[00:00:00] Speaker 04:
25-8000 Frank versus Gray.

[00:00:04] Speaker 04:
Please, Council, make your appearance and proceed.

[00:00:10] Speaker 02:
Thank you.

[00:00:10] Speaker 02:
Thank you, Your Honor.

[00:00:11] Speaker 02:
May it please the Court.

[00:00:11] Speaker 02:
My name is Stephen Klein.

[00:00:13] Speaker 02:
On behalf of John C. Frank, I will endeavor to reserve two minutes for rebuttal.

[00:00:19] Speaker 02:
Absentee polling place buffer zones censor the most important form of free speech at the most important time in a most important place.

[00:00:28] Speaker 02:
They censor electioneering during the height of election season around the very government offices that are among those subject to the forthcoming election, particularly at the Laramie County government complex.

[00:00:41] Speaker 02:
This court should reverse the court below and find that Wyoming statute 2226.113 is unconstitutional facially or at the very least, as applied to some of Mr. Frank's or all of them, his activities around the Laramie County government complex.

[00:00:56] Speaker 02:
When this court remanded two years ago to consider this issue, it stated in its opinion that the real question here is a matter of tailoring.

[00:01:06] Speaker 02:
What does the absentee polling place?

[00:01:07] Speaker 02:
What do buffer zones outside of election day do to Burson versus Freeman?

[00:01:12] Speaker 02:
And we submit that it implicates traditional strict scrutiny rather than the modified burden of proof applied in that case.

[00:01:20] Speaker 02:
And we say this for several reasons, the first being that there's fundamentally not a clash of voting rights and free speech here.

[00:01:27] Speaker 02:
Rather, it is now the expansion of voting wholly optional under the statute, wholly optional constitutionally, I would submit.

[00:01:36] Speaker 02:
that is going up against traditional free speech and traditional public forum.

[00:01:40] Speaker 04:
Why does that matter?

[00:01:43] Speaker 04:
Setting of absentee voting is an optional matter.

[00:01:49] Speaker 04:
How does that implicate the integrity of the vote?

[00:01:53] Speaker 04:
I mean, as a voter, I don't really care whether I'm voting absentee or not.

[00:01:58] Speaker 04:
And it would seem that Burson's concerns about the integrity of the vote, protecting it from being corrupted, protecting it from harassment, those don't change just by the fact that it is optional for Wyoming to set up this separate process.

[00:02:11] Speaker 04:
Why does that matter?

[00:02:12] Speaker 02:
Your Honor, I think it matters because fundamentally it comes down to redressability, right?

[00:02:17] Speaker 02:
And first of all, I do want to say, we submit that these are compelling governmental interests.

[00:02:22] Speaker 02:
Again, what the answer is, is tailoring.

[00:02:24] Speaker 02:
Do you get to censor free speech around the absentee polling place for 28 days in the name of protecting that in the same way that you do on election day, right?

[00:02:34] Speaker 04:
Well, but the point I'm getting at is it seems to me that the same rationale the person applied

[00:02:39] Speaker 04:
for going to a modified tailoring program apply here too?

[00:02:43] Speaker 04:
If you were focused on the act of voting, and specifically when that person is walking to the polling place to vote absentee, why does it matter that they're absentee as opposed to going on election day when the same concerns about corruption, integrity, harassment, all of those things that Burson was concerned about when it said let's have a modified tailoring program seem to be entirely applicable here.

[00:03:08] Speaker 02:
Two points, Your Honor.

[00:03:10] Speaker 02:
First is going to be redressability.

[00:03:12] Speaker 02:
And this is very important, Burson, on the macro and the micro level.

[00:03:15] Speaker 02:
Burson said more than once to say, well, if things go wrong on election day, you can't redo the election.

[00:03:21] Speaker 02:
Here, it seems they're redoing the election a whole lot of days, right?

[00:03:24] Speaker 02:
And at the micro level, let's get down to a voter who say, in the worst case scenario, is actually intimidated.

[00:03:30] Speaker 02:
Right?

[00:03:31] Speaker 02:
What happens?

[00:03:31] Speaker 02:
There's redressability.

[00:03:32] Speaker 02:
They can vote the next day.

[00:03:33] Speaker 02:
They can vote by mail.

[00:03:35] Speaker 02:
There has to be this, you know, we seem to have an eggshell voter concern here, as opposed to the civic courage that we apply.

[00:03:42] Speaker 04:
You mean that it doesn't matter that I'm intimidated to go to the voting place?

