Minnesota Voters Alliance; Mary Amlaw; Ken Wendling; Tim Kirk v. Keith M. Ellison

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-3094
___________________________
Minnesota Voters Alliance; Mary Amlaw; Ken Wendling; Tim Kirk
Plaintiffs - Appellants
v.
Keith M. Ellison, in his official capacity as Attorney General; Brad Johnson, in his
official capacity as Anoka County Attorney
Defendants - Appellees
------------------------------
American Civil Liberties Union of Minnesota
Amicus on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: October 21, 2025
Filed: August 20, 2026
____________
Before GRUENDER, STRAS, and KOBES, Circuit Judges.
____________

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STRAS, Circuit Judge.
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.
I.
Minnesota has a law that allows felons to vote unless they are currently behind
bars. See Minn. Stat. § 201.014. Minnesota Voters Alliance, a group focused on
election integrity, challenged the law in state court. Its view is 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. 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.
Const. art. VII, § 1; see also 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, 10 N.W.3d 163, 170 (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.

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(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.
Minn. Stat. § 211B.075, subd. 2 (emphasis added). Also prohibited are voter
“[i]ntimidation” and “[i]nterference with registration or voting.” Id. § 211B.075,
subds. 1, 3.
Enforcement takes several forms. One is criminal liability, which allows state
or county prosecutors to pursue gross-misdemeanor charges against violators. See
id. § 211B.075, subd. 5(a). A second is a civil action, brought by those same
officials, “to prevent or restrain a violation . . . if there is a reasonable basis to
believe” someone intends to violate the statute. Id. § 211B.075, subd. 5(b). Anyone
“injured by” a suspected violation can bring one too. Id. No matter who files it,
violations give rise to “damages, together with costs of investigation[,] . . .
reasonable attorney fees,” and up to a $1,000 “civil penalty.” Id. § 211B.075, subd.
5(c).
The Alliance is worried that it already has a target on its back. The group’s
director has repeatedly written on whether felons can vote. And members plan to
continue their education and advocacy efforts for as long as they can. To head off
government enforcement efforts, the Alliance brought its own preemptive lawsuit
against Attorney General Keith Ellison and Anoka County Attorney Brad Johnson
in federal district court.1 It seeks a declaratory judgment and injunctive relief against
the law, which it believes violates the First Amendment. A counterclaim filed by
Anoka County alleges that it is already too late: it seeks money damages and
injunctive relief “restraining” the Alliance from violating the law. In response, the
group amended its own complaint to allege that the counterclaim is itself evidence
of a well-founded fear of prosecution.
1 When we refer to the “Alliance,” we include the two individual appellants,
Mary Amlaw and Tim Kirk.

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Unpersuaded by the Alliance’s constitutional arguments, the district court
dismissed the complaint and denied a preliminary injunction. With the counterclaim
still pending, however, the case is not yet final, meaning we can only review the
decision to deny a preliminary injunction. See 28 U.S.C. § 1292(a)(1) (authorizing
appeals from orders “refusing . . . injunctions”); Kropp v. Ziebarth, 557 F.2d 142,
143 n.1 (8th Cir. 1977) (explaining that “[s]ince the counterclaim is still pending,
the District Court’s order . . . is not a final order”).
II.
Before we do, however, we first need to decide whether the Alliance has
standing to challenge the law. At this early stage, “we assume the allegations in the
complaint are true and view them in the light most favorable to [the organization].”
Telescope Media Grp. v. Lucero, 936 F.3d 740, 749 (8th Cir. 2019).
Standing has three requirements: “(1) an injury in fact; (2) a causal connection
between the injury and the challenged law; and (3) a likelihood of redressability.”
Hershey v. Jasinski, 86 F.4th 1224, 1229 (8th Cir. 2023). The traceability and
redressability requirements pose no problem for the Alliance, given that Minnesota’s
law stands as a barrier to its speech. See Telescope Media Grp., 936 F.3d at 749.
The disagreement is about whether it has suffered an injury in fact.
To qualify, any harm must be “actual or imminent.” Spokeo, Inc. v. Robins,
578 U.S. 330, 339 (2016) (citation omitted). The Alliance has one of each. The time
and money involved in defending against the counterclaim are actual injuries.2 See
Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 690, 693 (8th Cir. 2017)
(explaining that “defending against [a] . . . suit” is a sufficient injury). It also faces
2 We cannot ignore the amended complaint. See In re Atlas Van Lines, Inc.,
209 F.3d 1064, 1067 (8th Cir. 2000) (explaining that the resolution of “questions of
subject matter jurisdiction” depends on “the face of the amended complaint”). The
adequacy of the injury now rests on what it alleges.

