JOHN C. FRANK, Plaintiff - Appellee/Cross-Appellant, v. DEBRA LEE, Laramie County Clerk, in her official capacity; CHARLES GRAY, Wyoming Secretary of State, in his official capacity; SYLVIA HACKL, Laramie County District Attorney, in her official capacity, Defendants - Appellants/Cross-Appellees.
Nos. 21-8058, 21-8059, and 21-8060
United States Court of Appeals for the Tenth Circuit
October 23, 2023
PUBLISH
James Peters, Senior Assistant Attorney General (Mackenzie Williams, Senior Assistant Attorney General, State of Wyoming, Cheyenne, Wyoming, with him on the briefs), for Defendants-Appellants/Cross-Appellees Charles Gray and Sylvia Hackl.
J. Mark Stewart of Davis & Cannon, LLP, Cheyenne, Wyoming (Catherine M. Young, Davis & Cannon, LLP, with him on the briefs), for Defendant-Appellant/Cross-Appellee Debra Lee.
Stephen R. Klein of Barr & Klein PLLC, Washington, District of Columbia (Benjamin Barr of Barr & Klein PLLC, Chicago, Illinois, with him on the briefs) for Plaintiff-Appellee/Cross-Appellant.
ROSSMAN, Circuit Judge
Wyoming law prohibits electioneering within 300 feet of a polling place on an election day and within 100 feet of an absentee polling place during the 45-day period when absentee voting is being conducted.
Plaintiff John C. Frank1 sued Wyoming state and local officials2 in federal district court under
The parties filed cross-motions for summary judgment. The district court granted each in part, striking down some parts of the electioneering statute and upholding the rest. Specifically, the district court held the ban on electioneering within 300 feet of polling places on election day was unconstitutional, as was the ban on bumper stickers within the election day and absentee period buffer zones. But the district court upheld the statute‘s prohibition on electioneering within 100 feet of absentee polling places. It
Exercising jurisdiction under
I
We begin by reciting the history of the electioneering statute and its enforcement in Wyoming. We then detail the factual and procedural background of the constitutional challenges now before us.4
1
The polling place is where the act of voting itself takes place. Like every other state and the District of Columbia, Wyoming regulates electioneering around polling places.5 The state‘s electioneering statute provides:
(a) Electioneering too close to a polling place or absentee polling place under W.S. 22-9-125 when voting is being conducted, consists of any
form of campaigning, including the display of campaign signs or distribution of campaign literature, the soliciting of signatures to any petition or the canvassing or polling of voters, except exit polling by news media, within one hundred (100) yards on the day of a primary, general or special election and within one hundred (100) feet on all other days, of any public entrance to the building in which the polling place is located. This section shall not apply to bumper stickers affixed to a vehicle while parked within or passing through the distance specified in this subsection, provided that: (i) There is only one (1) bumper sticker per candidate affixed to the vehicle;
(ii) Bumper stickers are no larger than four (4) inches high by sixteen (16) inches long; and
(iii) The vehicle is parked within the distance specified in this subsection only during the time the elector is voting.
Wyoming has regulated electioneering near the polls since statehood. In 1890, Wyoming recognized the need for “a clear space for the easy entrance and exit of all electors, to and from the polling place, without the hindrance or molestation of any one.” 1890 Wyo. Sess. Laws 399. Wyoming initially prohibited electioneering within 20 feet of a polling place on an
Wyoming also regulates electioneering around absentee polling places when voting is being conducted. Absentee voting has been available in Wyoming since the early 1900s, see
The statutory buffer zones surrounding both election-day and absentee polling places in Wyoming are the subject of Plaintiff‘s facial challenge to the electioneering statute. Plaintiff‘s as-applied challenge centers specifically on absentee and election-day polling places in Laramie County, Wyoming. The county has several election-day polling places, including the Laramie County Community College (“LCCC“). Private property and public spaces (like sidewalks and parks) fall within the 300-foot election-day buffer zone. Id. The county‘s sole absentee polling place is located inside the atrium of the Laramie County Government Complex (“LCGC“).8
Wyoming enforces the electioneering statute. Poll workers are instructed to ask violators to move out of the statutory buffer zones and to call law enforcement if the violation persists. In August 2020, for example, Wyoming law enforcement cited Jennifer Horal9 for violating the electioneering statute because she was gathering signatures on Election Day at the LCCC within the 300-foot buffer zone. Ms. Horal had a sign directing “registered voters” to come her way. According to law enforcement, she was stopping cars in the LCCC parking lot and harassing poll workers. Ms. Horal maintained she was more effective gathering signatures inside the 300-foot buffer zone and had less success contacting voters at “the 100-yard boundary.” Joint App. at 292. Similar complaints of impermissible electioneering were lodged at three other election-day polling places in Laramie County during the August 2020 primary election.
During prior instances of absentee voting at the LCGC, several vehicles parked within the electioneering-free buffer zone were asked to move because the cars displayed multiple campaign bumper stickers. Signature gatherers also have been asked to leave the buffer zone around the absentee-polling place.
3
Plaintiff Frank, though, has never violated the electioneering statute. Mr. Frank has previously engaged in electioneering activities including “distributing literature, knocking on doors, soliciting and placing yard signs.” Joint App. at 303. But during the 2020 election cycle, Mr. Frank conducted no electioneering activities near a polling place. He claims he wants to distribute campaign literature and display more than one large campaign bumper sticker for a single candidate within the buffer zones. However, he has chosen not to do so out of fear he would violate the electioneering statute.
B
Against this backdrop, we consider the case before us. On July 24, 2020, Plaintiff brought this civil-rights action in federal district court in Wyoming against Defendants in their official capacities. Plaintiff‘s complaint alleged in a single count that Wyoming‘s electioneering statute was “unconstitutional on its face and as applied.” Joint App. at 23.