[00:03:47] Speaker 04:
It doesn't matter that I say, oh, well, I need to vote absentee by mail because there are people out there who are harassing me?

[00:03:54] Speaker 04:
You think Burson's not concerned about that?

[00:03:56] Speaker 02:
Your Honor, I think Burson is absolutely concerned.

[00:03:58] Speaker 02:
The question is, do you get to just censor electioneering around this government facility in the name, without any kind of tailoring whatsoever, right?

[00:04:07] Speaker 02:
And again, now we also have this big time frame within which, if all these whole parade of horribles occurs,

[00:04:13] Speaker 02:
there again is redressability.

[00:04:15] Speaker 02:
As far as if Mr. Frank somehow turns into an agent who's going to do that, right, he can be arrested.

[00:04:21] Speaker 02:
He can be, again, through less restrictive means.

[00:04:23] Speaker 02:
If someone's intimidating a voter, by all means, prosecute him or her for intimidating a voter.

[00:04:28] Speaker 02:
But we start to go into this illusion that even in this extended voting period,

[00:04:34] Speaker 02:
that, oh, well, this is too, we can't see it.

[00:04:37] Speaker 02:
We can't see the intimidation.

[00:04:38] Speaker 02:
That's why we need to censor all election speech during election season around this facility.

[00:04:43] Speaker 02:
And I would submit this, again, the person was a prophylactic opinion, absolutely, but to extend it so far and start to eclipse a traditional public forum for the most important form of free speech, that is what we submit.

[00:04:58] Speaker 03:
So you would agree if this were only an election day restriction that

[00:05:03] Speaker 03:
that your claim would fail?

[00:05:05] Speaker 03:
Oh, absolutely.

[00:05:08] Speaker 03:
So your case isn't about the geographical reach of the restriction.

[00:05:14] Speaker 03:
It's about the temporal scope of it, the 28 days or, you know, depending on whose calculations you're using, the multiple day restrictions as opposed to the geographic scope.

[00:05:27] Speaker 02:
As to the holistic analysis, I think the temporal scope is our biggest hook, Your Honor.

[00:05:32] Speaker 02:
But geography isn't just about size.

[00:05:34] Speaker 02:
I think geography has to consider what's going on in the geography.

[00:05:37] Speaker 02:
And as we pointed out in the briefing, you speak of, and this is where Mansky comes in and these other election day polling places, they give a certain sanctity to the polling place, and perhaps that's rightfully true.

[00:05:49] Speaker 02:
But now you put it in the room with the snack bar.

[00:05:51] Speaker 02:
The line goes between the snack bar and the ATM.

[00:05:55] Speaker 03:
So what?

[00:05:56] Speaker 03:
People are intimidated by me getting a hot dog while they're voting.

[00:06:00] Speaker 03:
Sure.

[00:06:01] Speaker 03:
They're worried about me getting up in their face with a vote for Carson sign.

[00:06:07] Speaker 02:
Well, again, getting up in your face, Your Honor.

[00:06:09] Speaker 02:
These are, again, these things.

[00:06:11] Speaker 03:
They don't want me standing 10 feet away from them.

[00:06:14] Speaker 03:
with a vote for Carson's sign.

[00:06:16] Speaker 02:
Well, Your Honor, again, but here's the other thing to look at with the temporal scope, Your Honor, is holding a Carson sign, you know, on election day, or right during the time... Okay, but that's different.

[00:06:27] Speaker 03:
You said that you're not giving it, that geography can mean many things, and that this is a busy building,

[00:06:35] Speaker 03:
and that there's not the sanctity of the vote.

[00:06:38] Speaker 03:
And so because the building has these characteristics, the geography matters.

[00:06:42] Speaker 03:
And now we're going back to the temporal scope.

[00:06:44] Speaker 03:
I just want to narrow it down.

[00:06:45] Speaker 03:
I mean, if we're just talking about the days, let's talk about the days.

[00:06:49] Speaker 02:
Well, Your Honor, respectfully, on the prior Frank decision, I'm in a holistic analysis.

[00:06:53] Speaker 02:
I've got variables, but I've got to put them all together, right?

[00:06:56] Speaker 02:
And they're going to interplay, right?

[00:07:02] Speaker 02:
Circle back when I when I see you know This season the temporal scope right in that geography in that traditional public form It isn't that time for choosing that we spoke that we I think is the quote in Manski.

[00:07:15] Speaker 02:
It's time for campaigning This is it.