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imminent injury from the possibility that a court will “prevent or restrain” it from
speaking or require it to pay money damages. Minn. Stat. § 211B.075, subd. 5(b);
see id. § 211B.075, subd. 5(c); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159
(2014). It makes no difference that Anoka County’s counterclaim appears to be on
hold for the time being. Nothing prevents it from changing its mind again,
particularly as the rest of the case moves forward. Cf. FBI v. Fikre, 601 U.S. 234,
241 (2024) (“To show that a case is truly moot, a defendant must prove no reasonable
expectation remains that it will return to [its] old ways.” (alteration in original)
(citation omitted)).
We commonly see two types of injuries under the First Amendment. One
occurs when a law restricts speech “affected with a constitutional interest” and “a
credible threat of prosecution” exists. Dakotans for Health v. Noem, 52 F.4th 381,
386 (8th Cir. 2022) (citation omitted). Closely related is the second, “self-
censor[ship],” when speakers “would like to engage in arguably protected speech,
but [are] chilled from doing so by the existence of the statute.” Id. (citation omitted).
We have described these requirements as “lenient” and “forgiving,” Turtle Island
Foods, SPC v. Thompson, 992 F.3d 694, 699–700 (8th Cir. 2021), because a “general
expression of intent [can be] enough,” Jones v. Jegley, 947 F.3d 1100, 1103 (8th Cir.
2020). Especially at the preliminary-injunction stage, when allegations are what
matter. See Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016)
(distinguishing between facial and factual attacks on jurisdiction); Jones, 947 F.3d
at 1103 (focusing on just the allegations in an appeal from a preliminary-injunction
ruling).
Although members of the Alliance have not gone as far as self-censoring, they
describe their “trepidation” about speaking. And the counterclaim on its own, even
if not a prosecution, is enough to credibly threaten its constitutional interest. See
Jones, 947 F.3d at 1104; cf. Rodgers v. Bryant, 942 F.3d 451, 455 (8th Cir. 2019)
(explaining that “fear[s] of prosecution [are not] objectively unreasonable” when
enforcement efforts have already occurred). It reflects a view among some
government officials that the statute covers the Alliance’s speech. Add the fact that

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Minnesota itself has argued throughout this litigation that the First Amendment does
not protect what the Alliance has already said, and a prosecution could be just around
the corner. See Chiles v. Salazar, 607 U.S. 627, 638 n.* (2026) (concluding there
was standing when the state had “fought” the “suit through three courts over three
years” and “expressly declined to disavow enforcement”); Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 302 (1979) (explaining that one relevant factor
is whether “the State has not disavowed any intention of invoking the criminal
penalty provision”). Both actual and imminent, the Alliance’s First Amendment
injuries give it standing.
III.
Standing is only the first step for the Alliance. Getting a preliminary
injunction requires consideration of four factors: “(1) the threat of irreparable harm
to the movant; (2) the state of the balance between this harm and the injury that
granting the injunction will inflict on [the nonmovant]; (3) the probability that [the]
movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc.
v. C. L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). “In balancing the
equities[,] no single factor is determinative.” Id.
Although we review the ultimate decision to deny a preliminary injunction for
an abuse of discretion, the legal merits of the claim—including the likelihood of
success—are subject to de novo review. See Home Instead, Inc. v. Florance, 721
F.3d 494, 497 (8th Cir. 2013). Faced with a “limited record” and “arguments that
may not be fully developed,” it requires “an educated guess about the outcome of
the case.” Rodgers, 942 F.3d at 466 (Stras, J., concurring in part and dissenting in
part); see Benson Hotel Corp. v. Woods, 168 F.2d 694, 697 (8th Cir. 1948) (“The
decision of the trial court on granting the motion for preliminary injunction will not
estop either of the parties on the trial of the case on its merits . . . .”).