The parties filed cross-motions for summary judgment. Plaintiff contended Wyoming‘s election-day and absentee polling place buffer zones “abridged [his] rights to political speech” and “should be declared unconstitutional.” Pl. Mot. Summ. J. 10. Specifically, he argued the undisputed facts established the breadth of the electioneering restrictions, including the geographic size and temporal scope of the buffer zones, was excessive; Defendants failed to prove the necessity of such restrictions; and the impingement on First Amendment rights was “significant.” Id. at 16–25. Defendants contended Plaintiff‘s § 1983 claims were barred by Eleventh Amendment immunity; he lacked Article III standing to challenge the constitutionality of Wyoming‘s electioneering statute; and Defendants were entitled to summary judgment on Plaintiff‘s as-applied and facial
On July 22, 2021, the district court granted each motion in part. The district court determined Plaintiff had standing and rejected Defendants’ sovereign immunity defense. On the merits, the district court agreed with Plaintiff that the 300-foot election-day buffer zone was unconstitutional, as was the prohibition against displaying campaign bumper stickers within both buffer zones. The district court agreed with Defendants that the 100-foot buffer zone surrounding the absentee-polling place was constitutional. As to the overbreadth challenge, the district court determined “there is an absence of factual record in the case to consider this issue.” Joint App. at 419.
These timely appeals followed.
II
We begin by considering whether Plaintiff‘s claims are barred by Eleventh Amendment sovereign immunity and whether Plaintiff has Article III standing. As we explain, we agree with the district court‘s determinations on both fronts and thus proceed to the merits.
A
Under the doctrine of sovereign immunity, “a federal court generally may not hear a suit brought by any person against a nonconsenting State.”
First, a state may consent to suit in federal court. Second, Congress may abrogate a state‘s sovereign immunity by appropriate legislation when it acts under Section 5 of the Fourteenth Amendment. Finally, under Ex parte Young, a plaintiff may bring suit against individual state officers acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief.
Id. at 1169 (citations omitted). The parties and district court analyzed only Ex parte Young; however, the second exception—involving express congressional abrogation of a state‘s Eleventh Amendment immunity, here, under § 1983—also comes into play.
Defendants Gray and Hackl contend sovereign immunity bars Plaintiff‘s claims against them.10 The district court rejected this assertion,
First, Defendants make a puzzling argument that Ex parte Young does not apply because Mr. Frank brought only a § 1983 claim. According to Defendants, injunctive relief is not available under § 1983, and therefore “§ 1983 is not the proper vehicle to bring an Ex parte Young action.” Opening Br. at 15. Defendants insist § 1983 and Ex parte Young are distinct causes of action and merging them “would require this Court to find that the named government officials were ‘persons’ subject to suit under § 1983,” contrary to the Supreme Court‘s holding in Will v. Michigan Department of State Police. Reply Br. at 7. Defendants’ argument lacks merit. While Will did hold state officials were not “persons” under § 1983 for purposes of
Next, Defendants contend Ex parte Young does not apply because Plaintiff Frank seeks retroactive relief, including attorneys’ fees under
Congress has plenary power to set aside the States’ immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the [Civil Rights Attorney‘s Fees Awards] Act [of 1976,
42 U.S.C. § 1988 ], Congress undoubtedly intended to exercise that power and to authorize fee awards payable by the States when their officials are sued in their official capacities.
Finally, Defendants contend Plaintiff Frank failed to allege an ongoing violation of federal law, as Ex parte Young requires, “because no government official has threatened to or taken any action against [him].” Opening Br. at 17. Neither Defendant Gray, the Wyoming Secretary of State, nor Defendant Lee, the Laramie County Clerk, have the requisite connection to the enforcement of the statute, according to Defendants, because they lack the authority to issue citations or prosecute Mr. Frank.12 However, Plaintiff maintains these defendants do “‘have some connection with the enforcement’ of the challenged statute,” Hendrickson, 992 F.3d at 965, because they are the chief elections officers with statutory duties to administer elections consistent with Wyoming‘s elections laws. According to Plaintiff, claims against these officials are proper under Ex parte Young. We agree.
“Under the Ex parte Young exception, a plaintiff may sue individual state officers acting in their official capacities if the complaint alleges an
“The secretary of state is the chief election officer for the state and shall maintain uniformity in the applications and operations of the election laws of Wyoming.”
Though they acknowledge some of these statutory duties, Defendants insist they are nonetheless immune from suit because “those duties do not include overseeing criminal prosecutions.” Reply Br. at 11. Defendants offer no authority for their assertion that overseeing criminal prosecutions is required, and it is clearly inconsistent with applicable law that demands a state official need only have “some connection with the enforcement” of the challenged statute. Hendrickson, 992 F.3d at 965. Here, in addition to Defendant Gray‘s statutory duties, there is evidence that the Secretary of State‘s office has specifically fielded calls for advice related to enforcement of the statute. See Joint App. at 150. And there is no dispute Laramie County Clerk officials have asked signature gatherers to leave buffer zones and have entered private property to remove campaign signs. Thus, according to applicable law and the record developed on summary judgment, the Secretary of State and Laramie County Clerk are responsible for enforcing Wyoming‘s electioneering statute. We agree with the district court: Defendants Gray and Lee may be sued under Ex parte Young.
Accordingly, we affirm the district court‘s ruling that Defendants are not shielded by sovereign immunity.
Defendants contend the district court erred in concluding Plaintiff Frank had Article III standing to bring his First Amendment challenge.13 We review the district court‘s rulings on standing de novo. Aptive Env‘t, LLC v. Town of Castle Rock, 959 F.3d 961, 973 (10th Cir. 2020).
“‘The party invoking federal jurisdiction bears the burden of establishing’ standing.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (citation omitted). “[S]tanding generally has three requirements: (1) an injury in fact; (2) causation; and (3) redressability.” Colo. Outfitters Ass‘n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (To establish Article III standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a favorable decision.“). Addressing each in turn, we conclude Mr. Frank has standing.
