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Published October 17 2012

Former ND GOP chairman challenges law banning campaigning on Election Day

BISMARCK – If Gary Emineth gets his way, Election Day in North Dakota could get a whole lot noisier.

In a lawsuit filed Tuesday in federal court in Fargo, the former state Republican chairman seeks to overturn the state’s longstanding ban on campaign ads, candidate signs and most other forms of political speech on the day that voters hit the polls.

Emineth says the law runs afoul of his right to free speech.

“I think its time has come and gone,” Emineth said.

Supporters of the law, including state Democrats, say it’s a North Dakota tradition that protects voters from last-minute harassment.

“People in North Dakota like their privacy on Election Day,” said Rania Beatrice, communications director for the state’s Democratic Party. “They don’t like people hounding and hassling them.”

But opponents say the measure is overly broad and doesn’t jibe with the First Amendment.

“It criminalizes constitutionally protected speech,” said Allen Dickerson, legal director of the Virginia-based Center for Competitive Politics.

The group, which helped Emineth file the lawsuit, opposes most restriction on political speech and campaign finance.

Dickerson said narrow restrictions on speech in or near polling places usually stand up to scrutiny, but that North Dakota’s law goes much further, banning wide swathes of speech that should be protected.

The law prohibits people from “asking, soliciting, or in any manner trying to induce or persuade, any voter on an election day” to vote for or against candidates or ballot measures.

The law has survived at least two attempts at reform. In 1981 and 1999, bills to narrow the law passed the state Senate but failed in the House.

Emineth said the law no longer makes sense given the number of people who vote early, when signs and advertisements are still in full swing.

“How is that different than Election Day?” he said. “It is Election Day for a whole month before we get to the election.”

He said he’s wanted to challenge the law for a few years, but waited until he was no longer chairman of the state’s Republican Party because he didn’t want to make the issue partisan.

The lawsuit seeks an injunction that would suspend the law in time for November’s election.

North Dakota Secretary of State Al Jaeger, one of the defendants in the lawsuit, said he thinks most people like the lull on Election Day.

“It is a day of quiet, and people are just going to the polls,” he said.

Jaeger, a Republican, said he personally likes the law, and hopes the state can implement some restrictions on behavior at polling sites if the courts strike it down.

“I think that voters should be able to go to a polling site and not have people in their face,” he said.

Jack McDonald, a Bismarck-based media law and First Amendment attorney, was blunt in his assessment of the law’s chances in court.

“They’re going to win, because it is unconstitutional,” he said.

He said similar laws have been struck down by the U.S. Supreme Court.

Courts have generally held states can only restrict speech inside polling places, he said.

McDonald, who often represents North Dakota broadcasters and newspapers, said he’s pushed in the past to get the law changed because it curtails the ads that can run on Election Day.

“The answer that the legislators have given us is, ‘Yeah, we know it’s unconstitutional, but we like it,’ ” he said.

He said most broadcasters have respected the law, even though he regards it as flimsy. When they call him to seek counsel on running ads on Election Day, he tells them it’s against North Dakota law, but that he thinks the law is unconstitutional and unenforceable.

Every so often, someone will violate the law, “and nobody does anything about it,” he said.

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Readers can reach Forum reporter Marino Eccher at (701) 241-5502