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A.
The First Amendment, as applied to the states through the Fourteenth
Amendment, prohibits laws “abridging the Freedom of speech.” U.S. Const. amend.
I; see Wagner v. Jones, 664 F.3d 259, 269 (8th Cir. 2011) (“The First Amendment
is binding on the states through the Fourteenth Amendment.”). “It promotes the free
exchange of ideas by allowing people to speak in many forms and convey a variety
of messages, including those that ‘invite dispute’ and are ‘provocative and
challenging.’” Telescope Media Grp., 936 F.3d at 750 (quoting Terminiello v. City
of Chicago, 337 U.S. 1, 4 (1949)).
Here, the “dispute[d]” message is that felons are ineligible to vote, which in
Minnesota’s view is not only “provocative and challenging,” but criminal. Id.
(quoting Terminiello, 337 U.S. at 4). If the First Amendment protects the Alliance’s
speech and Minnesota’s law regulates its content, then strict scrutiny applies. See
Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015). If either condition is absent,
however, the standard is more forgiving. See Free Speech Coal., Inc. v. Paxton, 606
U.S. 461, 471 (2025) (explaining that “[c]ontent-neutral laws . . . are subject to an
intermediate level of scrutiny” (citation omitted)); R.A.V. v. City of St. Paul, 505
U.S. 377, 387–89 (1992) (explaining that “proscribable speech” is less protected
than “fully protected speech”).
1.
There is no doubt this case involves speech. Between the opinion pieces
written by the Alliance’s director and public statements by the organization, they are
trying to persuade Minnesotans that felons cannot vote if they have yet to complete
their sentences. See Minn. Const. art. VII, § 1. The First Amendment protects
speech on a matter of public concern, like these statements, whether they are correct
or not. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346–47 (1995)
(explaining that the First Amendment applies to efforts to advocate for an idea by

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distributing “handbills”); Mills v. Alabama, 384 U.S. 214, 219 (1966) (recognizing
that publishing “editorials” is protected by the First Amendment).
In fact, speech of this type is at the “core of the First Amendment.”
Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005) (en banc).
Political speech of all kinds, but particularly about the government, is essential to
assuring the “unfettered interchange of ideas.” Roth v. United States, 354 U.S. 476,
484 (1957); see State v. Crawley, 819 N.W.2d 94, 121 (Minn. 2012) (Stras, J.,
dissenting) (highlighting “the indisputable principle that criticism of the
government—and those who run it—is at the core of the First Amendment”).
Regardless of whether the government agrees with it.
Unsurprisingly, Minnesota and Anoka County believe the Alliance’s speech
falls within one of the “historically unprotected categories” they are free to regulate.
United States v. Stevens, 559 U.S. 460, 470 (2010). 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.” (Emphases added). The former qualifies
as speech designed to generate “political and social change.” Roth, 354 U.S. at 484.
The latter, however, is the “[s]preading [of] false information in and of itself,”
Herbert v. Lando, 441 U.S. 153, 171 (1979), because the law is knowable and
certain.
The Supreme Court rejected a similar argument in United States v. Alvarez,
567 U.S. 709 (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. See id. at 713–17 (plurality
opinion). 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. See id.
at 722 (plurality opinion); id. at 732–33 (Breyer, J., concurring in the judgment). 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.” Id. at 718 (plurality opinion).

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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. Id. 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. Id. at 722. 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.” Milkovich v. Lorain Journal Co., 497
U.S. 1, 18 (1990).
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. See R.A.V., 505 U.S. at 392 (explaining that the government
cannot “license one side of a debate to fight freestyle, while requiring the other to
follow Marquis of Queensberry rules”).
Minnesota Voters Alliance v. Mansky is not to the contrary. 585 U.S. 1 (2018).
To be sure, it left no “doubt that the State may prohibit messages intended to mislead
voters about voting requirements and procedures.” Id. at 18 n.4 (emphasis added).
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. 567 U.S. at 722 (plurality opinion) (rejecting “the
notion that false speech” is “presumptively unprotected”); id. at 733 (Breyer, J.,
concurring in the judgment) (explaining that false statements receive some First
Amendment “protection[s]”). 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. Mansky, 585 U.S. at 18 n.4.