1
“To establish . . . an injury [in fact] in the context of a pre-enforcement challenge to a criminal statute, a plaintiff must typically demonstrate (1) ‘an intention to engage in a course of conduct arguably affected with a
The district court found Plaintiff had alleged more than a vague desire to engage in proscribed activity—Mr. Frank specifically alleged the actions he would perform but for the electioneering statute. The court also found a credible threat of prosecution because Wyoming had not disavowed enforcing the statute as applied to Plaintiff‘s proposed conduct, and Ms. Horal had been cited for similar signature-gathering activities.
On appeal, Defendants argue Plaintiff lacks standing because he has not met the first and third requirements we set out in Walker v. City of Utah: “(1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans,
But as Plaintiff Frank correctly observes, a plaintiff need not establish all three elements to demonstrate an injury in fact. Walker held a plaintiff “can” satisfy the injury requirement by establishing these three elements, not that a plaintiff must do so to proceed. Id. Indeed, Walker recognized “evidence of past activities obviously cannot be an indispensable element—people have a right to speak for the first time.” Id. This follows the first principle of pre-enforcement actions—an individual need not violate the law to challenge it. Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2308 (2023) (considering pre-enforcement challenge by plaintiff who “ha[d] yet to carry out her plans” because “she worrie[d] that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief[s]” (emphasis added)). A plaintiff need only demonstrate “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a
Plaintiff Frank has also adequately demonstrated “a credible threat that the statute will be enforced.” Walker, 450 F.3d at 1089. As he correctly points out, a credible threat of prosecution can be found where no actual threats have been made. “The threat of prosecution is generally credible where a challenged ‘provision on its face proscribes’ the conduct in which a plaintiff wishes to engage, and the state ‘has not disavowed any intention of invoking the . . . provision’ against the plaintiff.” Sup. Ct. of N.M., 839 F.3d at 901 (quoting United Farm Workers Nat‘l Union, 442 U.S. at 302).
Here, the statute proscribes the conduct Plaintiff wishes to engage in—distributing campaign literature and displaying campaign bumper stickers—and Defendants have not affirmatively disavowed any intent to prosecute. The record confirms the statute is routinely enforced. There is no reason to believe Plaintiff Frank would escape prosecution for his proposed conduct.
Accordingly, we discern no error in the district court‘s conclusion that Plaintiff established an injury in fact.
Defendants contend the district court erred in concluding Plaintiff satisfied the causation element of standing. To that end, they reprise arguments that (1) the Secretary of State and County Clerk have no enforcement authority and (2) the District Attorney has not threatened prosecution. We have already rejected these contentions.
“[T]he causation element of standing requires the named defendants to possess authority to enforce the complained-of provision . . . . Whether the Defendants have enforcement authority is related to whether, under Ex parte Young, they are proper state officials for suit.” Kitchens v. Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014) (citation omitted).
As we have explained, the Secretary of State and County Clerk are the proper state officials for suit because they have a sufficient connection to the enforcement of the challenged statute. They are the chief elections officials responsible for ensuring compliance with the elections laws and they have authority to refer violators for prosecution. See
As for the District Attorney, Defendants cite no authority to support their assertion that an actual threat of prosecution is required. Indeed, that
Accordingly, we agree with the district court that Plaintiff also established the second element of standing.
3
Neither party addressed redressability in the district court, and the district court noted it could not think of any potential redressability problems for Plaintiff. On appeal, Defendants expressly declined to address redressability, and Plaintiff contends we should consider this issue waived. In their reply brief, Defendants insist the issue is not waived because
We will consider the issue ourselves. See Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (“[S]tanding is a component of this court‘s jurisdiction, and we are obliged to consider it sua sponte to ensure the existence of an Article III case or controversy.”). Redressability is established if “it is likely that the injury will be redressed by a favorable decision.” Kitchens, 755 F.3d at 1201 (citation omitted). “Plaintiffs suing
As we explained, Defendants have a sufficient connection to the enforcement of the challenged statute and thus are the proper officials for suit. Moreover, Plaintiff seeks a declaratory judgment that the statute is unconstitutional and injunctive relief against its enforcement. A favorable decision against Defendants granting this relief is likely to redress Plaintiff‘s alleged constitutional injury. Accordingly, Plaintiff satisfies the redressability requirement.
III
We now proceed to the merits of the district court‘s rulings on summary judgment. “We review the district court‘s grant of partial summary judgment de novo, and we apply the same legal standards as the district court.” Sup. Ct. of N.M., 839 F.3d at 906 (quotation omitted). “Where, as here, we are presented with cross-motions for summary judgment, we ‘must view each motion separately,’ in the light most favorable to the non-moving party, and draw all reasonable inferences in that party‘s favor.” Id. at 906–07 (quotation omitted).
1
a. Mills v. Alabama
The Supreme Court first addressed the propriety of state electioneering regulations on speech in Mills v. Alabama. In November 1962, the city of Birmingham held an election to decide whether to replace the current form of government (a city commission) with a new one (mayor-council). Mills, 384 U.S. at 215. At the time, Alabama prohibited “any electioneering or . . . solicit[ation of] any votes . . . in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.” Id. at 216 (second alteration in original) (citing
The Court pointedly reserved the issue of polling-place electioneering conduct: “[T]his question [in Mills] in no way involves the extent of a State‘s power to regulate conduct in and around the polls in order to maintain peace, order and decorum there.” Id. at 218. Two decades later, the Supreme Court visited that issue.
