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Government and People
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DAVID H. MARLIN, Plaintiff, v. THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant, Civil Action No. 98-02566 (CKK)
Before the Court are Plaintiff's and Defendant's cross-motions for summary judgment. Because the parties' arguments have not advanced significantly from those proffered at the previous stage of this litigation, the Court adopts and incorporates in large part its Memorandum Opinion of October 30, 1998. To the extent the parties do adduce additional arguments, the Court shall address those below.
This action first came before the Court as a Motion for a Temporary Restraining Order ("TRO"). Plaintiff David H. Marlin, on behalf of himself and others similarly situated, petitioned this Court for a TRO declaring unconstitutional title 3, section 708.4 of the District of Columbia Municipal Regulations. Promulgated by The District of Columbia Board of Elections and Ethics ("Board of Elections"), section 708.4 prohibits registered voters from conducting partisan or nonpartisan political activity-defined as "activity intended to persuade a person to vote for or against any candidate or measure or to desist from voting"-while present inside a "polling or vote counting place." The Board of Elections has construed section 708.4 to pertain to all campaign paraphernalia, including stickers, buttons, emblems, or clothing, that advocates the election of a particular candidate or measure appearing on the ballot.1 Marlin sought to enjoin the Board of Elections from enforcing this provision accordingly during the November 3, 1998 general election. After considering the parties' briefs, affidavits, and oral argument, the Court held section 708.4 constitutional as applied to Marlin, and therefore denied his application for a TRO. More specifically, the Court found it to be a reasonable, viewpoint-neutral regulation that "preserve[s] the [polling place] for the use to which it is lawfully dedicated." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983).
After carefully reviewing the record that developed both before and after the Court considered Marlin's TRO motion, the Court finds that, as a matter of law, section 708.4 restricts speech in a manner which is both reasonable and viewpoint-neutral. The Court therefore grants Defendant's Motion for Summary Judgment, and necessarily denies Plaintiffs Cross-Motion for Summary Judgment.
The essential facts in this case are not in dispute. David Marlin is a long-time District of Columbia resident who, since 1968, has cast his vote at the John Eaton School polling place. See Pl.'s Stmt. Mat. Facts 12. During the District's September 15, 1998 primary election to nominate candidates for mayor, city council, and United States representative, Marlin visited the John Eaton School to register his vote. See id. Critical to the events that followed and to the present litigation, Marlin entered the polling place while wearing a campaign sticker that indicated his support for Anthony Williams as the Democratic nominee for mayor. See id. ¶4. The sticker measured three inches in diameter and boasted a traditional red, white, and blue color scheme. See id. Set against a blue monochrome background, the name "Anthony Williams" (the first name centered vertically above the last name) appeared in white lettering across the top third of the campaign sticker. Also in white lettering, the word "Mayor" occupied the bottom third of the sticker. Finally, positioned between the candidate's name and the office for which he was running appeared a red bow tie, an accoutrement popularly associated with the candidate. See id. (scanned reproduction of sticker).
Apart from affixing this sticker to his clothing, Marlin did nothing to elicit support for Williams. He did not verbally solicit other registered voters to cast their support for Williams, nor did he engage in any other political speech either inside or outside the polling place. See id. 15. Unchallenged, Marlin entered the John Eaton School polling area with his sticker. See id. ¶ 6. Once inside, Marlin checked in with election-day workers, who, without questioning him about the sticker, verified that he was registered to vote and then directed him to a different table to obtain a ballot. See id. ¶¶7-8 Without articulating any objection to Marlin's sticker, these workers handed a ballot to him and directed him to a cubicle where he could punch his ballot. See id. ¶¶9. Once Marlin emerged from the cubicle to cast his ballot, however, an election-day worker admonished Marlin that Board of Elections regulations prohibit anyone from casting a ballot while wearing a partisan sticker. See id. ¶10. Previously unaware of this prohibition, Marlin questioned other election-day workers to ascertain whether this reflected official policy. See id. None of the other workers, however, knew whether the Board of Elections regulations proscribed campaign stickers like the one that Marlin wore. See id.2 Despite his co-workers' uncertainty, the election-day worker who confronted Marlin adamantly maintained that official policy precluded anyone who engaged in partisan political activity from casting a ballot. See id. At some point during this colloquy, however, another election-day worker cast Marlin's ballot. See id. Although he was ultimately able to cast his ballot, Marlin was told that "he would not be allowed to vote in the general election on November 3, 1998, if he appeared at the polling place wearing any sticker, button, emblem, or clothing that showed support for a candidate." Id. ¶11.3
Shortly following the September 15, 1998 primary election, Marlin forwarded a letter to the Board of Elections that summarized his recent experience at the John Eaton School polling place, and requested the Board of Elections to clarify its policy. See id. ¶12. When Marlin received no response, his counsel contacted the Board of Elections to obtain assurances from the latter that its workers would not deny Marlin and others similarly situated from voting if they appeared at polling places with partisan campaign stickers. See id. Although maintaining that Marlin may not enter a polling place while wearing a partisan sticker, the Board of Elections offered to permit Marlin and others similarly situated to use the curb-side voting procedure that the Board of Elections has established for disabled voters and others who cannot enter the building. Def.'s Mem. Supp. Mot. Summ. J. at 5; see also Def.'s Ex. A, Official Instructions for Precinct Captains on Operation of Polling Places at 6.
