N.D. law banning campaigning on Election Day ruled unconstitutional

Lilly Chapa | Prior Restraints | News | November 1, 2012

A federal judge Wednesday banned the enforcement of a century-old statute that prevents North Dakota citizens from campaigning on Election Day, calling the law “archaic” and “unconstitutional.”

North Dakota citizen Gary Emineth, who was represented by the Center for Competitive Politics, challenged the constitutionality of the law, which criminalizes all speech aimed at persuading a voter how to cast his or her ballot on Election Day. Emineth said in the lawsuit that he wants to be able to hand out flyers, keep his yard signs up and speak in support of candidates on Election Day.

North Dakota District Judge Daniel Hovland wrote in his order that law enforcement officials cannot prosecute anybody who violates the ban because it “flies in the face of general constitutional principles the Supreme Court has articulated in the context of both the free speech and free press clauses for decades.”

“The judge was very fair and recognized the gravity of the issue and acted quickly,” Center for Competitive Politics attorney Allen Dickerson said in an interview. “I think you can see that everyone agrees with the fairness of the decision. The State isn’t even appealing.”

Dickerson said that he thinks North Dakota is the only state that has such a broad electioneering law, which was enacted in 1911. Although it was not consistently enforced, it was a matter of North Dakota culture, Dickerson said.

“People would go around in the dead of night and take down yard signs the night before elections,” Dickerson said. “If you didn’t, there’d be a flood of complaints to the Attorney General’s office that people are violating the law.”

Hovland wrote in his order that since the statute imposes a prior restraint on protected speech, “the law is subject to strict scrutiny – a test it appears to fail because it is not narrowly tailored to a compelling government interest.”

The judge noted that while laws prohibiting campaigning within a certain radius of a voting area, which many states have, are legal, North Dakota’s ban is too broad. Hovland also acknowledged that tens of thousands of individuals participate in early or absentee voting, where they are “bombarded nearly every waking moment by vitriolic political ads designed to ‘induce or persuade’ them to vote or refrain from voting for a particular candidate or political party.”

Dickerson said he thinks it took so long for someone to challenge the “clearly unconstitutional” law because people don’t think about their constitutional rights as something they can go out and defend.

“I think that’s one of the biggest dangers of unconstitutional laws,” Dickerson said. “When they are enforced it is done so selectively, so people don’t think about it.”