In Burson, the Court considered the constitutionality of a Tennessee statute prohibiting “the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place [on election day].” 504 U.S. at 193.17
At the outset, the plurality explained Tennessee‘s electioneering statute imposed a content-based restriction on political speech in a
Tennessee maintained its electioneering law was necessary to “protect[] the right of its citizens to vote freely for the candidates of their choice” “in an election conducted with integrity and reliability.” Id. at 198–99. The Supreme Court agreed these interests are “obviously . . . compelling ones.” Id. at 199 (first citing Reynolds v. Sims, 377 U.S. 533, 555 (1964); then citing Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989)). Burson thus made explicit what was assumed in Mills: “[T]hat a State has a compelling interest in protecting voters from confusion and
Moreover, that seven of the eight Justices concluded strict scrutiny applied suggests it would be inappropriate to apply Justice Scalia‘s less exacting standard. See United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (“[T]he Marks rule produces a determinate holding ‘only when one opinion is a logical subset of other, broader opinions.’” (quotation omitted)).
Our conclusion that the plurality in Burson controls aligns with the decision of the only other federal court of appeals to have expressly addressed the question. See Citizens for Police Accountability Political Comm., 572 F.3d at 1217 n.9 (looking to the plurality opinion for guidance because Justice Scalia‘s rationale “seems to be broader”). Other circuits have applied the plurality opinion without discussion. See Schirmer, 2 F.3d at 120; Russell, 784 F.3d at 1050.
Having decided the compelling interests inquiry in favor of the state, the Court still needed to determine whether Tennessee‘s 100-foot buffer zone was necessary to vindicate these interests. To answer this question, the Court “examin[ed] the evolution of election reform, both in this country and abroad,” which “demonstrate[d] the necessity of restricted areas in or around polling places.” Id. at 200. This history—beginning with the colonial-era viva voce voting method, or “by showing of hands,” id., to handwritten paper ballots produced for voters by political parties wishing to gain influence—“reveal[ed] a persistent battle against two evils: voter intimidation and election fraud,” id. at 206. To combat these “two evils,” all fifty states, including Tennessee, “settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments.” Id. “[T]his widespread and time-tested consensus,” id., therefore, led the plurality to conclude “that some restricted zone around the voting area is necessary to secure the State‘s compelling interest,” id. at 208.
That left the matter of what sort of restriction around the polling place would be narrowly drawn for constitutional purposes. “The real question,” the Court explained, was “how large a restricted zone is permissible or sufficiently tailored[?]” Id. at 208. To answer that question,
The modified burden was the appropriate standard, the Court explained, “because a government has such a compelling interest in securing the right to vote freely and effectively.” Id. at 208. The plurality observed the inherent difficulty a state would face in attempting to produce empirical evidence to justify the precise geographic scope of its chosen buffer zone. Id. at 209. In the plurality‘s view, “a State‘s political system” should not have to “sustain some level of damage before the legislature could take corrective action. Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does
Applying the “modified ‘burden of proof,’” id. at 209 n.11, the Burson plurality determined Tennessee‘s “minor geographic limitation” was not “a significant impingement. Thus, [the Court] simply d[id] not view the question whether the 100-foot boundary line could be somewhat tighter as a question of ‘constitutional dimension.’” Id. at 210. “Reducing the boundary to 25 feet,” for example, “is a difference only in degree, not a less restrictive alternative in kind.” Id. Estimating it “takes approximately 15 seconds to walk 75 feet,” the “State of Tennessee has decided that these last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible. [The Court] d[id] not find that this is an unconstitutional choice.” Id.
To be sure, the plurality recognized, “At some measurable distance from the polls, . . . governmental regulation of vote solicitation could effectively become an impermissible burden akin to the statute struck down in Mills.” Burson, 504 U.S. at 210. Or the statute in Meyer v. Grant, 486 U.S. 414 (1988), which invalidated Colorado‘s “absolute bar” against paying circulators to gather signatures in support of ballot initiatives. Burson, 504 U.S. at 210. Mills and Meyer involved legislation effecting complete bans on election-related conduct. By contrast, the “minor geographic limitation”
At bottom, the Court rejected any “litmus-paper test” that will separate valid from invalid restrictions,” and the plurality thought it “sufficient to say that in establishing a 100-foot boundary, Tennessee is on the constitutional side of the line.” Id. (citation omitted).
c. Minnesota Voters Alliance v. Mansky
In Mansky, the Court again considered the constitutionality of a state‘s electioneering regulations. This time, the Court held unconstitutional a Minnesota law prohibiting voters from “wear[ing] a political badge, political button, or anything bearing political insignia inside a polling place on Election Day.” 138 S. Ct. at 1882. In doing so, the Court reaffirmed the compelling state interests underlying electioneering regulations as articulated in Burson—the prevention of “fraud, voter intimidation, confusion, and general disorder.” Id. at 1886. And it emphasized the physical process of “[c]asting a vote is a weighty civic act” entitling voters to “an island of calm” to “peacefully contemplate their choices.” Id. at 1887 (citation omitted). The Court held “Minnesota may choose to prohibit certain apparel [in the polling place] because of the
What Minnesota could not do, however, was vindicate its interests by drawing an “[un]reasonable line” restricting voters’ freedom of speech. Id. Under Burson‘s “strict scrutiny [framework] applicable to speech restrictions in traditional public forums,” id. at 1886, the Mansky Court concluded Minnesota‘s apparel ban—with its “unmoored use of the term ‘political’” and “haphazard interpretations . . . in official guidance,” id. at 1888—failed to “support its good intentions,” id. at 1892. The problem, in other words, was not Minnesota‘s laudable goal. It was how the state sought to achieve it—“with a law [in]capable of reasoned application.” Id. at 1892.
2
From these precedents, we derive these principles.
First, because electioneering restrictions arise at the intersection of two fundamental rights—the First Amendment right to freedom of speech and the right to vote in an election free from interference and intimidation—content-based restrictions on political speech in a public forum are subject to “exacting,” or strict, scrutiny. Mansky, 138 S. Ct. at 1885 (citing Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009)).
Second, when a state‘s electioneering prohibitions protect the act of voting, the Supreme Court recognized, first in Mills and Burson and then
Third, “some restricted zone around polling places” is permissible to achieve the state‘s compelling interests. Id. at 211. The restrictions chosen by the state, however, must be narrowly tailored. Id. at 197.