[00:07:18] Speaker 01:
Well, right.

[00:07:19] Speaker 01:
Where does that end?

[00:07:21] Speaker 01:
After they get the ballot and head to the ballot box.

[00:07:24] Speaker 01:
Can you still be in their air?

[00:07:25] Speaker 01:
I

[00:07:25] Speaker 02:
No, absolutely not, Your Honor.

[00:07:27] Speaker 02:
We're talking about the traditional public fora outside, the sidewalks, the streets.

[00:07:32] Speaker 03:
Manskey is very clear that it's a non-public fora in the polling place itself, and that's not where Mr. Frank... Does it matter here that... I mean, just looking at your picture, there is a lot of space in close proximity to this building where people park, where people walk, where they approach the building that your client could election here.

[00:07:55] Speaker 02:
Not for one-on-one communication, your honor.

[00:07:58] Speaker 02:
Say it again?

[00:07:59] Speaker 02:
Not for one-on-one communication, not for distribution of literature or one-on-one communication.

[00:08:02] Speaker 03:
Sure, well, people don't just appear in the building.

[00:08:05] Speaker 02:
They have to park.

[00:08:07] Speaker 02:
They have to walk up to the building.

[00:08:10] Speaker 02:
I'm not sure I understand your point.

[00:08:11] Speaker 03:
I mean, again, Mr. Frank, intercepting... Well, my point is there's a circle drawn around it, but there is a lot of opportunity for your client to approach people in close proximity to the building when they get there and park and want to go in and vote.

[00:08:24] Speaker 02:
I disagree for purposes of, I think, for McCullen versus Coakley, which is a 35-foot zone, which significantly impinged upon one-on-one communication.

[00:08:35] Speaker 02:
I would say that would probably be our best case.

[00:08:37] Speaker 02:
And that was an intermediate scrutiny case.

[00:08:39] Speaker 02:
And here we have content-based in traditional public fora.

[00:08:43] Speaker 02:
And I respectfully, and this is where Meyer v. Grant comes in, that was affirmed, I believe, by two judges on this panel who were discussing Meyer versus Grant, saying, look, when you start infringing

[00:08:54] Speaker 02:
on these tried and true essentials of politicking, you have a problem.

[00:09:00] Speaker 02:
And this is where I think this holistic analysis around the very offices at issue, you know, again, and we do have it in the record that most of these absentee bowling places are courthouses, right?

[00:09:11] Speaker 02:
It's even in the statute for creation of absentee bowling places uses the word courthouse.

[00:09:16] Speaker 02:
And, you know, US v. Grace, it's very clear these are traditional public fora.

[00:09:21] Speaker 02:
These are the traditional thing.

[00:09:22] Speaker 02:
You know, this is what's being held open for people to engage in what Mr. Frank wants to engage in.

[00:09:27] Speaker 02:
And I don't think, respectfully, he needs to justify that.

[00:09:31] Speaker 04:
Well, there's a buff.

[00:09:32] Speaker 04:
Well, the law is that he does need to justify this.

[00:09:35] Speaker 04:
Historically, there have been buffer zones.

[00:09:37] Speaker 04:
I mean, so the law has recognized that there are buffer zones and that they are legitimate.

[00:09:41] Speaker 04:
So yes, we're here talking about now whether this specific one

[00:09:45] Speaker 04:
is justifiable, and McCullen is quite something that puzzles me a little bit, and I want you to help me with it.

[00:09:52] Speaker 04:
It seems to me that your brief talks a lot about emphasizes this is a government building, there are people going in there for government business.

[00:10:00] Speaker 04:
It strikes me that in McCullen, there was a specific audience that was going for whatever reason for abortion services, and there was a specific

[00:10:12] Speaker 04:
directed activity of speech addressing that activity.

[00:10:17] Speaker 04:
That's not what you have here.

[00:10:19] Speaker 04:
In other words, McCullen made something of the fact that the efficacy of this street counseling that was being done

[00:10:27] Speaker 04:
Well, you have to have some distance in order to be able to do it.

[00:10:31] Speaker 04:
Here, you've got a bunch of people going in for wedding licenses.

[00:10:35] Speaker 04:
You've got a bunch of people going in for all of the manifold government services.

[00:10:40] Speaker 04:
Where is the same efficacy nexus that you had in McCullough?

[00:10:47] Speaker 02:
Your Honor, I think it's inherent in the fact that these are facilities and people interacting with government are going to be the people that Mr. Frank wants to talk to about the upcoming election.