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Curbing unprotected speech, like fraud, is one situation. See Illinois ex rel.
Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003) (“[T]he
government’s power to protect people against fraud has always been recognized in
this country and is firmly established[.]” (citation omitted)). But Minnesota’s statute
does not work like a fraud statute because, like the one in Alvarez, it targets mere
knowing misstatements. See Minn. Stat. § 211B.075, subd. 2 (requiring that the
speaker “intends to impede or prevent another person from exercising the right to
vote,” not that they succeed in doing so). There is no requirement that someone
listening acts upon it to their detriment. See id.; cf. U.S. Bank N.A. v. Cold Spring
Granite Co., 802 N.W.2d 363, 373 (Minn. 2011) (requiring that the fraudulent
“representation caused action in reliance thereon”); Madigan, 538 U.S. at 620
(explaining that the fraud exception applied to telemarketers who had obtained
millions in donations through statements that were made “with the intent to mislead
the listener, and succeeded in doing so”). Reliance, the element that is missing in
Minnesota’s statute, is what creates the speech-related harm that leaves fraud
unprotected. See Alvarez, 567 U.S. at 719 (plurality opinion) (discussing how
“defamation” or “fraud” are types of “legally cognizable harm[s] associated with . . .
false statement[s]”); Animal Legal Def. Fund v. Reynolds, 8 F.4th 781, 786 (8th Cir.
2021) (focusing on the “harm” speech causes).
Other “legally cognizable harm[s]” will do too. Alvarez, 567 U.S. at 719
(plurality opinion) (emphasis added); see Animal Legal Def. Fund, 8 F.4th at 786
(concluding “that intentionally false speech undertaken to accomplish a legally
cognizable harm may be proscribed without violating the First Amendment”).
Animal Legal Defense Fund, for example, involved a law that prohibited
“access[ing] . . . an agricultural production facility by false pretenses.” Id. at 785
(citation omitted). We relied on the “ancient cause of action” of “[t]respass” to
conclude that the false speech received no First Amendment protection. Id. at 786.
Using that case as a guide, Minnesota and Anoka County argue that the Alliance’s
speech is unprotected because it leads to the “legally cognizable harm” of preventing
voters from casting their ballots. Id.

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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.” Alvarez, 567 U.S. at 726 (plurality opinion);
see id. at 737 (Breyer, J., concurring in the judgment) (“To permit those who have
not earned those honors to claim otherwise dilutes the value of the 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. Free Speech Coal., 606 U.S. at 471 (citation
omitted); cf. Taylor v. Beckham, 178 U.S. 548, 577 (1900) (“Our system of elections
was unknown to the common law, and the whole subject is regulated by constitutions
and statutes passed thereunder.”).
In recent years, the Supreme Court has refused to expand the categories of
unprotected speech to include “depictions of animal cruelty,” Stevens, 559 U.S. at
468–69, violent video games, see Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792–
93 (2011), and most relevant here, non-fraudulent, non-defamatory false statements,
see Alvarez, 567 U.S. at 722 (plurality opinion); id. at 731–33 (Breyer, J., concurring
in the judgment). Just like those categories, there is no “long . . . tradition of
proscription” of false statements connected to voting. Brown, 564 U.S. at 792; see
Stevens, 559 U.S. at 468–72 (discussing the exclusivity of historically based
exceptions). Minnesota and Anoka County may think the Alliance’s speech “is not
worth it,” but the First Amendment disagrees.3 Stevens, 559 U.S. at 470.
2.
Protected, however, does not mean untouchable. It just means the government
has a higher burden to justify its regulation, the specifics of which determine the
3 Nor is anything the Alliance said a “true threat.” Virginia v. Black, 538 U.S.
343, 360 (2003). At no point did it “communicate a serious expression of an intent
to commit an act of unlawful violence to a particular individual or group of
individuals.” Id. at 359.

