MARLIN v. D.C. BOARD OF ELECTIONS AND ETHICS No. 99-7206.
236 F.3d 716 (2001)
David H. MARLIN, Appellant, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Appellee.
United States Court of Appeals, District of Columbia Circuit.
Decided January 19, 2001.
Robert K. Kelner argued the cause for the appellant. Mark H. Lynch was on brief. Michael A. Dawson entered an appearance.
Rudolph McGann Jr. argued the cause for the appellee. Kenneth J. McGhie was on brief.
Before: HENDERSON, RANDOLPH and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
David H. Marlin appeals the district court's grant of summary judgment to the District of Columbia Board of Elections and Ethics (Board). Marlin brought this action alleging the Board's enforcement of polling place regulations to prohibit him from wearing a campaign sticker into his polling place on election day violates the First Amendment to the United States Constitution. We agree with the district court that the Board's enforcement reflects reasonable, viewpoint-neutral regulation of polling place speech and therefore does not violate the First Amendment.
The material facts are not in dispute. On September 15, 1998 Marlin, a resident and registered voter of the District of Columbia (District), went to his polling place to vote in a primary election while wearing a campaign sticker in support of mayoral candidate Anthony Williams. When Marlin attempted to turn in his completed ballot, an election worker informed him he "could not cast his ballot while wearing the sticker." Affidavit of David H. Marlin ¶ 10. After a second election worker accepted Marlin's ballot, the first worker told Marlin he would not be permitted to vote in the general election if he was wearing "any sticker, button, emblem, or clothing that showed support for a candidate." Id. After the primary Marlin and his counsel contacted the Board, which told Marlin's counsel that the District's election regulations, promulgated by the Board,
Meanwhile, on October 23, 1998 Marlin filed this action in the district court challenging the Board's enforcement of the regulations. In a memorandum opinion and order filed September 8, 1999 the district court granted summary judgment in favor of the Board. Marlin appealed.
Marlin challenges two District election regulations. The first provides:
3 D.C.M.R. § 708.4. The second defines "political activity" to "include without limitation, any activity intended to persuade a person to vote for or against any candidate or measure or to desist from voting." 3 D.C.M.R. § 708.8. Marlin contends the Board's enforcement of these regulations to prevent him from wearing a political sticker when voting inside the polling place is an unjustified restriction of his right to free expression under the First Amendment.
The United States Supreme Court has
Cornelius v. NAACP Legal Defense & Educational Fund,
The forum here, the interior of a polling place, is neither a traditional public forum nor a government-designated one. It is not available for general public discourse of any sort. The only expressive activity involved is each voter's communication of his own elective choice and this has long been carried out privately — by secret ballot in a restricted space. See Burson v. Freeman,
Having concluded that polling places are non-public fora, we further conclude that the Board's enforcement of the challenged election regulations constitutes reasonable viewpoint-neutral regulation of expression within polling places. In Burson v. Freeman,
Marlin does not dispute that the regulations, which apply to all political activity, are viewpoint neutral. Nor does he question the validity of the interests identified by the Board, namely protecting "the orderly conduct of elections" by "creating a neutral zone within the polling place, preventing altercations over hot-button issues, intimidation of voters, eleventh hour smear campaigns and the like," Brief of Appellee at 20-21 (emphasis original) — which interests parallel those endorsed in Burson, namely protecting "the right of [Tennessee's] citizens to vote freely for the candidates of their choice" and safeguarding "the right to vote in an election conducted with integrity and reliability," 504 U.S. at 198-99, 112 S.Ct. 1846. Marlin contends only that the broad ban is unnecessary to prevent the evils the Board has identified. To pass constitutional muster, however, regulation of speech in a nonpublic forum need "not be the most reasonable or the only reasonable limitation" and, "[i]n contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated." 473 U.S. at 808, 105 S.Ct. 3439 (citing Perry Educ. Assn., supra; Lehman v. City of Shaker Heights,
For the foregoing reasons, the judgment of the district court is
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