[00:10:56] Speaker 04:
No, it isn't inherent.

[00:10:57] Speaker 04:
It's not inherent to me.

[00:10:58] Speaker 04:
It's not obvious to me that if I'm going, I don't know the full scope of what they do in that government complex, but if I'm going to get a wedding license, why do I care about Mr. Frank?

[00:11:08] Speaker 04:
I mean, why am I more susceptible and open to hearing what Mr. Frank does than anybody else?

[00:11:13] Speaker 02:
Your Honor, I mean, hypothetically, how was your service today?

[00:11:17] Speaker 02:
The county clerk's up for election, how'd she do issuing that marriage license, right?

[00:11:21] Speaker 02:
These are important questions that should be asked of the people that are participating or interacting with government.

[00:11:26] Speaker 02:
I think specifically county commission meetings, of which we know two, one is going to occur during absentee voting, one's going to occur leading up to the general election.

[00:11:35] Speaker 02:
primary and general election right these are people that you're engaging you have the set the audience here of people who actually participate not just engaging in government services but who are actually you know monitoring government going to court right you know judges subject to election district at circuit courts so i i respectfully i think there's there's this is a very important audience right and and so everyone the offices that are in that building

[00:12:03] Speaker 02:
consistent elected officials over people who are not worried who are in control of the services that these people are receiving yes your honor county commission county clerk the uh... district attorney public defender we have a list of the stipulated list of the record you know i i i speak up i would like to reserve time for a bottle if that's possible unless there are any further questions

[00:12:46] Speaker 00:
May it please the court, counsel.

[00:12:48] Speaker 00:
My name is Jim Peters on behalf of the Wyoming Secretary of State and the Laramie County District Attorney in this matter.

[00:12:55] Speaker 00:
As the court is aware, this case involves the state's ability to regulate electioneering near polling places when in-person voting is occurring.

[00:13:07] Speaker 00:
And it involves a delicate balance of First Amendment rights, the right to political discourse, and the right to vote freely from undue influence, intimidation, and harassment.

[00:13:18] Speaker 00:
And it's with that backdrop that the U.S.

[00:13:21] Speaker 00:
Supreme Court established the framework by which courts review prohibitions on electioneering near polling place, and that's in Burson v. Freeman.

[00:13:30] Speaker 00:
and that this court had the occasion to apply in what I'll refer to as as frank one to the election day buffer zones established by Miami Statute 22 26 113 and on remand this court specifically directed the district court to engage in a holistic inquiry under Burson and analyze the buffer zones around absentee polling places serious are you saying then that this argument that we should apply strict

[00:14:00] Speaker 04:
uh... traditional strict scrutiny is off the table because a lot of the case because of frank one donna believe it is i believe in did you argue that your brief

[00:14:10] Speaker 00:
Your Honor, in our brief, we didn't specifically argue that, but we did point to that this court directed the district court to apply the Burson framework.

[00:14:21] Speaker 00:
And even if that's not the case, Burson still is applicable in this case, because the same considerations are at play for in-person voting on election day and in-person voting in an absentee day.

[00:14:35] Speaker 03:
Don't you think it's even under a relaxed standard that it's excessive

[00:14:39] Speaker 03:
to make it where people can't even drive in front of the county building and on basically on three sides of it if they don't have a compliant vehicle as far as member stickers go or signage.

[00:14:55] Speaker 00:
Your Honor, I don't believe it is.

[00:14:56] Speaker 00:
The statute sets forth for purpose of absentee voting a 100 foot prohibition from the entrance to a polling place.

[00:15:03] Speaker 00:
In the Laramie County Governmental Complex, which has been the focus of this case, that zone does extend to portions of the adjacent streets, the sidewalks and the adjacent streets.

[00:15:15] Speaker 00:
But that's certainly not the case in all of the various facilities in which absentee zones may be applicable to.

[00:15:23] Speaker 03:
What if I'm otherwise a political activist and I drive in front of that building every day on my way to work and Mr. Frank wants me to put some bumper stickers on my car and I just tell him, you know what?

[00:15:39] Speaker 03:
I am not going to drive out of my way every day just to have these bumper stickers.

[00:15:44] Speaker 03:
Isn't that the kind of chilling effect we're talking about here?

[00:15:51] Speaker 00:
Your Honor, I think a couple of responses to that.

[00:15:55] Speaker 00:
First, has this court recognized Wyoming Statute 22, 26, 112 only criminalizes the conduct to the extent that it is engaged in knowingly and willfully?

