Opinions: Political Apparel in Polling Places and Foreign Law

Ordinarily, the Court decides all of the cases argued during a Term (beginning in October) by the end of June. Occasionally, it may hold a case over for reargument or for some other reason — this happened with Citizens United — but that’s quite rare. And following an unusually slow pace of issuing opinions, the Court is now announcing opinions twice a week, as it approaches the end of June.

In Minnesota Voters Alliance v. Mansky, one of two cases announced last Thursday, the Court decided a First Amendment challenge to a Minnesota law that restricts anyone from entering a polling place while wearing political apparel. In the case itself, for example,  a Minnesota voter Andrew Cilek was asked to leave his polling place because he was wearing a Tea Party-affiliated shirt, which said, “Don’t Tread on Me” and a button, which stated, “Please I.D. Me.” He was eventually allowed to vote, although poll workers took down his contact information.

The Court, in an opinion by Chief Justice John Roberts., first confirmed that the government has “flexibility” in regulating speech in polling places which are “nonpublic forums used for governmental purposes.” A nonpublic forum is “not by tradition or designation a forum for public communication,” and speech regulation in this context generally is upheld if it is reasonable. Indeed, the Court held that Minnesota’s objective in creating “an island of calm in which voters can peacefully contemplate their choices” in the polling place was a reasonable goal, and acknowledged even the less relatively non- disruptive form of speech—apparel—may still harm the sanctity of the polling place. But the Court found the statute unconstitutional because, it held, the ambiguity and overly broad nature of prohibiting “political” speech, coupled with the discretion given to pollworkers in interpreting and enforcing the statute, was not reasonable.

Slate’s Richard L. Hasen applauded the Supreme Court’s decision in Mansky. He observed the Court exercised nuance in striking down a law, on principle it agreed with, but in application, did not. Jessica Levinson, on the other hand, at NBC News called the decision “excruciatingly ironic in light of recent Supreme Court cases that make it more difficult for Americans to exercise their right to vote in the first place.” She points to the recent decision in the landmark decision Husted v. A. Philip Randolph Institute, where the Court allowed Ohio to maintain a voter purge practice of removing voters from the rolls when they do not confirm their address via mailed information cards.

On Thursday, the Court also handed down its opinion in Animal Science Products v. Hebei Welcome Pharmaceutical Co. Ltd.  There, the Court settled a dispute about the extent to which a foreign government’s statements should have an effect on a federal court’s determination of foreign law pursuant to Federal Rule of Civil Procedure 44.1. The case came from the Court of Appeals for the Second Circuit after the Animal Science Products, Inc., a U.S. company, filed a multi-district class action lawsuit against Hebei and other Chinese corporations (Chinese sellers) alleging that they had agreed to fix the price and amount of vitamin C exported to the U.S. from China, in violation of §1 of the Sherman Act (which makes every contract with foreign nations that restrains trade or commerce illegal). Chinese sellers moved to dismiss the case, arguing that Chinese law required them to do so, which would shield them from liability under U.S. law. This motion was denied and the case was eventually tried in front of a jury, which returned a verdict for Animal Science. On appeal, the Second Circuit reversed, holding that federal courts are bound to defer to a foreign government’s construction of their own law when it is reasonable, and should not look beyond the official statement of foreign law submitted by that government.

A unanimous Court, in an opinion by Justice Ginsburg, held that while respectful consideration should be given to a foreign government’s statement of its own law in such a situation, that a federal court is not bound by it. The Court further held that the weight given to a foreign government’s statement of its own laws would properly vary based on a number of facts, such as the clarity and thoroughness of the statement itself, the context and purpose of the statement, and the transparency of the foreign legal system. Law.com discusses the case in detail, here.

ISCOTUS Fellows Zoe Arthurson McColl and Michael Halpin, Chicago-Kent Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018, and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.

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