Landlords need not provide voter information

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The First Amendment protects citizens from compelled speech, even for a really good cause.

That was the ruling by U.S. District Court Judge Wilhelmina Wright on March 2, finding St. Paul and Minneapolis ordinances requiring landlords to provide new tenants with voter-registration facially unconstitutional.

The ordinances have been in effect in St. Paul since 2018 and Minneapolis since 2016. To comply, a landlord must distribute a flyer designed and provided by the city clerk of the city where the property is located. Failure to comply was a petty misdemeanor in St. Paul and could have meant the loss of a rental license in Minneapolis.

Wright granted summary judgment to the plaintiffs and permanently enjoined enforcement of the ordinances. The plaintiffs’ complaint requested damages and attorney fees, which Wright said must be requested in a separate motion.

“The Court recognizes Defendants’ laudable goal of encouraging participation in such a fundamental practice of our democracy as voting. But this goal cannot be achieved by the unconstitutional means of compelled speech,” Wright ruled.

Facial challenge

The plaintiffs are a nonpartisan nonprofit corporation, Minnesota Voters Alliance, formed with the primary purpose of educating and empowering the electorate, and individual landlords. Landlords in both cities are members of the alliance. The plaintiffs oppose the ordinance and their underlying policy but distribute the flyers because they fear criminal prosecution.

The group is best known for Minnesota Voters Alliance v. Mansky, a case that led to the U.S. Supreme Court invalidating the state’s broad restrictions on voters wearing “political” attire to the polls.

To prevail on a facial challenge, the party challenging the government’s action must establish that no set of circumstances exists under which the law would be valid or that the law lacks any plainly legitimate sweep, said Wright. In a First Amendment context, a law also may be invalidated on a facial challenge as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the law’s plainly legitimate sweep, the judge continued.

The court proceeded with a strict-scrutiny standard of review, contrary to the objections of the defendants. The defendants argued that the claims pertain to government speech that is immune from a First Amendment freedom-of-speech challenge. In the alternative, the defendants argued, intermediate scrutiny applies.

Strict scrutiny

The defendants argued that government speech is not regulated by the First Amendment, even if the government uses private entities to convey a governmental message. Wright agreed that the flyers that it required landlords to distribute were clearly government speech, but that did not end the analysis because the plaintiffs’ challenge pertained to the compelled nature of the speech at issue.

The defendants argued in their brief that the principle at the heart of the compelled speech doctrine is not that the government may not compel private speakers to speak, but that the government may not compel private speakers to propound political messages with which they disagree. “The government can compel statements of factual, non-ideological messages without violating the First Amendment,” the brief states.

But Wright observed that the scrutiny applied depends on whether the defendants’ ordinances are content-neutral or content-based laws. Content-based regulations are subject to strict scrutiny even if they are not applied to ideological speech, the court said.

The defendants also argued that competing fundamental rights are involved in this case — First Amendment rights and voting rights, requiring an intermediate scrutiny standard that balances those rights. But the court disagreed, saying “To the extent that competing fundamental rights are implicated, those competing rights are accounted for when evaluating whether the challenged regulation involves a compelling government interest.”

The court then turned to that issue, observing that the defendants established a compelling government interest in encouraging voter registration and participation.

However, Wright continued, the government must also establish that the ordinances are narrowly tailored to serve that compelling government interest. They provide an effective way to give voter registration material to tenants and are a minimal burden on the landlords, the defendants argue. But the constitutionally relevant burden is not the cost or inconvenience to the landlords but is that the government is putting particular messages in the mouths of unwilling speakers, the judge wrote.

Underinclusivity raises doubt

But the plaintiffs counter that the ordinances are underinclusive, because they reach only new tenants. “This underinclusivity raises doubt as to whether Defendants’ ordinances are appropriately tailored to advance the compelling interest of educating and increasing voter participation by all renters,” Wright stated. (Emphasis by court.)

Furthermore, there is nothing in the record that addresses the actual or purported effectiveness of the ordinances, the court said.

Plaintiffs also argued that the ordinances are not narrowly tailored because other less-restrictive means are available to the defendants.

“These less restrictive alternatives that Plaintiffs identify include delivering brochures to apartment buildings or other locations, conducting voter-registration drives at community events, mailing voter-registration information directly to tenants, or enlisting willing messengers — including willing landlords — to voluntarily convey the information. The record reflects that these alternatives were presented to Defendants before the ordinances were enacted. The record does not reflect, however, why these alternatives are insufficient,” said Wright.

City attorneys for the parties said they do not comment on ongoing litigation. The plaintiff’s attorney could not be reached for comment.