On behalf of himself and others similarly situated who plan generally to vote while wearing partisan campaign stickers, Marlin argues that section 708.4, as applied to him and others similarly situated, violates the First Amendment. Marlin filed his original complaint on October 23, 1998, seeking a declaration that section 708.4 is unconstitutional, and a TRO enjoining the Board of Elections from enforcing section 708.4 against him when he again arrived at the John Eaton School polling place with an "Anthony Williams" sticker. After both parties briefed the issue and conducted oral argument before the Court, the Court denied the TRO.
During the general election on November 3, 1998, Mr. Marlin once more donned his "Anthony Williams" sticker and attempted to cast his ballot inside the polling place at the John Eaton School. On that occasion, election workers refused to permit Mr. Marlin to vote inside the polling place while wearing his campaign-related sticker, and instead required him to vote at curb-side. See Pl.'s Stmt. Mat. Facts 116. Mr. Marlin also provides evidence, in the form of several affidavits, from other District of Columbia voters who sported paraphernalia demonstrating their support for Mr. Williams while voting in the November 3 election. See Pl.'s Exs. B-F.4 Notwithstanding the Board of Election's mandate that 708.4's interdiction against political activity within the polling place forbids the wearing of buttons and other such paraphernalia, Mr. Marlin declares that he intends to continue doing so in future District of Columbia elections. See id. 117. Following the November 3 election, both Mr. Marlin and the Board of Elections moved for summary judgment on the constitutionality of this provision as it applies to Marlin and those similarly situated.5
When ruling on a motion, or cross-motions, for summary judgment, courts must determine whether the "pleadings ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). To survive a motion for summary judgment, the opposing party must demonstrate that a "genuine issue" exists as to each element critical to that party's case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Since a party opposing summary judgment must, in essence, produce evidence that could persuade a reasonable trier of fact in that party's favor, the Supreme Court has cautioned that, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 248, 249-50 (1986) (citations omitted).
A. The John Eaton School polling place is a nonpublic forum for First Amendment purposes.
The First Amendment's command that government "shall make no law ... abridging the freedom of speech," U.S. CONST. amend. I, is neither absolute nor blind to context. In reviewing government restrictions on speech, a court's initial consideration is to "identify the nature of the forum, because the extent to which the Government may limit access depends upon whether the forum is public or nonpublic." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). To facilitate this inquiry, the Supreme Court has "identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Id. at 802. Traditional public fora encompass property that "by long tradition or by government fiat" has been "devoted to assembly and debate." Perry Educ. Assn v. Perry Local Educators' Assn, 460 U.S. 37, 45 (1983). The quintessential traditional public fora are "streets and parks [because] ... they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. Committee for Indus. Org., 307 U.S. 496, 515-16 (1939). In a traditional public forum, the government may exclude a speaker "only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius, 473 U.S. at 800 (emphasis added).
"Designated public fora, in contrast, are created by purposeful government action." Arkansas Educ. Tele. Comm'n v. Forbes, 118 S. Ct. 1633, 1641 (1998). Because a designated (also known as a limited) public forum depends on purposeful intent, "[t]he government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988) (quoting Cornelius, 473 U.S. at 802); see also International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 680 (1992) [hereinafter ISKCON]. Accordingly, the Supreme Court has "looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum." Cornelius, 473 U.S. at 802. If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny. See id. at 802; United States v. Kokinda, 497 U.S. 720, 726-27 (1990).
The final element of this trinity is the nonpublic forum. "Where the property is not a traditional public forum and the government has not chosen to create a designated public forum, the property is either a nonpublic forum or not a forum at all." Forbes, 118 S. Ct. at 1641. In a nonpublic forum, the government enjoys broad discretion to make content-based decisions about access to the property. Indeed, the government's "[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806 (emphasis added); see also Forbes, 118 S. Ct. at 1641 ("The government can restrict access to a nonpublic forum `as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view."); accord ISKCON, 505 U.S. at 683; Perry, 460 U.S. at 46.
In his Cross-Motion for Summary Judgment, Marlin suggests that restrictions on speech in polling places should not be governed by forum analysis at all. His argument rests on the theory that forum analysis obtains only when the government acts in a proprietary capacity. See Pl.'s Mem. Supp. Cross-Mot. Summ. J. at 26. Where government regulates access to property in a non-proprietary capacity, he maintains, forum analysis is simply inapposite and any contentbased restrictions should systematically be reviewed under strict scrutiny. See id. at 28-29. ("In sum, content-based restrictions should not be permitted in polling places, into which a large part of the public may enter as a matter of right, not legislative grace." Id. at 29.) Thus, Marlin would concede that forum analysis properly governs restrictions placed on speakers seeking access to a public-television debate for political candidates, see Forbes, 118 S. Ct. at 1642-43, as well as restrictions on speech inside an airport terminal, see ISKCON, 505 U.S. at 679-70. Yet, because the government does not act as a proprietor when it operates a polling place, Marlin contends that forum analysis is irrelevant.
This imaginative gloss on the Supreme Court's forum analysis finds no doctrinal support. The case law is replete with examples that belie Marlin's argument. The Supreme Court has applied forum analysis to prisons, see Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977), military bases, see Greer v. Spock, 424 U.S. 828 (1976), and public schools, see Widmar v. Vincent, 454 U.S. 263 (1981). In none of these capacities did the government act as a proprietor, yet the Court never hinted that forum analysis might be inappropriate.