Fourth, to determine whether a chosen restriction is narrowly tailored, Burson posits a relaxed, or modified, “burden of proof.” The regulation must be reasonable and not significantly impinge on constitutionally protected rights. Id. at 209. But a state is not “requir[ed] [to] pro[ve],” with empirical evidence, “that an election regulation is perfectly tailored.” Id. Rather, in recognition of the deference due to states conducting elections, and because it would be “difficult to isolate the exact effect of these laws on voter intimidation and election fraud,” id. at 208, courts need only look for a state‘s explanation why its restriction, whatever it may entail, is what it is. See id. at 209 (quoting Munro, 479 U.S. at 195–96) (“Legislatures . . . should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively.”).
Fifth, even state regulations designed to protect the act of voting may significantly impinge constitutional rights where they approach a total ban
Finally, where the “First Amendment right [does not] threaten[] to interfere with the act of voting itself,” such as “regulations directed at intangible ‘influence’” and other election-related conduct, the modified burden does not apply. Id. at 209 n.11. Instead, in those circumstances, “[s]tates must come forward with more specific findings to support [the] regulation[].” Id.
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With these general principles in mind, we turn to Plaintiff Frank‘s constitutional challenges to Wyoming‘s electioneering statute.
IV
First, we address the spatial scope of the 300-foot election-day buffer zone and the conduct Wyoming proscribes within it. As we explain, we find these aspects of the electioneering statute pass constitutional muster.
According to the district court, “Defendants have presented no argument—and offered no evidence—to explain why the statute requires an electioneering buffer zone much larger than the [100-foot] regulation upheld in Burson.” Joint App. at 416–17. For this reason, the district court concluded Wyoming‘s 300-foot election-day buffer zone violated the First Amendment.
On appeal, Defendants contend the district court misunderstood Burson, which does not require a state to produce empirical evidence to show that an electioneering regulation that protects against interference with the act of voting itself is narrowly tailored. Rather, as Defendants explained before the district court, to establish that the geographic scope of the buffer zone around the polling place is constitutionally permissible, it simply must be reasonable and not a “significant impingement” on First Amendment rights.
In response, Plaintiff Frank contends the district court correctly applied the “modified ‘burden of proof’” in Burson and properly struck down the election-day buffer zone due to the state‘s failure to produce any evidence demonstrating why 300 feet is a narrowly tailored restriction.
Defendants have the better argument, and we reverse.
As we have explained, the Supreme Court has relaxed the demands of the narrow-tailoring inquiry when a state‘s electioneering regulations are designed to protect voters engaged in the act of voting. Here, though, the district court struck down the 300-foot buffer zone protecting election-day voters because Defendants failed to prove, with empirical evidence, that Wyoming‘s 300-foot buffer zone was necessary. This heightened burden imposed on Defendants by the district court is inconsistent with Supreme Court precedent.
In the limited but vital context of polling-place restrictions, Burson modified the narrow-tailoring inquiry. Faithful application of Burson‘s standard means a district court need only ask whether a state‘s legislative “response”—here, Wyoming‘s 300-foot election-day buffer zone—“is reasonable and does not significantly impinge on constitutionally protected rights.” Burson, 504 U.S. at 209 (citation omitted). If the standard were otherwise, Burson explained, a state‘s ability to proactively protect the act of voting at the polls might be threatened. Id.; see also Munro, 479 U.S. at 195 (“To require States to prove actual voter confusion . . . as a predicate to the imposition of reasonable ballot access restrictions would invariably lead to endless court battles over the sufficiency of the ‘evidence’ marshaled by the State to prove the predicate.”). “Burson‘s solicitude for state sovereignty
It is reasonable at first blush to assume a “modified ‘burden of proof’” means an evidentiary burden of production. But Burson did not require Tennessee to put forth empirical evidence justifying the size of its buffer zone. Nor do our sister circuits, relying on Burson. See Russell, 784 F.3d at 1053 (“[I]n this context,” “a State need not have a strong evidentiary basis for the law to withstand strict scrutiny.”); Anderson, 356 F.3d at 656 (describing the modified burden as requiring only that “the state must demonstrate that its response is ‘reasonable and does not significantly impinge on constitutionally protected rights’” (quoting Burson, 504 U.S. at 209)).18
Saul Zipkin, The Election Period and Regulation of the Democratic Process, is complex” precisely because it must “be applied in scores of different topical settings, resulting in . . . unique doctrinal tests tailored to the specific circumstances of each setting.” 1 Smolla & Nimmer on Freedom of Speech § 4:5 (updated Apr. 2023). The Supreme Court, therefore, applies “specialized tests that displace the strict scrutiny formulation, while maintaining protection for speech equal to or greater than strict scrutiny,” in a variety of areas. Id. § 4:3; see, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (potential incitement to violence); New York Times Co. v. United States, 403 U.S. 713 (1971) (prior restraints); Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980) (protection of press access to trials); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (protection of libelous speech involving public officials and public figures).
2
The district court relied on two out-of-circuit decisions—Russell and Schirmer—to conclude Defendants “did not meet their burden to demonstrate that the statute‘s 100-yard electioneering buffer zone is ‘reasonable and does not significantly impinge on constitutionally protected rights.‘” Joint App. at 416–17 (citation omitted). Neither Russell nor Schirmer is, of course, binding in this circuit. In any case, both are distinguishable, as Defendants persuasively explain.
