From Minnesota Voters Alliance v. Ellison, decided today by Eighth Circuit Judge David Stras, joined by Judges Raymond Gruender and Jonathan Kobes:
A group of Minnesotans want to express their belief that certain felons cannot vote. Can the state criminalize their speech? In denying a preliminary injunction, the district court thought so. We disagree….
Minnesota has a law that allows felons to vote unless they are currently behind bars. See Minn. Stat. § 201.014 ["An individual who is ineligible to vote because of a felony conviction has the civil right to vote restored during any period when the individual is not incarcerated for the offense" -EV].
Minnesota Voters Alliance … [takes the] view … that the Minnesota Constitution allows felons to vote only if their "civil rights" have been "restored," which occurs at the end of their sentence. Minn. Const. art. VII, § 1 ["The following persons shall not be entitled or permitted to vote at any election in this state: … a person who has been convicted of … felony, unless restored to civil rights …." -EV] For some, it comes with their release from prison. For others, like those on supervised release, it does not. See Minn. Stat. § 243.05, subd. 1(b) (explaining that parolees "remain[] in the legal custody and under the control of the commissioner" of corrections). The Alliance thinks anyone who is still under the supervision of the Department of Corrections is ineligible to vote because their civil rights remain limited. See Minn. Stat. § 243.05, subd. 1(c) (declaring that "state parole and probation agent[s]" can arrest them without a "warrant" under certain circumstances).
Unable to challenge the law in state court, see Minn. Voters All. v. Hunt (Minn. 2024) (holding that its members lacked standing), the group wants to keep speaking publicly on the issue.
Standing in the way is another Minnesota law aimed at preventing the spread of election disinformation. It states, in relevant part, that:
[a] No person may, within 60 days of an election, cause information to be transmitted by any means that the person:
[1] intends to impede or prevent another person from exercising the right to vote; and
[2] knows to be materially false.
[b] The prohibition in this subdivision includes but is not limited to information regarding the time, place, or manner of holding an election; the qualifications for or restrictions on voter eligibility at an election; and threats to physical safety associated with casting a ballot….Minnesota and Anoka County believe the Alliance's speech falls within one of the "historically unprotected categories" they are free to regulate. The distinction they draw is a fine one: the First Amendment protects speech about "who should be" able to vote, not speech about "who is eligible to vote." The former qualifies as speech designed to generate "political and social change." The latter, however, is the "[s]preading [of] false information in and of itself," because the law is knowable and certain.
The Supreme Court rejected a similar argument in U.S. v. Alvarez (2012). There, the question was whether the First Amendment protected someone who falsely claimed to have won the Congressional Medal of Honor, which was a crime under the Stolen Valor Act. It too was knowable and certain—the speaker either did or did not receive the award—but the Court rejected the idea that the speech was unprotected. In the plurality's words, "some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee."
Minnesota's law cuts off the "open and vigorous expression of views" by criminalizing statements about who can vote, even if, as the Alliance believes, there is room to disagree about it. Like the law in Alvarez, it bans a "false statement made at any time" and "in any place," perhaps even those made by the Alliance in its brief in this case. And the difficulty is in pinpointing exactly where factual speech ends and opinion begins. After all, "expressions of 'opinion' may often imply an assertion of objective fact."
Consider the problem here. On one side, the Alliance relies on a provision of the Minnesota Constitution, an objective fact, to support its opinion that felons still serving their sentences cannot vote. On the other, Minnesota and Anoka County point to a statute, another objective fact, to support their opinion that felons can vote once they leave prison, whether they are on supervised release or not. The government cannot endorse one view and criminalize the other without implicating the First Amendment.
Minnesota Voters Alliance v. Mansky is not to the contrary. To be sure, it left no "doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures." But to say the government may do something does not mean it always can. And Mansky did not say that misleading speech about elections receives no First Amendment protection. Nor could it, given what the Court said about false speech just a few years earlier in Alvarez. Mansky's footnote just makes clear that a state can ban intentionally misleading messages about "voting requirements and procedures" when doing so is consistent with the First Amendment.
Curbing unprotected speech, like fraud, is one situation. But Minnesota's statute does not work like a fraud statute because, like the one in Alvarez, it targets mere knowing misstatements. There is no requirement that someone listening acts upon it to their detriment. Reliance, the element that is missing in Minnesota's statute, is what creates the speech-related harm that leaves fraud unprotected. See Alvarez (plurality opinion) (discussing how "defamation" or "fraud" are types of "legally cognizable harm[s] associated with … false statement[s]"). Other "legally cognizable harm[s]" will do too [citing a case upholding a law that punished accessing others' property by false pretenses]….
Not every harm, however, leaves speech unprotected. If the rule were otherwise, then Alvarez itself would have come out differently. The Supreme Court, after all, had no doubt that "false representations have the tendency to dilute the value and meaning of military awards." Misleading voters can inflict serious harm too. But unlike fraud, defamation, and trespass, there is no "historic and traditional categor[y]" of unprotected speech covering false statements about voting.
In recent years, the Supreme Court has refused to expand the categories of unprotected speech to include "depictions of animal cruelty," violent video games, and most relevant here, non-fraudulent, non-defamatory false statements. Just like those categories, there is no "long … tradition of proscription" of false statements connected to voting….