[00:16:05] Speaker 03:
Well, I'm knowingly and willfully doing it every day.

[00:16:07] Speaker 03:
It's right in my route to work, and the reason I don't want to put them on there is because I don't want to run afoul of the law.

[00:16:17] Speaker 00:
Your honor, I think that's exactly the grappling or the balancing that the state has to undertake in determining

[00:16:24] Speaker 00:
what sort of buffer zone is appropriate in this context?

[00:16:28] Speaker 00:
Could the state have carved out possibly all public streets and only permitted conduct in the immediate vicinity or the adjacent sidewalk to the polling place?

[00:16:39] Speaker 00:
Perhaps.

[00:16:41] Speaker 00:
But that might have been maybe more appropriate under at least restrictive means or traditional strict scrutiny analysis.

[00:16:47] Speaker 00:
And that's not what the Supreme Court has applied for purposes of the tailoring aspect in person.

[00:16:54] Speaker 00:
The test is whether the restriction is reasonable and not a significant impingement upon free speech.

[00:17:01] Speaker 00:
And this court, in analyzing the Election Day buffer zone, said that, well, there is some guidance on what it means to significantly impinge on free speech.

[00:17:12] Speaker 00:
And the example is absolute prohibitions that are completely disconnected from the state's protection or the state's interest in protecting voters who are attempting to cast their ballots.

[00:17:24] Speaker 00:
And looking at the regulation here, holistically, the geographic scope, the conduct prohibited, and the temporal scope, which I want to focus on a little bit, the state has tailored, has limited the conduct prohibited in the area to only win

[00:17:42] Speaker 00:
in-person voting is occurring to that narrow space, 100 feet, that was the same distance that was upheld in person, the Tennessee statute, and only to conduct electioneering conduct outside there.

[00:17:59] Speaker 00:
Looking at the temporal scope,

[00:18:02] Speaker 00:
The plaintiffs in this case take issue with the duration.

[00:18:06] Speaker 00:
And we flesh this out in our briefing, but I think it is worth a little bit of rehashing.

[00:18:10] Speaker 00:
The absentee polling period begins 28 days in advance of a primary or general election.

[00:18:17] Speaker 00:
But importantly, the statute isn't in effect for that entire time.

[00:18:23] Speaker 00:
The absentee polling restriction is only in place, or the buffer zone, if you will, around absentee polling places is only in effect when absentee voting is occurring.

[00:18:33] Speaker 03:
Well, but it only chills speech during the time that somebody would want to speak.

[00:18:36] Speaker 03:
Nobody wants to electioneer in front of the county building when there's nobody there.

[00:18:42] Speaker 00:
Your Honor, perhaps there may be a different audience when, you know, after 5 p.m.

[00:18:47] Speaker 00:
on a day than during the heart of the day.

[00:18:51] Speaker 00:
But I think, again, analyzing that with the purpose of these restrictions that was recognized by the Supreme Court in person and again by this court in Frank I, we're looking at balancing those rights

[00:19:04] Speaker 00:
to engage in political discourse with the state's interest in protecting voters to be free from intimidation and harassment.

[00:19:14] Speaker 04:
Isn't it right, thinking about sort of geographic scope, and it implicates temporal too, isn't it the case that the voting takes place in the atrium between the two buildings, right?

[00:19:28] Speaker 00:
Your Honor, you are correct.

[00:19:29] Speaker 04:
Well, and there's an entrance into the atrium, right?

[00:19:33] Speaker 00:
Your Honor, yes there is an entry.

[00:19:34] Speaker 04:
Well then why couldn't this have just restricted electioneering as it relates to going through that entrance as opposed to this entire government building that has to have a buffer zone of 100 feet all around it?

[00:19:47] Speaker 00:
So importantly, the buffer zone isn't in place for the entire building and around the entire building.

[00:19:53] Speaker 00:
It extends 100 feet from the entrance to the public building.

[00:19:59] Speaker 04:
Well, every entrance to the public building, 100 feet from that, right?

[00:20:06] Speaker 00:
Your Honor, you are correct, yes.

[00:20:07] Speaker 04:
And I guess my point is, if

[00:20:11] Speaker 04:
people are going to vote in the atrium and the atrium has its own entrance, why was it necessary to have a hundred foot buffer zone around every entrance?

[00:20:25] Speaker 04:
That's the point.

[00:20:26] Speaker 00:
Your Honor, again the statute

[00:20:30] Speaker 00:
doesn't envision the exact location of where the absentee polling places are going to occur.