In Russell, the Sixth Circuit evaluated a challenge to Kentucky‘s successor electioneering statute, after the prior version—including a 500-foot buffer zone—had been struck down because evidence in the record
In Schirmer, the Fifth Circuit considered, and rejected, a challenge to Louisiana‘s electioneering statute creating a campaign-free zone of 600 feet around polling places. 2 F.3d at 118. The court first concluded Louisiana “undoubtedly” had a compelling interest “to protect its citizens’ right to vote.” Id. at 121. As to whether the buffer zone was narrowly tailored to protect that interest, the court described Burson‘s modified “burden” framework and recognized the likelihood “the [Burson] plurality would have supported a 600-foot limitation.” Id. at 122. The Schirmer court reinforced its conclusion by pointing to testimony from a state representative who had authored the statute, describing that a 600-foot buffer zone was necessary because the state‘s previous 300-foot buffer zone failed to dissuade
Contrary to the district court‘s understanding, Schirmer credited—but did not require—this evidence. Thus, Schirmer is not inconsistent with our holding today—nothing would bar this court from considering similar evidence were Wyoming to provide it, but nothing in Burson requires a state to proffer such evidence to justify the reasonableness of its buffer zone.
****
For these reasons, the district court erred in assigning Defendants the burden of producing evidence demonstrating the 100-foot buffer zone approved in Burson was insufficient and that a 300-foot zone was necessary. Instead, Wyoming‘s choice to impose a 300-foot buffer zone is permissible “provided that [it] is reasonable and does not significantly impinge on constitutionally protected rights.” Burson, 504 U.S. at 209 (quoting Munro, 479 U.S. at 195). Having clarified the correct legal standard that applies to the narrow-tailoring inquiry, we now apply it.
3
Defendants contend Wyoming‘s 300-foot election-day buffer zone complies with Burson because it “is not so wide as to become an ‘impermissible burden,‘” Opening Br. at 31, and it is “narrowly tailored to
There is no dispute Wyoming has a compelling interest in regulating electioneering.21 The only question before us is whether Wyoming‘s 300-foot election day buffer zone is narrowly tailored to serve that interest. Under the “modified burden” in Burson, we ask whether the “geographic limitation” prescribed by
There is an absence of “legislative history explaining the Wyoming Legislature‘s decision to arrive at 100 yards in 1973,” Opening Br. at 31, but that is neither surprising nor fatal to the reasonableness of the statute‘s 300-foot buffer zone. After all, “[t]he majority of [electioneering] laws were adopted originally in the 1890s,” including in Wyoming, “long before States engaged in extensive legislative hearings on election regulations.” Burson, 504 U.S. at 208; see also id. at 215 n.1 (Scalia, J. concurring). “The
Defendants also assert Wyoming‘s election-day buffer zone does not “significantly impinge on constitutionally protected rights.” Opening Br. at 34. Again, we agree.
Burson was hardly concerned with the exact size of the buffer zone. It “simply d[id] not view the question whether the 100-foot boundary line could be somewhat tighter as a question of ‘constitutional dimension.‘” 504 U.S. at 210. That is, of course, so long as the distance was not so expansive that it constituted a total ban on electioneering. See id. The Court cautioned that “[a]t some measurable distance from the polls . . . government regulation of vote solicitation could effectively become an impermissible burden akin to the statute struck down in [Mills].” Id. But that is not the statute before us.
Wyoming‘s electioneering statute does not approach the absolute electioneering ban invalidated in Mills and Meyer. By pointing us to these
Moreover, we do not understand Burson‘s “at some measurable distance” line-drawing to fall arbitrarily between 100 and 300 feet. Here, the 300-foot buffer zone, while larger than the 100-foot zone at issue in Burson, still does not come close to a total ban on electioneering around the polls on election day. Reducing the 300-foot boundary to 100 feet “is a difference only in degree, not a less restrictive alternative in kind.” Burson, 504 U.S. at 210.
Yet Plaintiff Frank maintains there is record evidence showing the additional 200-foot radius—beyond the boundary upheld in Burson—constitutes a significant impingement. For instance, Mr. Frank testified in
Wyoming‘s statute only prohibits electioneering within a one-minute walk from the entrance to the polling place; individuals may engage in electioneering anywhere else in the state on Election Day. In Burson, Tennessee decided the “last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible,” which was not “an unconstitutional choice.” Burson, 504 U.S. at 210. Here, Wyoming has decided the last minute should be the voters’ own. Wyoming has endeavored to accomplish a “particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote—a right at the heart of our democracy.” Id. at 198. We agree with Defendants that in establishing a 300-foot election-day buffer zone, Wyoming—like Tennessee—“is on the constitutional side of the line.” Id. at 211.
Having concluded the size of Wyoming‘s election-day buffer zone is constitutional, we consider Plaintiff‘s challenge to the conduct proscribed within that zone, specifically, displaying bumper stickers.
Recall that Wyoming‘s electioneering statute generally applies to “any form of campaigning, including the display of campaign signs.”
This section shall not apply to bumper stickers affixed to a vehicle while parked within or passing through the distance specified in this subsection, provided that:
(i) There is only one (1) bumper sticker per candidate affixed to the vehicle;
(ii) Bumper stickers are no larger than four (4) inches high by sixteen (16) inches long; and
(iii) The vehicle is parked within the distance specified in this subsection only during the time the elector is voting.
The district court held Wyoming‘s so-called “ban on bumper stickers” violated the First Amendment and was facially invalid under Burson. Joint App. at 419. Because “Defendants ha[d] presented no evidence that the statute‘s ban on bumper stickers . . . is ‘reasonable and does not significantly impinge on constitutionally protected rights,‘” 22 Joint App. at 419
On appeal, Defendants contend that a bumper sticker is no different from any other campaign sign—it is merely a campaign sign affixed to a car. According to Defendants, Wyoming‘s statute is thus no broader than the Tennessee statute approved in Burson, which prohibited all campaign signs, including bumper stickers, within the buffer zone. Thus, Defendants contend Burson squarely controls and the district court‘s ruling should be reversed. We agree.