Marlin's counsel additionally suggested at oral argument that forum analysis does not apply when government operates its property under a mandatory duty. From this premise, Marlin reasons that because the government has a duty to establish polling places, any restrictions on speech that it imposes in those arenas fall outside the well-recognized forum doctrine, and therefore must satisfy strict scrutiny. In his Cross-Motion for Summary Judgment, he condenses this argument into the epigrammatic statement that "[t]he polling places belong to the people, not the government." Pl.'s Mem. Supp. Cross-Mot. Summ. J. at 28. Marlin offers no citation to any reported federal court decision to substantiate his novel claim that the government's duty to provide polling places renders forum doctrine inapposite. At oral argument, for example, the Court noted that Article III of the Constitution requires the establishment of the Supreme Court. See U.S. CONST. art. III, §1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."). When asked whether regulations governing expressive activity inside the Supreme Court would be immune from traditional forum analysis, Marlin's counsel posited that the Court's decision in Cohen v. California, 403 U.S. 15 (1971), demonstrates that courthouses are not, in fact, governed by public-forum doctrine. This is simply not so. As the Seventh Circuit has already observed, "[t]he Supreme Court's decision in Cohen v. California has created an impression in some circles that states cannot restrict protest activities in courthouses; but the impression is false." Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th Cir. 1995).
In Cohen, the petitioner had walked through a courthouse corridor while wearing a jacket that bore the statement "Fuck the Draft." See Cohen, 403 U.S. at 16. The Supreme Court held that the State of California violated the First Amendment by convicting Cohen for breach of the peace. See id. at 24-26. While Marlin accurately notes that the Court did not employ forum analysis, he errs in assigning significance to the Court's analytic framework. The Court carefully emphasized that "Cohen was tried under a statute applicable throughout the entire State." Id. at 19. It recognized that his conviction was not based on a specific "statute seek[ing] to preserve an appropriately decorous atmosphere in the courthouse." Id. As the Seventh Circuit has held, forum analysis was unnecessary to the Cohen decision because his conviction had been under "a general prohibition of 'offensive conduct' wherever engaged in; the location of his protest had been irrelevant." Ryan, 45 F.3d at 1095.6 Not surprisingly then, federal courts have unanimously concluded that courthouses are nonpublic fora. See, e.g., Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) ("A courthouse-and, especially, a courtroom-is a nonpublic forum."); Ryan, 45 F.3d at 1095; Claudio v. United States, 836 F. Supp. 1219, 1224-25 (E.D.N.C. 1993), af'd, 28 F.3d 1208 (4th Cir. 1994).7 Marlin's entreaty to eschew forum analysis lacks any legal basis. Accordingly, the Court proceeds to assess the constitutionality of section 708.4 under traditional public-forum doctrine.
In his Cross-Motion for Summary Judgment, Marlon abandons his earlier argument that the polling place is the quintessential public forum.8 Instead, he argues that, if public forum doctrine is to apply at all to polling places, the proper analysis is that of a limited public forum. See Pl.'s Mem. Supp. Cross-Mot. Summ. J. at 23. Where, as here, government property does not "possess all of the attributes of streets, parks, and other traditional public forums that `time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,"' Hazelwood Sch. Dist., 484 U.S. at 267 (quoting Hague, 307 U.S. at 515), it may be deemed to be a designated public forum only if officials "have `by policy or by practice' opened those facilities `for indiscriminate use by the general public,' or by some segment of the public." Id. (quoting Perry, 460 U.S. at 47). Because a designated public forum exists only where the government has made the property "generally available," Widmar v. Vincent, 454 U.S. 263, 264 (1981), the government does not create a designated public forum when it "allows selective access for individual speakers." Forbes, 118 S. Ct. at 1642. Rather, "the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum." Cornelius, 473 U.S. at 802.
Policy and practice clearly indicate that the government has never intended to transform polling places into open fora in which citizens could congregate freely to debate the issues of the day. Marlin contends that, because voters can show up to the polling place wearing any number of buttons which do not express an opinion about a candidate or a measure on the ballot,9 or talk about the weather to fellow voters, or consult pamphlets they may have received as they approached the polling place, the polling place constitutes a limited public forum. See Pl.'s Cross-Mot. Summ. J. at 26. ("[O]pening the forum to discussion of certain specified subjects is sufficient [to create a limited public forum].") His argument misunderstands the Supreme Court's forum analysis and flatly contradicts the holdings in Perry and Cornelius. The government creates a limited public forum only when it opens up its property "for indiscriminate use by the general public." Perry, 460 U.S. at 47. The polling place is certainly not open for indiscriminate use by the general public. Only registered voters assigned to that discrete precinct are officially permitted to enter the polling place. What is more, even duly registered voters lack a license to linger casually once inside engaging their fellow citizens in debates. Rather, after casting their ballot, voters must promptly exit the polling place.10 Both its policies and practices demonstrate that "[t]he Government did not create the [polling place] for purposes of providing a forum for expressive activity." Cornelius, 473 U.S. at 805. In addition, merely because "such activity occurs in the context of the forum created does not imply that the forum thereby becomes a public forum for First Amendment purposes." Id. (citing United States Postal Serv. v. Council of Greenburgh Civic Assns, 453 U.S. 114,130 n.6 (1981)). The Court simply "will not find that a public forum has been created in the face of clear evidence of a contrary intent." Cornelius, 473 U.S. at 803. The polling place is, therefore, a nonpublic forum.11
B. Section 708.4's restriction on "political activity" within the polling place is reasonable and viewpoint neutral.
When the government seeks to exclude a speaker from a nonpublic forum, its decision "must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property." Forbes, 118 S. Ct. at 1643 (citing Cornelius, 473 U.S. at 800). Although the government enjoys broad discretion in a nonpublic forum, that "does not mean that the government can restrict speech in whatever way it likes." ISKCON, 505 U.S. at 687. Yet, so long as the government honors the dual requirements of viewpoint neutrality and reasonableness, it may condition "access to a nonpublic forum ... based on subject matter and speaker identity." Cornelius, 473 U.S. at 806.