[00:20:35] Speaker 00:
There may be a facility that only has one entrance, there may be a facility that has multiple entrances.

[00:20:40] Speaker 00:
For purposes of the as applied challenge to the Laramie County Governmental Complex, those zones are in place around multiple entrances.

[00:20:48] Speaker 00:
And your honor, I hate to go outside of the record, but I think there's a reasonable inference that

[00:20:56] Speaker 00:
Interested persons or electors during absentee days are not only accessing the polling place through the atrium that they would be accessing it or potentially would be accessing it from other entrances to the Laramie County Governmental Complex.

[00:21:10] Speaker 04:
I take it from your qualification that there isn't anything in the record that speaks to exactly the point that you just made?

[00:21:20] Speaker 00:
Your Honor, I don't believe

[00:21:22] Speaker 00:
there is anything in the record specific to the entrances by which voters themselves are accessing the atrium.

[00:21:31] Speaker 03:
Okay, so I'm sure I understand.

[00:21:32] Speaker 03:
Your point is there's nothing in the record that shows what door people come in.

[00:21:38] Speaker 00:
Your Honor, you're correct.

[00:21:40] Speaker 00:
I don't believe that there is.

[00:21:43] Speaker 00:
Your Honor, transitioning to the geographic scope, again, this is the exact same distance.

[00:21:49] Speaker 03:
Let's stay on the temporal scope for a minute.

[00:21:53] Speaker 03:
You agree that the burden on the person wanting to have speech increases when you move it from election day to the entire early and absentee period.

[00:22:06] Speaker 00:
Your honor, I would agree that there's an increased burden on an individual desiring to engage in electionary.

[00:22:11] Speaker 03:
Okay.

[00:22:12] Speaker 03:
So at least as part of a holistic approach, that is a mark in favor of the plaintiff in this case.

[00:22:22] Speaker 00:
Your Honor, I think that it is.

[00:22:24] Speaker 00:
I think the district court looked at not only the temporal scope, looked at the geographic scope, the conduct prohibited.

[00:22:33] Speaker 00:
Additionally, the history of regulating or having buffer zones around absentee polling places and also consensus among other states that do have in-person absentee voting or early voting and weighed all of those factors

[00:22:51] Speaker 00:
in its decision and assessing the reasonableness and determining whether the restriction is narrowly tailored based on that modified burden applied by the birth support.

[00:23:01] Speaker 03:
So do you look at this on a day more than, instead of looking at it period wide, are you looking at this on a day by day basis and saying that, okay, February 1 is a voting day?

[00:23:13] Speaker 03:
And so we balance the restriction versus the voters' rights on that day in the protection of the vote.

[00:23:21] Speaker 03:
And then February 2, we do the same thing anew.

[00:23:24] Speaker 03:
Is that how you look at it?

[00:23:27] Speaker 00:
Your Honor, no.

[00:23:29] Speaker 00:
I think you need to look at the

[00:23:32] Speaker 00:
the effect that the regulation has on speech.

[00:23:35] Speaker 00:
And so with that in mind, I don't think you're looking at an individual day-by-day basis.

[00:23:41] Speaker 03:
OK, so you're not opposed to looking at it on a combined basis, saying that we're looking at what's the effect of restricting this speech for 56 days, for example.

[00:23:51] Speaker 00:
Your Honor, I think you would look at the entirety of the duration in which speech is restricted in engaging in a holistic analysis of the entire scope of the regulation.

[00:24:04] Speaker 00:
And related to temporal scope, again, while absentee voting period begins 28 days prior to

[00:24:15] Speaker 00:
the general or primary election.

[00:24:18] Speaker 00:
Again, that buffer zone is only in place when voting is available at the complex.

[00:24:24] Speaker 00:
This is in the record or in the appendix at pages 81 and 82.

[00:24:32] Speaker 00:
It's only in effect, generally, Monday through Friday, when the facility is open between 8 and 5.

[00:24:38] Speaker 04:
I really need help understanding why that is a persuasive point for you.

[00:24:43] Speaker 04:
Because, I mean, the reality is you're saying, well, you know, it's only in effect when people really want to talk.

[00:24:49] Speaker 04:
I mean, or when people would get any efficacy out of talking.

[00:24:52] Speaker 04:
I mean, what difference does it make?

[00:24:53] Speaker 04:
If I go out there and shout to the moon when there's nobody at the government building,

[00:24:58] Speaker 04:
or I could go out there on the weekend and start shouting and there's nobody there, how am I helped?

