No Free Speech Within 100 Feet: North Dakota Supreme Court Upholds State Electioneering Law

November 8, 2016

What is wrong with advocating for or against the adoption of a new ballot measure outside of a polling station on Election Day? For one, it may be against the law.

In North Dakota, such a law found itself as the subject of litigation that went all the way to the North Dakota Supreme Court. The case, State v. Francis, involved a challenge to North Dakota Century Code § 16.1-10-06.2, an electioneering law that criminalizes gathering signatures within 100 feet of an open polling place on election day. In July 2016, the North Dakota Supreme Court upheld the law after applying established U.S. Supreme Court precedent in its own analysis of the North Dakota electioneering statute.

The facts of the case started out innocently enough: Curtis Francis was collecting signatures to place a measure involving environmental concerns on the next ballot. He was collecting the signatures on election day outside the Jamestown Civic Center, a designated polling place in Jamestown, North Dakota. When it started to rain, Francis moved under a canopy to avoid the rain, and while under the canopy, he continued to ask passersby for signatures. However, this put him within 100 feet of the polling place. For his actions, Francis was charged with criminal electioneering in violation of a state statute prohibiting gathering signatures within 100 feet of an open polling place on election day.

Francis conditionally pled guilty to violating the law, but immediately appealed. Francis argued, among other things, that the law itself violated the First Amendment of the U.S. Constitution. The North Dakota Supreme Court found that the law is a constitutionally permissible restriction of First Amendment free speech rights for three major reasons. First, the law is content neutral. Second, the law promotes a significant government interest. Third, the law is narrowly tailored to serve the government interest.

The Court determined the electioneering law to be content neutral because its enforcement does not depend on a particular viewpoint. Instead, the electioneering law applies to anyone within 100 feet of a polling station, whether the person is Francis promoting an environmental initiative or another person promoting a land development initiative. In considering content neutrality, the Court relied on the U.S. Supreme Court’s decision in Ward v. Rock Against Racism, which set out the frequently used content neutrality doctrine.

Next, the Court stated that the electioneering law promotes a significant government interest: facilitating citizens’ right to vote. In fact, the Court noted that facilitating the right to vote is more than significant–it is compelling.  The Court suggested that the law itself facilitates the right to vote by preventing voter intimidation and election fraud. The Court cited the U.S. Supreme Court’s decision in Burson v. Freeman, a case involving Tennessee’s 100-foot electioneering ban near polling places, to back up its claim that protecting voting rights was a compelling that interest that could be accomplished with an electioneering ban.

Although also involving an 100-foot electioneering ban, Burson v. Freeman did not give a definitive answer to the issues presented to the North Dakota Supreme Court because Tennessee’s law in Burson v. Freeman limited less speech than North Dakota’s law. Specifically, Tennessee’s law banned campaign materials and the solicitation of votes, but did not go one step further like North Dakota’s law and ban promoting ballot measures and collecting of signatures. Therefore, while the government interests were the same, the First Amendment restrictions imposed by the laws were different. However, the North Dakota Supreme Court did continue to utilize Burson v. Freeman in the final part of its analysis when determining whether North Dakota’s electioneering law is narrowly tailored.

The Court did, in fact, determine that the North Dakota law is narrowly tailored. In doing so, the Court acknowledged that while the law bans many types of speech, it does so in a limited space of 100 feet around a polling place for only the limited time of when the polling place is open on election days. Like its analysis of government interest, the Court analogized to the Burson v. Freeman case and agreed that a specified electioneering ban around polling places was narrowly tailored, even though North Dakota’s electioneering ban is broader than the one at question in Burson v. Freeman.

Overall, the North Dakota Supreme Court straightforwardly applied First Amendment principles as explained by the U.S. Supreme Court. The Burson v. Freeman case in particular provided a strong precedent thanks to a similar electioneering law being at question. However, that does not mean that challenges to electioneering laws, such as Francis’s in North Dakota, will disappear anytime soon. Just like Francis did, others will find it makes sense to drum up support for political causes on Election Day among those going to vote. With some calling for more ballot measures, perhaps more states will have to follow North Dakota’s lead and determine the constitutionality of electioneering laws.