The "political-activity" provision of section 708.4 is a content-based (subject-matter based) restriction that is viewpoint neutral. On its face, section 708.4's "political-activity" prohibition bans all partisan campaign activity regardless of the speaker's party or candidate of choice; it does not discriminate among viewpoints. Moreover, Marlin does not argue, nor does the record remotely suggest, that precinct workers applied the prohibition discriminatorily to prevent Williams supporters from wearing their stickers, while concomitantly permitting Carol Schwartz advocates to display their campaign paraphernalia in the polling place. Section 708.4's "political-activity" provision, therefore, satisfies the First Amendment's mandate that the government restrict access to a nonpublic forum with viewpoint neutrality.
The Board of Elections still shoulders the burden of demonstrating that its prohibition on wearing partisan campaign stickers and buttons is "reasonable in light of the purpose of the property." Forbes, 118 S. Ct. at 1643; see also We the People, Inc. v. Nuclear Regulatory Comm'n, 746 F. Supp. 213, 217 (D.D.C. 1990) (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, appeal dismissed, cert. denied, 475 U.S. 1134 (1986)). In undertaking this task, however, the Board of Elections need not establish that its restriction is
Cornelius, 473 U.S. at 808-09.
Section 708.4's "political-activity" prohibition on partisan campaign stickers is a reasonable restriction "in the light of the purpose of the [polling place] and all the surrounding circumstances." Id. at 809. The Board of Elections articulates several important-indeed, compelling-interests that section 708.4's "political-activity" prohibition purportedly advances: 1) "the orderly conduct of elections"; 2) "maintaining integrity in elections"; and 3) "ensuring no interference with voters." Def.'s Opp'n to Compl. for Prelim. Inj. at 8; see also Def.'s Response to Pl.'s Opp. to Def.'s Mot. Summ. J. at 16 ("The Board only wishes to maintain the integrity of the electoral process by prohibiting any type of voter influence in whatever forms that influence may take." (citing id. at 3)). While not disputing the obvious importance of these interests, Marlin questions whether a ban on partisan campaign stickers advances those interests.
Although not dispositive, the Supreme Court's Burson decision goes a long way toward sustaining the constitutionality of section 708.4's "political-activity" provision. The Tennessee statute before the Court in Burson established a "campaign-free zone" within 100 feet of the entrances to polling places. See Burson, 504 U.S. at 193-94 (citing TENN. CODE ANN. § 2-7111(b) (Supp. 1991)). Tennessee's campaign-free zone was a content-based restriction that swept within its vortex "the display of campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position on a question." TENN. CODE ANN. §2-7-111(b) (Supp. 1991). In considering a facial challenge to the constitutionality of the statute, the Supreme Court found that the campaign-free zone did not run afoul of the First Amendment. Notably, the Court sustained Tennessee's statute under the far more exacting "strict scrutiny" standard. Recognizing that "a law rarely survives such scrutiny," the Court nonetheless found that "an examination of the evolution of election reform, both in this country and abroad, demonstrates the necessity of restricted areas in or around polling places." Id. at 200. The Court need not revisit the evolution of election reform that the Supreme Court carefully traced in Burson. See id. at 200-05. It suffices to note that this historical development of reform convinced the Supreme Court that campaign-free zones are both essential and constitutionally sound methods to preserve the "integrity and reliability" of the election and to protect the right of "citizens to vote freely for the candidates of their choice." Id. at 198.
In Schirmer v. Edwards, 2 F.3d 117 (5th Cir. 1993), the Fifth Circuit upheld a stringent restriction on campaign activity. The Court of Appeals held constitutional a Louisiana statute establishing a "campaign-free zone" within 600 feet of a polling place, one of the most expansive in the country. See id. at 121 ("Interestingly, Louisiana's statute is the second largest limitation in the country. Hawaii's 1,00-foot campaign-free zone is the largest in the country."). Here the court also examined the restriction on speech under strict scrutiny, since the zone at issue encompassed significant parcels of land surrounding each polling place (including, presumably, streets, sidewalks, and other traditional public fora), and since it targeted political speech. See id. at 119-20. In the words of that court, the Louisiana statute "posits the First Amendment's guarantee of the right to free speech against the state's attempt to secure its citizens' right to vote in an environment free from intimidation, harassment, confusion, obstruction, and undue influence." Id. at 119. Even under such exacting scrutiny, the court deemed the compromise Louisiana's statute reflects a constitutional one. See id. at 214.
In its original brief, the Board of Elections cursorily justified the prohibition in two sentences: "[W]hen those views and concerns [displayed on stickers or buttons] deal with candidates and/or measures on the ballot, the Board deems that expressing such views and concerns can interfere with voters at the polling place. The Board relies on Burson in so finding." Def.'s Opp'n to Compl. for Prelim. Inj. at 12. At oral argument on the preliminary injunction, however, the Board of Elections provided some elaboration on this perfunctory presentation. Then in its later pleadings, the Board incorporated, without further comment, the points its counsel illuminated at oral argument. Indeed, in reducing these points to writing, the Board of Elections somewhat circularly refers this Court to its own Memorandum Opinion. See Def.'s Mem. Supp. Summ. J. at 9. Despite its rather terse submissions, the Board of Elections does articulate an eminently reasonable wish to maintain orderly voting sites free from influence and intimidation. When justifying its restrictions in a nonpublic forum, moreover, the government need not marshal empirical evidence to satisfy its burden, though it may not rest on bald, unsubstantiated speculation.12 See Cornelius, 473 U.S. at 810 ("[T]he Government need not wait until havoc is wreaked to restrict access to a nonpublic forum."); see also Perry, 460 U.S. at 52 n.12. Therefore, the Court reviews the Board's principal arguments for enacting and enforcing the regulation on political activity in the vicinity of the polling place.