[00:25:06] Speaker 04:
I mean, how is my burden decreased by that availability?

[00:25:10] Speaker 00:
Your Honor, I think this ties back to the narrow tailoring requirement and why the Supreme Court in person created the modified burden.

[00:25:20] Speaker 00:
It's that when there's an activity that physically interferes with electors attempting to cast their ballots,

[00:25:26] Speaker 00:
If there was no, only when the facility is open, eight to five restriction, and perhaps envision a scenario where it was the entirety of the absentee polling period, this buffer zone was in place, that wouldn't, or perhaps that might not be sufficiently tailored under the person analysis, because at those later times, there are no electors that are attempting to cast ballots.

[00:25:50] Speaker 00:
So again, I think that does weigh in favor, while there's certainly some argument about

[00:25:55] Speaker 00:
you know, additional temporal restriction and whether that weighs in favor of the plaintiffs, I think for purposes of that aspect of the temporal scope, I think that restriction and that narrowing weighs in favor of the state in upholding the absentee poll.

[00:26:10] Speaker 04:
Okay, I think that's somewhat helpful.

[00:26:12] Speaker 04:
So your point would be that Wyoming is not sort of willy-nilly trying to just suppress speech and that really it's only doing what it thinks it needs to do to protect the integrity of the vote.

[00:26:22] Speaker 00:
Absolutely, Your Honor.

[00:26:23] Speaker 00:
And I think that's even further demonstrated by the changes to the scope of the absentee buffer zone that occurred.

[00:26:32] Speaker 00:
In 2006, when in-person absentee voting was established or that option was established, the buffer zone was the same as on Election Day at 300 feet.

[00:26:42] Speaker 00:
But then the legislature grappled with that distance and ultimately determined that it was appropriate on absentee days to reduce that restriction to 100 feet when absentee voting is occurring, in addition to carve out a narrow exception for certain types of speech, namely bumper stickers of a certain size, of a certain number per candidate that are attempting to

[00:27:11] Speaker 00:
access the facility for purposes of voting.

[00:27:14] Speaker 01:
What was the reason for the 100 foot?

[00:27:16] Speaker 01:
Is it that it was less congested down there?

[00:27:19] Speaker 01:
The vote is diluted amongst the absentee in-person voters over that period so you don't have a line for instance.

[00:27:28] Speaker 00:
Your Honor, there isn't any express legislative history on that, but I think sort of with the publicly available information related to that bill, the introduced bill proposed to change the entire restrictions for all

[00:27:45] Speaker 00:
voting on election day and absentee days to 100 feet.

[00:27:49] Speaker 00:
That was subsequently changed through the legislative process.

[00:27:52] Speaker 00:
But I think you're correct.

[00:27:54] Speaker 00:
I think it is reasonable to infer that there are fewer electors congregating at the facility at the Laramie County Governmental Complex during absentee polling period because it's spread out amongst a number of days rather than one day where that is available.

[00:28:12] Speaker 00:
Your honor, I see that I'm out of time.

[00:28:15] Speaker 00:
Would respectfully request that this court affirm the district court decision.

[00:28:18] Speaker 00:
Thank you.

[00:28:19] Speaker 04:
Thank you, counsel.

[00:28:28] Speaker 02:
Appreciate my opposing counsel's understanding of the record.

[00:28:32] Speaker 02:
We did so stipulate, pages 80 to 82 of the record, that the polling place, the atrium, is accessible through the entrances on 20th and 19th Street.

[00:28:43] Speaker 02:
There is nothing really in the record about whether people do that or not, so I just want to be clear about that.

[00:28:47] Speaker 02:
This gets us to this as applied relief at the bare minimum give mr. Frank the ability to hand out literature on 20th Street That's all you have there are the warnings taped to the sidewalk that say don't electioneer here That's all you have whereas around the corner on Cary Avenue the county clerk has put up some really big vote here signs And moreover as judge Carson that's not electioneering that's

[00:29:12] Speaker 03:
That's not giving a political message, is it?

[00:29:16] Speaker 02:
No, Your Honor.

[00:29:16] Speaker 02:
It goes to Judge Holmes' point about that this is the entrance to the atrium.

[00:29:21] Speaker 02:
This is the entrance people are probably actually using.

[00:29:23] Speaker 02:
Fair enough.

[00:29:24] Speaker 02:
And then Mr. Frank should be entitled, as anybody should, to have more than two bumper stickers for the same candidate on his car and be able to drive downtown.

