Court Upholds VA Restriction on Voter Registration at VA Medical Centers

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By on February 29, 2008 in Court Cases with 0 Comments

The Federal Circuit Court of Appeals has ruled constitutional a Department of Veterans Affairs regulation that led to the VA denying access to the Menlo Park, California facility for the purpose of registering veterans to vote. (Preminger v. Secretary of Veterans Affairs, C.A.F.C. No. 2007-7008, 2/25/08)

The chairman of the Santa Clara County Democratic Central Committee (SCCDCC) brought the constitutional challenge to the VA regulation after he was ordered off the Menlo Park campus when attempting to do a voter registration drive in 2004. (Originally filed in the wrong courts, the case finally made its way to the Federal Circuit.) Mr. Preminger argued among other things that the regulation—which bars unauthorized demonstrations including “partisan activities”–violates the First Amendment and is therefore unconstitutional. (Opinion pp. 1-2)

The SCCDCC argued that the VA facilities should be deemed public fora. It pointed out that the Menlo Park Medical Center—like most VA medical centers—consists of numerous buildings and outdoor areas. It conceded that many of the buildings are not open to the public. Nevertheless it argued that many of the facility’s buildings are publicly accessible, the 95-acre VA facility is the largest open land expanse in the city of Menlo Park, has a bus stop, houses many veterans, and has several through streets and walkways. (pp. 17-18)

The government, on the other hand, argued that the facility is nonpublic property, and that the VA mission “does not comport with opening up its property as public or dedicated public fora.” (p., 18)

The appeals court has sided with the government, concluding that VA medical centers—including Menlo Park—”are, for First Amendment purposes, nonpublic for a”…and “the fact that the public has been given access…is outweighed by the nature and purpose of the Medical Center.” (pp. 20-21)

The reason the nonpublic nature of the facility is important is that the government is given more leeway to place restrictions on speech. Such restraints will pass legal muster unless they are “unreasonable or they embody impermissible view-point discrimination.” (p. 21; citations omitted)

In short, the appeals court now holds that the VA restriction on partisan activities by visitors is “reasonable and viewpoint neutral. The VA must be able to maintain a place of healing and rehabilitation for the veterans for which it provides services.” (p. 23)

© 2020 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.