The Board of Elections asserts that the prohibition on partisan stickers and buttons is essential to ensure that the solemnity and orderly business of the polling place are not undermined by unruly debate and conflict. Section 708.4's ban reasonably advances the government's interest in safeguarding the polling places from hostile and distracting controversy while voters are attempting to cast their ballots in secret. While content-based distinctions like section 708.4's "political-activity" prohibition would be pernicious in a public forum, they are "inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property." Perry, 460 U.S. at 49. Moreover, "[a]lthough the avoidance of controversy is not a valid ground for restricting speech in a public forum, a nonpublic forum by definition is not dedicated to general debate or the free exchange of ideas." Cornelius, 473 U.S. at 811; see also Perry, 460 U.S. at 52 ("[E]xclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools."). Accordingly, section 708.4's prohibition constitutionally reaches partisan campaign stickers and buttons.
Further, by prohibiting partisan campaign stickers in the polling place, the Board of Elections mitigates against the danger that candidates and their agents will abuse the "challenge process" to harass and intimidate opposition voters. Under the "challenge process," each candidate is permitted to station in a polling place a certain number of "poll-watchers," who monitor the precinct for any voting irregularities, including doubts about the credentials of putative voters. The Board of Elections maintains that were voters free to appear with partisan buttons and stickers, opposition poll-watchers might illegitimately challenge those voters in an effort either to disqualify them or simply to harass them. By prohibiting voters from displaying any indicia of partisanship, the Board of Elections ensures that poll-watchers will not corrupt the challenge process into an inequitable tool of intimidation. Given this important concern, section 708.4's prohibition on campaign paraphernalia is quite reasonable "in light of the purpose which the [polling place] serves." Perry, 460 U.S. at 49.
Finally, the Board of Elections asserts that the ban is necessary to guard against intimidation. Counsel presented the scenario at oral argument in which an organized group of, say, ten or more voters, all dressed in T-shirts bearing the identical partisan campaign message, were to arrive at a polling place. Under such circumstances, the Board of Elections believes that an organized display of partisan support might intimidate some voters. Marlin counters by reminding us that voters cast their ballots in secret, ultimately free to make their choices sheltered from public scrutiny. See Pl.'s Mem. Supp. Cross-Mot. Summ. J. at 18. Whether or not Marlin is correct in suggesting that voters are unlikely to change their votes if confronted by such a group, the Court has already found that the previous two interests proffered by the Board of Elections amply demonstrate the reasonableness of section 708.4's prohibition on partisan campaign stickers and buttons.
Not only is section 708.4 reasonable "in the light of the purpose of the forum," but it is also eminently reasonable in light of "all the surrounding circumstances." Cornelius, 473 U.S. at 809. Among the more germane circumstances worthy of consideration, the Board of Elections offers curb-side voting in addition to the typical polling-place voting. Such an accommodation relieves voters like Marlin from the Hobson's choice of either forgoing the right to vote, or sacrificing the right to wear a partisan campaign sticker. To be sure, by segregating Marlin from citizens inside the polling place, curb-side voting presumably dilutes his ability to persuade-if ever so subtly-other voters by wearing his sticker. Yet it is hornbook law that "[t]he First Amendment does not demand unrestricted access to a nonpublic forum merely because use of the forum may be the most efficient means of delivering the speaker's message." Cornelius, 473 U.S. at 809 (citing Council of Greenburgh Civic Ass'ns, 453 U.S. at 129). As the Supreme Court has observed, "[r]arely will a nonpublic forum provide the only means of contact with a particular audience." Id. This general rule certainly holds true in the present case. But for the discrete polling place, Marlin remains absolutely free to wear his sticker anywhere in the city. Indeed, because the Board of Elections has indicated that it will not enforce its sticker ban outside of the polling place, Marlin will be able to pass through the fifty-foot campaign-free zone that extends around a polling place with his sticker appended to his clothing. Here, as in Perry and Cornelius, "the speakers have access to alternative channels" of communicating their message, including wearing their stickers anywhere outside the polling place or, for that matter, engaging in more active, vocal campaigning fifty-one feet outside the-polling place.
Legally, the possibility that the Board of Elections could promulgate a narrower regulation does not affect the constitutionality of section 708.4 as it is currently drafted. To be sure, a narrower version of section 708.4 might very well offer an even more reasonable response to the ills that the Board of Elections has identified. Yet, as the Supreme Court has reiterated time and again, "[t]he Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation." Cornelius, 473 U.S. at 808 (emphasis in original);- accord ISKCON, 505 U.S. at 683; United States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality opinion). In granting summary judgment to the Board of Elections, then, the Court does not mean to suggest that this regulation as formulated is necessary to insulate the polling place from undue influence and intimidation by certain voters pushing their partisan agendas on other voters. Nor is the Court suggesting that this regulation constitutes the most reasonable means of achieving this insulation. Rather, the Court finds, consistent with forum doctrine analyzing nonpublic fora, that section 708.4 reasonably excludes all political activity, including the wearing of partisan paraphernalia, to advance the interest of protecting voters and the voting process.