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level of scrutiny it receives. See, e.g., City of Austin v. Reagan Nat’l Advert. of
Austin, LLC, 596 U.S. 61, 68 n.3 (2022) (explaining that courts must decide “which
level of scrutiny applies” by looking at how the law regulates speech). When the
government tries to regulate protected speech because of its content, strict scrutiny
applies. See Reed, 576 U.S. at 163. “[R]egulations that are unrelated to . . . content,”
on the other hand, “are subject to an intermediate level of scrutiny.” Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).
Speech regulations come in all forms. Some are explicit in their targeting of
certain “subject matter[s].” Reed, 576 U.S. at 163 (explaining how some laws
“defin[e] regulated speech by particular subject matter”). Others use content-neutral
language to disguise a content-based law. See id. (discussing “subtle” laws that
“regulate[] speech by its function or purpose”). The rule is simple enough to state:
strict scrutiny “applies to” regulations based on “the topic discussed or the idea or
message expressed.” City of Austin, 596 U.S. at 69 (quoting Reed, 576 U.S. at 163);
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771
(1976) (concluding that a law regulated content when it “single[d] out speech of a
particular content”). In practice, however, it is harder to apply. See City of Austin,
596 U.S. at 69.
Fortunately, Minnesota made no attempt to hide the ball. Its “target[],” id.
(quoting Reed, 576 U.S. at 163), is a narrow sliver of speech that “impede[s] or
prevent[s] another person from exercising the right to vote,” Minn. Stat. § 211B.075,
subd. 2(a)(1). Only by considering the specific words spoken can a listener figure
out whether the statute applies. See Vidal v. Elster, 602 U.S. 286, 294 (2024) (“[A]
restriction on speech is content based if the ‘law applies to particular speech because
of the topic discussed or the idea or message expressed.’” (quoting Reed, 576 U.S.
at 163)). The words themselves must “impede or prevent another person” from
voting. Minn. Stat. § 211B.075, subd. 2(a)(1); see Reed, 576 U.S. at 164 (concluding
that a law regulated based on content when it treated “signs inviting people to
attend . . . worship services . . . differently from signs conveying other types of

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ideas”). Only then, based on the ideas expressed and the speaker’s intent, can the
government step in.
Undeterred by the law’s content-based focus, Anoka County believes
intermediate scrutiny applies. For support, it relies on Justice Breyer’s concurrence
in Alvarez. 567 U.S. at 730–32 (Breyer, J., concurring in the judgment) (weighing
“the seriousness of the speech-related harm the provision will likely cause, the nature
and importance of the provision’s countervailing objectives, the extent to which the
provision will tend to achieve those objectives, and whether there are other, less
restrictive ways of doing so” in determining what standard to apply). As the
“position taken by those Members who concurred in the judgment[] on the narrowest
ground[],” it thinks the concurrence is controlling. Marks v. United States, 430 U.S.
188, 193 (1977) (citation omitted).
We have rejected this theory before, and we do so again. Animal Legal
Defense Fund explained that, because no single opinion from Alvarez was a “logical
subset” of the other, neither the plurality opinion nor the concurrence was binding
on its own. 8 F.4th at 785. What we can confidently say, however, is that any
regulation of “false political speech” is subject to “strict scrutiny,” regardless of
whether the various opinions in Alvarez overlap elsewhere. 281 Care Comm. v.
Arneson, 766 F.3d 774, 783–84 (8th Cir. 2014). The reason, of course, is that it
“occupies the core of the protection afforded by the First Amendment.”4 Id. at 784.
4 For that reason, even if Justice Breyer’s concurrence controlled, strict
scrutiny would still apply. See Alvarez, 567 U.S. at 731–32 (Breyer, J., concurring
in the judgment). 281 Care Committee all but recognized as much. 766 F.3d at 784
(discussing how, under Justice Breyer’s view, “almost no amount of fine tailoring
could achieve a similar government interest in a political context”).