We review de novo a district court‘s determination of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991). Under Wyoming law, “if the language is clear and unambiguous, we must abide by the plain meaning of the statute; if a statute is ambiguous, we may resort to general principles of construction.” Abeyta v. State, 42 P.3d 1009, 1011–12 (Wyo. 2002) (quoting Amrein v. State, 836 P.2d 862, 864–65 (Wyo. 1992)).
First, we agree with Defendants that a political bumper sticker is a “campaign sign.” As they correctly observe, it is essentially a campaign sign on a car. See Int‘l Bhd. of Elec. Workers, AFL-CIO, Local No. 1 v. St. Louis County, 117 F. Supp. 2d 922, 932 (E.D. Mo. 2000) (upholding county rules and guidelines restricting political activities by employees, including distributing campaign literature, making telephone calls, driving voters to the polls, and displaying bumper stickers on cars used for work or parked in county-owned lots); Frumer v. Cheltenham Township, 545 F. Supp. 1292, 1296 n.9 (E.D. Pa. 1982), aff‘d, 709 F.2d 874 (3d Cir. 1983) (noting “cars with bumper stickers travelling the rights-of-way continually disseminate a political message within the rights-of-way“). By carving out an exception for a single bumper sticker of a certain size, the statute makes clear that bumper stickers are plainly encompassed within “campaign signs” under
Plaintiff Frank contends the Tennessee law in Burson did not apply to bumper stickers. Rather, he says, Burson left open whether a prohibition on campaign bumper stickers would be constitutional. See Resp. Br. at 50 (citing Burson, 504 U.S. at 201 n.13). As to that open question, Plaintiff insists Wyoming‘s bumper sticker ban on election day is unconstitutional on its face and as-applied because it covers cars merely “pass[ing] through” or “park[ing]” within the 300-foot buffer zone. Resp. Br. at 50.
Here, Mr. Frank expressed concern about inadvertently driving through a buffer zone and violating the bumper sticker ban, but the record reflects he “chose not to do” so. Joint App. at 313. And while Defendants have not disavowed prosecution, a plain reading of Wyoming‘s statute indicates inadvertent conduct is not covered.
With Burson guiding our analysis, we conclude Wyoming‘s prohibition on campaign bumper stickers within the Election Day buffer zone is permissible both facially and as applied. Burson recognized that states may regulate campaign signs to protect voters engaged in the act of voting from confusion, undue influence, and to preserve the integrity of the election process. 504 U.S. at 198–99. Unlike the Tennessee statute in Burson, Wyoming‘s statute is not an absolute prohibition on all campaign bumper stickers within 300 feet of an election day polling place.26 Wyoming‘s scheme
V
A
In Wyoming, recall, absentee polling places are open for 45 days before an election. See
In the district court, Plaintiff Frank contended Wyoming‘s absentee polling place buffer zone was unconstitutional because its “dramatic
On appeal, Plaintiff Frank reprises his argument that the size and scope of the absentee buffer zone together render it unreasonable and a significant impingement on First Amendment rights. Defendants respond that absentee voters are “entitled to the same protection from undue influence and confusion as regular election-day voters” and the district court “properly concluded” the buffer zone “complied with Burson.” Reply Br. at 32–33.
The statute in Burson entailed a combination of restrictions designed to protect the act of voting: It “prohibit[ed] the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place” on election day. 504 U.S. at 193. The plurality upheld this statute in full, concluding Tennessee‘s legislative response, i.e., the combination of electioneering restrictions around a polling place, were “reasonable and [did] not significantly impinge on constitutionally protected rights.” Id. at 209 (emphasis and citation omitted).
In Defendants’ view, Burson “did not premise its holding on the duration or length of the buffer zone; rather, it focused on the amount of speech the state could regulate to protect the fundamental right to vote.” Reply Br. at 34. We agree. Where we diverge from Defendants, and the district court, is on what this means for the narrow-tailoring inquiry. As we understand it, Burson teaches that courts evaluating a state‘s electioneering regulation must consider the burden on speech resulting from the state‘s chosen method of protecting the right to cast a ballot. A meaningful analysis is not piecemeal; instead, it should account for every component of the restriction. Otherwise, a court cannot determine whether
The absentee buffer zone at issue here, like that in Burson, is a combination of size, time, and conduct prohibitions: Wyoming seeks to prohibit “any form of campaigning, including the display of campaign signs or distribution of campaign literature, the soliciting of signatures to any petition or the canvassing or polling of voters” [conduct] “within one hundred (100) feet” of an absentee polling place [size], for “forty-five (45) days before the election” [time].
The geographic scope of the absentee buffer zone is permissible. Indeed, it is identical to that approved by the Supreme Court in Burson. 504 U.S. at 221. But we cannot resolve whether Wyoming‘s electioneering restrictions around absentee polling places constitute an impermissible restraint on First Amendment speech by looking only at the physical size of the buffer zone. Rather, that question can be answered only after a holistic inquiry—one that grapples with size, conduct, and temporal scope as components of a regulatory act.
The district court declined to address this issue because it believed Burson‘s holding was not premised on the temporal scope of Tennessee‘s election-day buffer zone. That Burson did not address the temporal scope of Tennessee‘s statute, as we explained, does not make it irrelevant. A
VI
Finally, Plaintiff Frank‘s verified complaint “raise[d] jus tertii claims of third parties not before this Court who should be allowed to engage in First Amendment protected electioneering near polling places and absentee polling places.” Joint App. at 23. This allegation specifically included “those who have the right to post political signs on their property within a buffer zone, but who cannot [do so] due to the reach of Wyoming law.” Id. The district court expressly declined to consider this claim, ruling, in full, “Neither of the [then-]Plaintiffs own, rent, or have permission to electioneer on private property within electioneering buffer zones in Wyoming. The
To the extent the district court concluded Plaintiff Frank lacked jus tertii standing, we agree. “In a jus tertii case, a litigant is permitted to challenge the enforcement of a statute against himself and also assert that the legal duties imposed on the litigant operate to violate third parties’ rights.” Mata Chorwadi, Inc. v. City of Boynton Beach, 66 F.4th 1259, 1265 (11th Cir. 2023). That is, “[t]he key to jus tertii standing is the causal connection between the litigant‘s injury and the violation of the third parties’ constitutional rights.” Id. at 1266. For purposes of jus tertii standing, a plaintiff “must show that ‘the party asserting the right has a “close” relationship with the person who possesses the right,‘” and “there is a ‘hindrance’ to the possessor‘s ability to protect his own interests.” Aid for Women v. Foulston, 441 F.3d 1101, 1111–12 (10th Cir. 2006) (citations omitted). Here, despite repeatedly invoking the words ”jus tertii,” Plaintiff never made this two-part showing. And on the record before us, we cannot discern how—beyond arguments of counsel—such a showing could be made.