The polling place is not so much a market place of ideas established to foster robust, unfettered debate as it is a repository of decisions-a small enclave into which voters step not to trade in the currency of philosophy but to register their ultimate decision that will determine which ideas have prevailed. To hold open the polling place doors to the political arena's vibrant, democratic cacophony and tumult would perversely undermine political autonomy, not advance it. Partisan political activity within the sanctum of the polling place-fraught with the specter of intimidation and harassment might skew rather than accurately reflect which candidates and measures have triumphed in the marketplace of ideas. Section 708.4's prohibition on partisan campaign stickers and buttons is a reasonable, viewpoint-neutral restriction aimed at preserving the integrity of elections. Under the Supreme Court's public-forum doctrine, the regulation easily survives Marlin's as-applied constitutional challenge. The Board of Election's Motion for Summary Judgment is therefore granted.
An order accompanies this Memorandum Opinion.
September 8 , 1999
Mark H. Lynch
Kenneth J. McGhie
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DAVID H. MARLIN, Plaintiff, V. THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant.
C.A. No. 98-2566 (CKK)
SUPPLEMENTAL DECLARATION OF DAVID H. MARLIN
1. My name is David H. Marlin. I submit this Declaration to supplement my original affidavit in this case.
2. I voted at the John Eaton School in Precinct 27 on November 3, 1998, in the general election. I intend to vote there in future District of Columbia elections.
3. On November 3, 1998, I approached the John Eaton School in the District of Columbia to vote in the District of Columbia general election. I was wearing a political button-style sticker substantially similar to the sticker reproduced in Paragraph 4 of my original affidavit. Like that sticker, the sticker I wore on November 3, 1998, was just three inches in diameter.
4. At no time on November 3, 1998, did I solicit votes for any candidate or engage in any political speech whatsoever (other than wearing the sticker) either inside or outside the polling place at the John Eaton School.
5. I had been informed through my counsel that the Board would not permit me to enter the polling place to cast my ballot. I therefore asked a campaign worker to go into the polling place and inform the election day workers that I desired to vote at curb-side. I was eventually permitted to vote at curb-side while wearing my sticker. No partisan poll-watcher challenged my qualifications to vote.
6. I intend to wear campaign-related stickers, buttons, emblems, or clothing bearing messages similar to the one expressed on the sticker reproduced in Paragraph 4 of my original Affidavit in future District of Columbia elections.
I declare under penalty of perjury that the foregoing is true and correct.
Executed: December 30, 1998
David H. Marlin
United States Court of Appeals
Argued September 15, 2000, Decided January 19, 2001
DAVID H. MARLIN, APPELLANT V. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, APPELLEE
Appeal from the United States District Court for the District of Columbia (No. 98cv02566)
Robert K. Kelner argued the cause for the appellant. Mark H. Lynch was on brief. Michael A. Dawson entered an appearance.
Rudolph McGann Jr. argued the cause for the appellee. Kenneth J. McGhie was on brief.
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Before: HENDERSON, RANDOLPH and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON. Circuit Judge: David H. Marlin appeals the district court's grant of summary judgment to the District of Columbia Board of Elections and Ethics (Board). Marlin brought this action alleging the Board's enforcement of polling place regulations to prohibit him from wearing a campaign sticker into his polling place on election day violates the First Amendment to the United States Constitution. We agree with the district court that the Board's enforcement reflects reasonable, viewpoint-neutral regulation of polling place speech and therefore does not violate the First Amendment. Accordingly we affirm the district court's summary judgment.
The material facts are not in dispute. On September 15, 1998 Marlin, a resident and registered voter of the District of Columbia (District), went to his polling place to vote in a primary election while wearing a campaign sticker in support of mayoral candidate Anthony Williams. When Marlin attempted to turn in his completed ballot, an election worker informed him he "could not cast his ballot while wearing the sticker." Affidavit of David H. Marlin ¶10. After a second election worker accepted Marlin's ballot, the first worker told Marlin he would not be permitted to vote in the general election if he was wearing "any sticker, button, emblem, or clothing that showed support for a candidate." Id. After the primary Marlin and his counsel contacted the Board, which told Marlin's counsel that the District's election regulations, promulgated by the Board,1b prohibited voters from wearing political paraphernalia inside a polling place but that, if Marlin insisted on wearing a campaign sticker, he would be permitted to vote curbside at the general election. Marlin wore a sticker and voted curbside on November 3. 1998.
Meanwhile, on October 23, 1998 Marlin filed this action in the district. court, challenging the Board's enforcement of the regulations. In a memorandum opinion and order filed September 8, 1999 the district court granted summary judgment in favor of the Board. Marlin appealed.
Marlin challenges two District election regulations. The first provides:
3 D.C.M.R. § 708.4. The second defines "political activity" to "include without limitation, any activity intended to persuade a person to vote for or against any candidate or measure or to desist from voting." 3 D.C.M.R. § 708.8. Marlin contends the Board's enforcement of these regulations to prevent him from wearing a political sticker when voting inside the polling place is an unjustified restriction of his right to free expression under the First Amendment.2 The district court held that the political activity ban is a reasonable viewpoint-neutral regulation of a non-public forum and therefore does not violate the First Amendment. We agree.
Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802 (1985). A content-based regulation, such as the District's, which restricts expression in either a traditional forum or a designated forum will be upheld only if the state shows it "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry. Educ. Ass'n, 460 U.S. at 45 (citing Carey v. Brown, 447 U.S. 455, 461 (1980)). By contrast, a restriction on speech in a nonpublic forum is permissible so long as it is viewpoint neutral and "reasonable in light of the purpose which the forum at issue serves." Id. at 46-49.3b
The forum here, the interior of a polling place, is neither a traditional public forum nor a government-designated one. It is not available for general public discourse of any sort. The only expressive activity involved is each voter's communication of his own elective choice and this has long been carried out privately-by secret ballot in a restricted space. See Burson v. Freeman. 504 U.S. 191, 201-06 (1992) (describing early problems with voter fraud and intimidation in the United States and the states' responses, including secret ballot and restricted zones around polls). In the District of Columbia specifically, the record demonstrates that at least as early as 1960 the Board's regulations prohibited all "partisan political activity," either written or oral, "in any building while it is in use as a polling place." JA 28. District regulations also restrict election day activity at polling places to "the conduct of the election" and limit polling place access to Board representatives, police officers, duly qualified election watchers, persons engaged in voting and others authorized by the Board. 3 D.C.M.R. § 708.3. Given these longstanding limitations on polling place speech, we do not see how the polls can fairly be described either as "places which `by long tradition or by government fiat have been devoted to assembly and debate,"' or as places designated by the government "for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius, 473 U.S. at 802. As 'the Supreme Court declared in Cornelius: "We will not finch that a public forum has been created in the face of clear-evidence of a contrary intent, nor will we infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity." 473 U.S. at 803.
Having concluded that polling places are non-public fora, we further conclude that the Board's enforcement of the challenged election regulations constitutes reasonable viewpoint-neutral regulation of expression within polling places. In Burson v. Freeman, 504 U.S. 191 (1992), the petitioner challenged similar but more extensive polling place restrictions in force in Tennessee. The challenged statutes prohibited "the display of campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position" within the polling building or 100 feet from its entrance. The Burson majority concluded the regulation satisfied at least the reasonableness test applied to regulation of speech in non-public fora.4b The same result is compelled here.5b
Marlin does not dispute that the regulations, which apply to all political activity, are viewpoint neutral. Nor does he question the validity of the interests identified by the Board, namely protecting "the orderly conduct of elections" by "creating a neutral zone within the polling place, preventing altercations over hot-button issues, intimidation of voters, eleventh hour smear campaigns and the like," Brief of Appellee at 20-21 (emphasis original)-which interests parallel those endorsed in Burson, namely protecting "the right of (Tennessee's] citizens to vote freely for the candidates of their choice" and safeguarding "the right to vote in an election conducted with integrity and reliability," 504 U.S. at 198-99. Marlin contends only that the broad ban is unnecessary to prevent the evils the Board has identified. To pass constitutional muster, however, regulation of speech in a nonpublic forum need "not be the most reasonable or the only reasonable limitation" and, "[i]n contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated." 473 U.S. at 808 (citing Perry Educ. Assn.. supra; Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)). The "decision to restrict access to a nonpublic forum need only be reasonable," id., and the district's decision to ban campaign paraphernalia from polling places is a reasonable means of ensuring an orderly and peaceful voting environment, free from the threat of contention or intimidation. That narrower regulations might be as effective or more so, as Marlin contends, does not invalidate the means the District has chosen. Regulation of a non-public forum, unlike that of a public forum, need not be "narrowly drawn to achieve [its] end." Perry Educ. Ass'n, 460 U.S. at 45 (citing Carey v. Brown, 447 U.S. 455, 46] (]980)). Because the Board's enforcement of 3 D.C.M.R. §§ 708.4 and 708.8 to regulate political activity inside polling places is "reasonable in light of the purpose which the forum at issue serves," Cornelius, 460 U.S. at 49, given the history and function of polling places, see Burson, 504 U.S. at 200-09, we hold that the regulations do not violate the First Amendment.
For the foregoing reasons, the judgment of the district court is
1. Although section 708.4's general ban on partisan political activity normally extends fifty feet outside of the polling place, the Board of Elections "has instructed its precinct workers to only preclude voters from wearing political buttons and T-shirts inside of the polling place." Def.'s Opp'n to Compl. for Prelim. Inj. at 16.
2. Section 708.4 of Title 3 of the District of Columbia Municipal Regulations, the provision at issue in this case, provides:
3 D.C.M.R. § 708.4. The regulations define "political activity" to "include without limitation, any activity intended to persuade a person to vote for or against any candidate or measure or to desist from voting." 3 D.C.M.R. § 708.8.
3. Sections 708.9 and 708.10 establish the consequences for violating section 708.4. Section 708.9 provides in pertinent part: "A person shall be warned to cease and desist his or her conduct upon ... (a) Violation of the Election Act or regulations contained in this section. ..." 3 D.C.M.R. § 708.9. Section 708.10 reads: "If the person committing the violation(s) fails to cease and desist the conduct specified in § 708.9, a member of the Metropolitan Police Department of the District of Columbia shall be requested to evict the person or take other appropriate action." 3 D.C.M.R. § 708.10.
4. Several of the other voters Marlin has located who donned Anthony Williams-related paraphernalia in the general election did so without incident-that is, without occasioning a response from the poll workers or being asked to vote at curb-side. See, e.g., Decl. of John Adams, Pl.'s Ex. D ("I was able to vote while wearing the stickers [three "Anthony Williams, Mayor" stickers] without incident. No election day worker challenged my right to vote while wearing the stickers."); see also Pl.'s Exs. E & F. The Court does not, however, consider this fact salient to the constitutional issue at stake in this litigation. After all, Marlin himself would have voted wearing his own sticker without incident at the September 15 primary were it not for the watchfulness of one election-day worker. Negligence on the part of some poll workers in enforcing 708.4, so long as it does not veil discriminatory enforcement, has no bearing on the regulation's constitutionality.