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3.
Strict scrutiny is a “demanding standard.” Brown, 564 U.S. at 799. As applied
here, it requires Minnesota and Anoka County to prove that the statute is “narrowly
tailored to serve [a] compelling state interest[].” Reed, 576 U.S. at 163.
“[P]rotecting voters from confusion and undue influence” may well be a compelling
governmental interest. Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality
opinion). But here, Minnesota has not adopted a narrowly tailored approach. See
R.A.V., 505 U.S. at 395–96; see also 281 Care Comm., 766 F.3d at 787 (explaining
that “the state does not have carte blanche to regulate the dissemination of false
statements during political campaigns”). It both “regulates . . . too little and too
much.” Miller v. Ziegler, 109 F.4th 1045, 1052 (8th Cir. 2024) (“A narrowly tailored
regulation must be the least-restrictive alternative, not too under- or over-inclusive.”
(emphasis added)).
It overreaches because at least one speech-promoting alternative exists:
counter speech. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,
800 (1988) (explaining that a law was overinclusive because the state had “more
benign and narrowly tailored options”). Typically, “[t]he remedy for speech that is
false is speech that is true.” Alvarez, 567 U.S. at 727 (plurality opinion). Especially
on political issues, where “counter[ ]speech is the tried[-]and[-]true buffer and
elixir.” 281 Care Comm., 766 F.3d at 793 (highlighting “criminal sanctions” or
endless litigation before an administrative agency as “wholly overbroad and
overburdensome” options). “[P]lac[ing] potential criminal sanctions” in the way of
protected speech, by contrast, is one of the least tailored ways of advancing a
government interest, because it has the broadest chilling effect. Id. (labeling
criminal penalties “overbroad and overburdensome”).
Nor is it “necessary” to advance Minnesota’s interest. Id. at 789. On the
contrary, it has uniquely within its possession the names and contact information of
every felon on supervision. See Minn. Stat. § 243.05, subds. 3, 6. Rather than
limiting what others say, it could have launched an education campaign consisting

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of calls, texts, or emails informing them of their rights. See 281 Care Comm., 766
F.3d at 793 (remarking that counter speech is likely at its “most effective” in the
political context); cf. Alvarez, 567 U.S. at 729 (plurality opinion) (suggesting that
the government could create an online database listing the recipients of military
awards to counter stolen-valor claims). Or correction and probation officers could
have provided the information in regular “communication[s].” Minn. Stat. § 243.05,
subd. 3. Indeed, if anything, counter speech would be a more effective “buffer and
elixir” here than in the typical case, because the government knows exactly who it
needs to reach and has ready ways to do it. See, e.g., 281 Care Comm., 766 F.3d at
778 (considering a law that criminalized knowingly false speech designed to
“promote or defeat a ballot question” (citation omitted)).
Overinclusiveness can also come from overenforcement. See id. at 790–92.
Here, “the universe of potential complainants is not restricted to state officials who
are constrained by explicit guidelines or ethical obligations,” which means those
who oppose the Alliance’s message could sue to “inflict[] political damage” on the
organization. Id. at 790 (quoting Susan B. Anthony List, 573 U.S. at 164). Although
the party bringing the counterclaim here is a government actor, nothing prevents
“any person injured by an act prohibited by [the law]” from bringing a separate civil
action to “prevent or restrain” the Alliance’s speech and collect money damages.
Minn. Stat. § 211B.075, subd. 5(b) (emphasis added); see id. § 211B.075, subd. 5(c).
It makes organizations like the Alliance “easy targets” of abusive lawsuits. 281 Care
Comm., 766 F.3d at 790 (quoting Susan B. Anthony List, 573 U.S. at 164).
In other respects, Minnesota’s law does too little. Other types of speech also
undermine election integrity. See, e.g., Brown, 564 U.S. at 801–02 (concluding that
a statute was underinclusive because it regulated violent video games but left other
forms of violent media untouched). “[I]mped[ing] or prevent[ing]” eligible voters
from casting their ballots is one problem. Minn. Stat. § 211B.075, subd. 2(a)(1).
Another is encouraging participation by ineligible voters, including minors and non-
citizens. See Minn. Const. art. VII, § 1 (requiring eligible voters to be “18 years of
age” and a “citizen of the United States”). Both undermine election integrity, but