[00:29:32] Speaker 02:
And I'll say if anybody after six years of litigation would commit a knowing and willful violation, it's probably my client.

[00:29:38] Speaker 02:
So I would ask for relief in that regard as well.

[00:29:41] Speaker 01:
So what's the limit?

[00:29:42] Speaker 01:
What if you had a four foot by eight foot sign on top of your car?

[00:29:47] Speaker 02:
Let them at least pass through the zone.

[00:29:53] Speaker 02:
Mr. Peters said delicate balance, this is indelicate, and we didn't speak much today about over-breath, but even though it's content neutral, the idea that you cannot gather a signature for a petition around the government for 56 days, right?

[00:30:09] Speaker 02:
I mean, that's not, yeah, it's content neutral, but that wouldn't survive a traditional time, manner, place, understanding.

[00:30:15] Speaker 02:
Bumper stickers not beyond Mr. Frank.

[00:30:19] Speaker 02:
wearing a t-shirt, right?

[00:30:20] Speaker 02:
Electioneering apparel, you can't go visit the government to take care of business, right?

[00:30:24] Speaker 01:
Under the modified standard, can the Wyoming legislature consider that the voting area could get so awful and unpleasant with, he's a skunk, no, you're a skunk, don't vote for him because it's not just Mr. Frank that's gonna be down there.

[00:30:40] Speaker 01:
Whoever is on the opposite side of issues as him better be down there.

[00:30:45] Speaker 01:
And it can get so awful that people are just

[00:30:48] Speaker 01:
I'm not dealing with it.

[00:30:50] Speaker 01:
I'm not voting.

[00:30:52] Speaker 01:
Not a ballot consideration.

[00:30:53] Speaker 02:
Your Honor, I think I go back and we briefed, you know, about having a modicum of civic courage.

[00:30:59] Speaker 02:
I don't want to diminish voting rights.

[00:31:00] Speaker 02:
I don't want to diminish that there's compelling interest to protect voting, even during the absentee period.

[00:31:06] Speaker 02:
I'm just saying that now you're eclipsing, you know, all of this in the name of a parade of horribles, right, that could be resolved with, you know, if voter intimidation is occurring, prosecute that.

[00:31:16] Speaker 02:
That's the beauty of traditional strict scrutiny.

[00:31:18] Speaker 02:
It's not to say these aren't compelling governmental interests.

[00:31:20] Speaker 02:
It's just that you've got to build a record and show why you're doing it.

[00:31:23] Speaker 02:
And to Burson's point, I'll close on this, Burson's point, you know, this court has already affirmed the election day zone, right?

[00:31:33] Speaker 02:
So you're not going to have to rerun the election even if these experiments are allowed to happen during absentee voting that permits free speech before censoring it.

[00:31:42] Speaker 02:
Unless there are no further questions.

[00:31:43] Speaker 04:
Yes, I do have one.

[00:31:44] Speaker 04:
You said that, I mean, playing off what Judge Phillips said, I mean,

[00:31:49] Speaker 04:
even part of Burson's justification for going for a modified tailoring, that some of these things are hard to determine, they're hard to decipher exactly what the implication of this harassment is in the moment and even in over 28 days if it just gets unpleasant down there.

[00:32:10] Speaker 04:
I mean, if it just gets ugly down there and somebody hasn't necessarily committed a crime,

[00:32:16] Speaker 04:
Isn't that a valid legislative consideration that there may be people saying, to heck with it, I want to go down there and be confronted by that.

[00:32:24] Speaker 04:
Why isn't that a valid consideration?

[00:32:26] Speaker 02:
It's a valid consideration, Your Honor, but if censorship is the solution to addressing it, then it needs to be proven up in the record and narrowly tailored.

[00:32:34] Speaker 04:
But isn't that what Burson said in justifying the modified approach that sometimes these things are hard to have proof about?

[00:32:43] Speaker 02:
Your Honor, in combination with the concerns that if something goes wrong, we can't redo the election, or that voter is not going to come back that day.

[00:32:50] Speaker 02:
That's not at issue in the absentee voting period.

[00:32:55] Speaker 02:
Thank you.

[00:32:56] Speaker 04:
Thank you.

[00:32:58] Speaker 04:
Case is submitted.

[00:32:59] Speaker 04:
Thank you for your fine arguments.

[00:33:01] Speaker 04:
The court will be in recess.

[00:33:04] Speaker 04:
Thank you.