Just in time for next week’s California primary, the Supreme Court ruled Tuesday that states may create a “campaign free zone” around polling places and bar any leafletting and last-minute solicitations by candidates.
On a 5-3 vote, the justices rejected arguments that the First Amendment’s guarantee of freedom of speech prohibits states from “censoring” campaign talk near the doors of a polling place.
Forty-seven states have such laws, most dating from the 19th Century, which restrict campaigning in close proximity to polling stations. California law forbids “electioneering” of any sort within 100 feet of the room in which voters cast their ballots. Tuesday’s decision has the effect of affirming all of those laws.
Justice Harry A. Blackmun, writing for the court, agreed that such laws infringe upon the First Amendment, but he concluded that they are nonetheless justified by “the state’s compelling interest in preventing voter intimidation and election fraud.”
Although the Constitution protects free discussion about political matters, it also protects “the right to vote freely and effectively,” he added.
Two years ago, the Tennessee Supreme Court struck down that state’s law and ruled that officials may not block leafletting outside the polling place. It concluded that voters were not intimidated by last-minute appeals nor were they dissuaded from voting because of Election-Day leafletting.
State Atty. Gen. Charles Burson appealed that decision, and a divided Supreme Court reversed it Tuesday in the case of Burson vs. Freeman, 90-1056.
“We simply do not view the question whether the 100-foot boundary line could be somewhat tighter as a question of constitutional dimension,” Blackmun said. “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. We do not find that this is an unconstitutional choice.”
The justices did not use the case to write new law on the First Amendment. Instead, they split over how to apply their well-established rules for deciding such disputes.
Four members of the court--Chief Justice William H. Rehnquist and Justices Byron R. White, Anthony M. Kennedy and Blackmun--agreed that the law could be upheld because the state’s interest was “compelling.” Justice Antonin Scalia cast the deciding fifth vote for the majority, but wrote separately to say that the state need not have a “compelling” interest in order to uphold a “viewpoint-neutral” restriction on free speech.
In dissent, Justices John Paul Stevens, Sandra Day O’Connor and David H. Souter said the state had failed to prove it had a compelling reason for “its silencing of political expression.” Justice Clarence Thomas took no part in the decision since the case was argued before he joined the court.