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Minnesota has criminalized one but not the other. A law that allows the Alliance to
run an advertisement saying that 16-year-olds can vote, but not one saying that
felons cannot, “undercut[s] significantly [the] defense of the [statute].” Boos v.
Barry, 485 U.S. 312, 329 (1988); see 281 Care Comm., 766 F.3d at 795 (explaining
how treating newspaper advertisements and editorials with the same false content
differently would “not advance [the] stated interest”). If Minnesota’s election-
integrity interest “is compelling enough to justify abridging core constitutional
rights,” it must “enact regulations that substantially protect that interest from
similarly significant threats.” White, 416 F.3d at 750 (emphasis omitted). And here,
it has not.
Strict scrutiny requires more than a loosely tailored law that stifles one side
of a debate. Minnesota both goes too far and not far enough in advancing its interest.
On remand, it is up to the district court to decide “in the first instance” whether the
prohibitions on intimidation and interference will suffer the same fate. Alexis Bailly
Vineyard, Inc. v. Harrington, 931 F.3d 774, 780 (8th Cir. 2019) (citation omitted);
see Minn. Stat. § 211B.075, subds. 1, 3.
B.
The law also allows preemptive lawsuits “to prevent or restrain a violation . . .
if there is a reasonable basis to believe that an individual or entity is committing or
intends to commit a prohibited act.” Minn. Stat. § 211B.075, subd. 5(b) (emphases
added). The Alliance’s position is that it authorizes “censorship, a so-called prior
restraint on speech.” Hershey, 86 F.4th at 1233; see Thomas v. Chi. Park Dist., 534
U.S. 316, 320–21 (2002) (describing prior restraints); see also 4 William Blackstone,
Commentaries *151 (distinguishing between “previous restraints upon publications”
and “censure for criminal matter when published”). If so, it comes “bearing a heavy
presumption against its constitutional validity.” Se. Promotions, Ltd. v. Conrad, 420
U.S. 546, 558 (1975) (citation omitted).

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Once again, the statute does not hide what it does. It allows a court to “prevent
or restrain a violation” after “[t]he attorney general, a county attorney, or any person
injured” files a civil action. Minn. Stat. § 211B.075, subd. 5(b). Those key words,
“prevent or restrain,” mean to “keep” something “from happening” or “prevent (a
person or group) from doing something or acting in a certain way.” The American
Heritage Dictionary of the English Language 1397, 1497 (5th ed. 2016) (providing
definitions of “prevent” and “restrain”). Getting an order of this kind requires a
“reasonable basis to believe that an individual or entity . . . intends to commit a
prohibited act.” Minn. Stat. § 211B.075, subd. 5(b). It authorizes not just a
“restrain[t],” but a “prior restraint”: a “judicial order[] forbidding certain
communications . . . issued in advance of the time that such communications are to
occur.” Alexander v. United States, 509 U.S. 544, 550 (1993) (emphasis omitted)
(citation omitted).
As prior restraints go, this one has several problematic features. One is the
“reasonable[-]basis” standard for granting one. Minn. Stat. § 211B.075, subd. 5(b).
The statute does not tell us what a “reasonable basis” entails, but in other contexts
the answer is not much. See Peterson v. W. Nat’l Mut. Ins. Co., 946 N.W.2d 903,
910 (Minn. 2020) (explaining that the inquiry is about how a “reasonable insurer
would have” acted); State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (equating
a “reasonable basis” with the relatively lenient standard needed to frisk a suspect).
Under it, courts become censors, with little to constrain them other than an educated
guess—a “reasonable basis to believe”—that a violation will occur. Minn. Stat.
§ 211B.075, subd. 5(b); see Se. Promotions, Ltd., 420 U.S. at 559 (“It is always
difficult to know in advance what an individual will say, and the line between
legitimate and illegitimate speech is often so finely drawn that the risks of
freewheeling censorship are formidable.”); see also Vance v. Universal Amusement
Co., 445 U.S. 308, 317 (1980) (per curiam) (seeing no constitutional difference
between an “administrative censor” and a “state trial judge” imposing a prior
restraint).