The overbreadth doctrine “enable[s] persons who are themselves unharmed by the defect in a statute nevertheless ‘to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.‘” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484 (1989) (quoting Broadrick v. Oklahoma, 413 U.S 601, 610 (1973)). The “normal rule [is] that partial, rather than facial, invalidation is the required course.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). However, where a statute is facially overbroad—that is, “a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep,” United States v. Stevens, 559 U.S. 460, 473 (2010) (quotation omitted)—facial invalidation of the statute may be appropriate if it cannot be “cured by giving the statutory language a limiting construction,” Harmon v. City of Norman, 981 F.3d 1141, 1153 (10th Cir. 2020). See also Smolla & Nimmer, supra note 18, § 6:6
Here, we struggle to see how Plaintiff would not have standing under Broadrick. “The traditional rules governing constitutional adjudication are largely inverted when it comes to litigation over First Amendment rights.” Smolla & Nimmer, supra note 18, § 6:6. When compared to “as applied” challenges, “facial” challenges to statutes are typically strongly disfavored. Id. But in cases like this, “[t]he challenged law need not have been applied against the challenger at all; as long as the barebones requirements of Article III standing are met, the elements of prudential standing are presumed satisfied in an overbreadth challenge.” Id. (emphasis added); see also Broadrick, 413 U.S. at 612 (“[T]he Court has altered its traditional rules of standing to permit—in the First Amendment area—‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.‘” (citation omitted)).
To the extent Plaintiff seeks to challenge the electioneering statute as unconstitutionally overbroad because it chills the speech of third-party property owners, we conclude Broadrick‘s narrow exception for standing applies. Thus, any contrary determination by the district court was erroneous.
The district court correctly observed Plaintiff does not “own, rent, or have permission to electioneer on private property within electioneering buffer zones in Wyoming.” Id. However, it does not necessarily follow there was an insufficient record to address Plaintiff Frank‘s overbreadth challenge based in part on the statute‘s application to property owners. As Plaintiff correctly points out, he did present evidence that state actors had enforced the statute against individuals for speech on their own property. For example, an employee of the Laramie County Clerk‘s Office testified that a campaign sign on private property within a buffer zone violates the law. She testified that she has asked homeowners to remove such signs, and if the homeowners are not there, poll workers will remove the signs themselves. A representative of the Secretary of State‘s Office confirmed this general practice. Thus, there was a factual record to consider the merits of Plaintiff‘s claim that the statute was unconstitutionally overbroad because, among other reasons, it captured campaign signs on private property.
VII
We AFFIRM the district court‘s rulings that Defendants are not entitled to sovereign immunity and Plaintiff has Article III standing.
We REVERSE both the district court‘s ruling that the geographic scope of the 300-foot buffer zone at election-day polling places is unconstitutional, and its holding on the display of bumper stickers within that zone. That election-day regulation, too, is constitutional.
We VACATE the district court‘s ruling on the constitutionality of the 100-foot absentee polling place buffer zone. On remand, the district court should consider in the first instance whether this buffer zone passes constitutional muster. It should do so after considering both the geographic and the temporal scope, as well as the conduct proscribed within.
We also REMAND for the district court to consider in the first instance Plaintiff‘s overbreadth claim.
Notes
We directed the parties to submit supplemental briefing on a threshold question: “What standard should this court apply from [Burson] given there is no majority opinion in that case?” Order at 1, Apr. 25, 2022. The parties were ordered to address the Marks rule: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds[.]’” Marks v. United States, 430 U.S. 188, 193 (1977) (quotation omitted).
In their supplemental briefs, the parties agreed the Burson plurality opinion was the narrowest ground relied on by the Justices concurring in the judgment. As we will explain, the Burson plurality (written by Justice Blackmun and joined by Chief Justice Rehnquist and Justices White and Kennedy) concluded Tennessee‘s electioneering prohibition survived a modified version of strict scrutiny. 504 U.S. at 193, 211. Justice Kennedy joined the plurality but also wrote separately to “elaborat[e] on the meaning of the term ‘content based.’” Id. at 212. Justice Scalia, concurring in the judgment, concluded the area around a polling place is not a “traditional public forum,” and the statute “is constitutional because it is a reasonable, viewpoint-neutral regulation.” Id. at 214. The dissent, authored by Justice Stevens and joined by two other Justices, concluded the statute failed strict scrutiny. Id. at 217. Justice Thomas took no part in the case. Id. at 211.
The plurality opinion is narrower than Justice Scalia‘s concurrence, and, as the parties agree, it must be deemed the holding under Marks.
Burson‘s modification to the strict scrutiny test under the unique circumstances here—where “there is a conflict between First Amendment rights” and “the act of voting itself”—is not unusual. 504 U.S. at 209 n.11. Indeed, the Supreme Court has recognized the “quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Nixon v. Shrink Mo. Gov‘t PAC, 528 U.S. 377, 391 (2000); see also id. at 390–91 (rejecting argument a state campaign finance statute is void “for want of evidence” when the state‘s asserted interests are “neither novel nor implausible”). “Modern First Amendment jurisprudence