5. Marlin has abandoned his facial attack challenging the second part of section 708.4, which bans "any other activity which, in the judgment of the Precinct Captain, may directly or indirectly interfere with the orderly conduct of the election." 3 D.C.M.R. § 708.4. At the TRO stage, the Court found that it lacked jurisdiction to hear this challenge, since Marlin has claimed a curtailment of his First Amendment rights solely with regard to the "political activity" prong of section 708.4, under which his "Anthony Williams" sticker is banned.
6. In Airport Corn'rs of Los Angeles v. Jews for Jesus, 482 U.S. 569 (1987), the Court cites, in dicta, to Cohen for the proposition that "[m]uch nondisruptive speech-such as the wearing of a T-shirt or button that contains a political message ... is still protected speech even in a nonpublic forum." Id. at 576. There the Court held a resolution adopted by the Board of Airport Commissioners banning all "First Amendment activities" in the Los Angeles International Airport unconstitutional on the basis of overbreadth. See id. at 577. Because it ruled on these grounds, the Court did not reach the issue of whether the airport constituted a nonpublic forum. Thus Jews for Jesus is not dispositive here, since the context in question-the nonpublic forum of the polling place-may, as the government claims, render such T-shirts, buttons, and other campaign paraphernalia extremely disruptive.
7. Although not passing upon the constitutionality of restricting speech inside the Supreme Court, that Court did apply the public-forum doctrine to conclude that the sidewalks surrounding its building were traditional public fora. See United States v. Grace, 461 U.S. 171, 177-78 (1983).
8. In his earlier pleadings, Marlin argued that because voting "is the quintessential act of political self-expression. .. [t]he polling place is not only a traditional public forum.... it is the quintessential public forum." Pls.' Reply at 11. The Court pointed out, however, that this curious and unsupported assertion ignores controlling Supreme Court precedent. Unlike traditional public fora, which are "continually open, often uncongested, and constitut[e] not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people [may] enjoy the open air or the company of friends and neighbors in a relaxed environment," Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981), polling places-by their nature and by historical regulation-remain restricted environments that serve a unique function that is incompatible with unbridled politicking and debate. Moreover, the polling place "hardly qualifies for the description of having `immemorially ... time out of mind' been held in the public trust and used for purposes of expressive activity." ISKON, 505 U.S. at 680 (quoting Hague, 307 U.S. at 515).
10. Marlin claims that "the Board has not shown that it in fact restricts access to polling places to registered voters. The Board, for example, has made no effort to address Plaintiff's argument that the Board permits others, such as minor children and companions of voters to accompany voters into and within polling places." Pl.'s Reply Def.'s Opp. Pl.'s Cross-Mot. Summ. J. at 15. Notwithstanding the occasional presence of nonvoters in the polling place, it is clear that the government has not provided this forum for unlimited access by the general public, or some segment of that public. Rather, the polling place is opened on certain rare occasions for a specific purpose, and for that purpose alone: voting.
11. Interestingly, in Burson v. Freeman, Justice Scalia would have found that even the streets and sidewalks surrounding a polling place comprise nonpublic fora because the government has long restricted speech there. See Burson v. Freeman, 504 U.S. 191, 214-15 (1992) (Scalia, J., concurring). He would presumably encounter no difficulty in concluding that the interior of a polling place is a nonpublic forum. Moreover, Justice Stevens in dissent even acknowledged that certain "restrictions on campaigning within the polling place are constitutional." Id. at 220 n.4 (Stevens, J., dissenting) (emphasis in original). It stands to reason that Justice Stevens assumed that the polling place itself was not a traditional public forum.
12. Although Marlin labels the Board of Elections's stated rationale for its regulation "completely unsubstantiated speculation. . . ," Pl.'s Mem. Supp. Cross. Mot. Summ. J. at 17, the Court does not agree with this assessment. Certainly the Board would make a more persuasive presentation if it elaborated further on the evils it attempts to preclude by adopting this restriction on political activity, rather than relying upon the Court's own description of those evils. Nonetheless, its poorly reasoned argument does not sink to the level of "completely unsubstantiated speculation."
1b. The Board is authorized by statute to promulgate regulations governing conduct of elections. See D.C. Code Ann. § 1-1324.
2b. Although section 708.4 broadly prohibits political activity "in, on, or within a reasonable distance outside" a polling place, Marlin challenges the regulation only as applied, that is, to prevent him from wearing the sticker inside the polling place. In addition, the Board's counsel assured the district court that its policy is to enforce the ban only "inside the polling place." JA 102.
3b. Although Marlin argues that public forum analysis does not apply to polling places because they are not "proprietary" to the government, see Brief of Appellant at 9-12, Supreme Court precedent establishes that the public forum analysis is appropriate. See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (applying public forum analysis to Tennessee statute prohibiting display of campaign materials in or near polling places).
4b. The plurality in Burson applied the more exacting public forum test because it concluded the area outside the polling place was a public forum, noting the Court had characterized as a "quintessential public forum" "those places 'which by long tradition or by government fiat have been devoted to assembly and debate,' such as parks, streets, and sidewalks." 504 U.S. at 196-98 (quoting Perry Educ. Assn., 460 U.S. at 45). Concurring in the judgment, Justice Scalia expressed his view that the area outside the polling place was a non-public forum subject only to the reasonableness test. We are not concerned with the area outside the polling place because the Board applies the ban only within the site. See supra note 1.
5b. Marlin attempts to distinguish this case from Burson on the ground the challenge there was facial while his is as applied. That a challenge is as applied, however, does not alter the level of scrutiny applied in a nonpublic forum-to wit reasonableness. See, e.g., United States v. Kokinda, 497 U.S. 720 (1990).
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