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Missing are procedural safeguards. See Se. Promotions, Ltd., 420 U.S. at 559
(explaining that a “prior restraint avoids constitutional infirmity only if it takes place
under procedural safeguards designed to obviate the dangers of a censorship system”
(citation omitted)). Nothing prevents a government official from getting an
injunction and then sitting back until the election is over and the speech no longer
matters. See Minn. Stat. § 211B.075, subd. 5(b); Freedman v. Maryland, 380 U.S.
51, 58–59 (1965). After all, the fuse under the statute is particularly short: it covers
speech made “within 60 days of an election,” which is a short enough time frame
that any preliminary determination supporting a prior restraint effectively becomes
final. Minn. Stat. § 211B.075, subd. 2(a); see 281 Care Comm., 766 F.3d at 790
(showing particular concern about lawsuits filed right before an election);
Freedman, 380 U.S. at 59 (requiring a prior restraint to “be limited to preservation
of the status quo for the shortest fixed period compatible with sound judicial
resolution”).
Making matters worse is that any order “prevent[ing] or restrain[ing]” speech,
Minn. Stat. § 211B.075, subd. 5(b), can be of “indefinite duration,” Vance, 445 U.S.
at 316. “Presumably, [speakers] would be required to obey such an order pending
review of [the] merits and would be subject to contempt proceedings” if they decide
to speak, id., even if the message does not “impede or prevent another person from”
voting, Minn. Stat. § 211B.075, subd. 2(a)(1). A prior restraint like that one, as
Vance tells us, is “more onerous and more objectionable than the threat of criminal
sanctions after” a speaker has committed a violation. 445 U.S. at 316. It is a prior
restraint of the worst kind.
The point is that, to the extent the statute authorizes a prior restraint on speech,
the First Amendment stands in the way. We express no opinion, however, about the
constitutionality of any other available remedy. See Minn. Stat. § 211B.075, subd.
5(a)–(d); see also id. § 645.20 (explaining that, “[u]nless there is a provision in the
law that the provisions shall not be severable, the provisions of all laws shall be
severable”); Back v. State, 902 N.W.2d 23, 31 (Minn. 2017) (discussing how
Minnesota courts should “sever as little as possible of an unconstitutional law”).

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C.
A few loose ends remain. One is a facial overbreadth challenge to Minn. Stat.
§ 211B.075, subd. 2. We need not address it, however, because we have already
concluded it cannot be constitutionally applied. See Jacobsen v. Howard, 109 F.3d
1268, 1274 (8th Cir. 1997) (declining to address a facial overbreadth challenge after
“hold[ing] the statutes [we]re unconstitutional as applied”). To the extent the
Alliance believes that other provisions are overbroad, it has waived those arguments.
See United States v. Wearing, 837 F.3d 905, 911 n.6 (8th Cir. 2016) (per curiam)
(explaining that arguments “not sufficiently developed in [the] opening brief” are
waived); Fed. R. App. P. 28(a)(8)(A) (stating that the brief must “cit[e] . . . the
authorities . . . on which the appellant relies”); see also Minn. Stat. § 211B.075,
subds. 1, 3 (covering “intimidation” and “interference” with voting).
The other is a void-for-vagueness theory. Unlike the overbreadth challenge,
which focuses on just the “transmi[ssion]” of election disinformation, this one
attacks the entire statute. Minn. Stat. § 211B.075, subd. 2(a); see Calzone v.
Summers, 942 F.3d 415, 425 (8th Cir. 2019) (en banc) (addressing a lobbyist’s facial
vagueness challenge after saying the law as applied to him was unconstitutional). In
the Alliance’s view, words like “threaten,” “damage,” “harm,” “loss,” “impede,” and
“interfere” are too vague to provide “fair notice of what is prohibited.” United States
v. Williams, 553 U.S. 285, 304 (2008).
Although the law does not define or otherwise explain what these words mean,
they are “not vague.” Calzone, 942 F.3d at 426. Rather, in the absence of a statutory
definition, we apply their common and ordinary meanings, “taking into account the
context in which [they] are used.” Id.; see DRB No. 24, LLC v. City of Minneapolis,
774 F.3d 1185, 1188 (8th Cir. 2014). Even the most abstract terms, like “impede”
and “interfere,” have straightforward definitions that “a person of ordinary
intelligence” can understand. Calzone, 942 F.3d at 426 (citation omitted); see
American Heritage Dictionary, supra, at 881 (defining “impede” as to “retard or

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obstruct the progress of”); id. at 914 (defining “interfere” as to “be or create a
hindrance or obstacle”).
The statute may present challenging applications, but many do. Just because
some situations may raise more difficult interpretive questions than others does not
mean the statute is ambiguous, much less unconstitutionally vague. See United
States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to
which the statute is directed is plainly within its terms, the statute will not be struck
down as vague, even though marginal cases could be put where doubts might
arise.”).
IV.
We accordingly affirm in part, reverse in part, and remand for the entry of a
preliminary injunction in favor of the Alliance and its members. See Trump v. CASA,
Inc., 606 U.S. 831, 851 (2026); Minn. Citizens Concerned for Life, Inc. v. Swanson,
692 F.3d 864, 870 (8th Cir. 2012) (en banc).
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