death dolls? The ones they show at the fair? And to tie the models to Democrats?
Ah, now we’re talking. I would suggest that SDCL 12-18-3 already permits one to walk into the polls carrying a doll. SDCL 12-18-3 would not allow one to write “Don’t vote for Dems” on said doll. SB 7 would allow shirts and buttons… but not advocative dolls.
Mr. H could come up with a platoon of more entertaining dolls with which to march into the polls than some sort of death-baby-doll toting fellows. I, for one, would like to see the free expression that those who march into the polls with dolls can display.
It’s not just dolls that they would use. It would be sidewalk displays that misrepresent zygotes and fetuses as human children. Would sidewalk displays outside polling places be allowed?
I guess I’m old school. I think the polls are sort of like church. You can campaign right up until election day, but election day is like the Sabbath for me.
My parents would take me to church and the the polls. You learned how to behave. One thing they didn’t do at either place was blab about themselves or make a big spectacle.
I’ve carried numerous petitions, but I would never petition outside a polling place.
I’m with Mr. Pay on this one, and with whoever said that those slobs who advertise right outside the polls are likely to find me voting against them.
As you can tell I have a highly suspicious read on Dennert and Nelson. I’ve seen Dennert on question sessions during his campaign and have made Nelson run away from debates and block me on Facebook. They both have a very limited array of issues. Guns and limiting women’s rights. That’s why I don’t think this bill is anything but a way to use pro life wackos at the polls.
Donald, I get that same churchy feel. That’s why I’m willing to say that on Election Day, we respect the sanctity of the polls and take our politicking elsewhere.
However, I will gladly petition near the courthouse during the early-voting period. Taking the courthouse sidewalk out of circulation for four to twelve weeks of the year is too much.
Cory,
I agree with petitioning during the early voting period. I’m not a big fan of early voting anyway. I know it makes it more convenient for some people, and that’s good. Still, early voting is kind of like stores putting up Christmas decorations the day after Halloween. And what is the deal with churches that have services on Wednesday and Saturday. I guess Catholics can go to some service or another every day of the goddam week. My Jewish friends seem able to actually follow what God said. I’m an atheist but even I remember that God said, “Remember the Sabbath and keep it holy.” He didn’t say anything about the other days. The other days are reserved for sinning.