[EL] more news 2/27/18

Tue Feb 27 13:25:09 PST 2018

"Free Speech vs. Freedom From Intimidation The Supreme Court is set to reconsider campaigning at the ballot box; Justice Scalia got it right the first time."<http://electionlawblog.org/?p=97777>
Posted on February 27, 2018 1:22 pm<http://electionlawblog.org/?p=97777> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/02/the-supreme-court-is-reconsidering-campaigning-at-the-ballot-box-in-minnesota-voters-alliance-v-mansky.html> for Slate. It begins:

On Wednesday, the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky<http://www.scotusblog.com/case-files/cases/minnesota-voters-alliance-v-mansky/?wpmp_switcher=desktop>, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a "Make America Great Again<http://www.slate.com/articles/news_and_politics/politics/2015/08/trump_s_campaign_hat_making_america_great_again_starting_with_this_hat.html>" cap or a "pussyhat<http://www.slate.com/blogs/xx_factor/2017/01/06/knitters_across_the_country_are_making_cat_ear_pussyhats_for_the_women_s.html>" to the polling place.

The question is a close one because it pits the First Amendment right to free speech against the right to vote free of intimidation and interference at the polling place. Considering a similar case<https://supreme.justia.com/cases/federal/us/504/191/case.html> in 1992, banning electioneering in areas around polling places Justice Antonin Scalia got it right: Polling places are and have traditionally been "nonpublic forums," where the state can decide that the right to free speech needs to give way to the tranquility of the election booth. The point is even more urgent in our highly polarized times....

The difficult part of this case comes with the discretion given to polling-place officials. The ban applies not just to campaign messages but also to other political T-shirts. So one poll worker may decide that someone wearing a #MeToo button is too political, but another may not. This could allow for selectivity and arbitrariness at the polling place.

One potential solution<http://www.supremecourt.gov/DocketPDF/16/16-1435/27509/20180111122615333_MVA%20acb%20-%20final.pdf> to this problem suggested by campaign finance opponent Jim Bopp is for the Supreme Court to construe the statute to apply only to messages of express advocacy, like "Vote for Trump" or "Clinton 2016." This is no solution, however. Everyone knows that a MAGA hat is Trump campaign gear and a pussyhat opposition to Trump, even if they do not contain express words of advocacy. Indeed, if the court construed the statute to apply only to express advocacy, it would become totally ineffective.

The solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly. If there is any evidence of viewpoint discrimination-say against Tea Party messages at Democratic-leaning polling places-then it would be time to bring a new lawsuit challenging the law as applied on the ground.

There is a time for politicking and a time for voting. A ruling for Minnesota would ensure that states can recognize the tranquility of the ballot box, especially at a time where our national politics are heated to the point of inspiring violence<http://losangeles.cbslocal.com/2016/11/08/2-separate-fights-erupt-at-orange-county-polling-places/> at the voting booth. Justice Scalia is gone, but let's hope that the Supreme Court's remaining First Amendment stalwarts continue to recognize this sanctity.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

"Voter Purges: The Risks in 2018"<http://electionlawblog.org/?p=97775>
Posted on February 27, 2018 12:54 pm<http://electionlawblog.org/?p=97775> by Rick Hasen<http://electionlawblog.org/?author=3>

New from Jonathan Brater<https://www.brennancenter.org/publication/voter-purges-risks-2018> of the Brennan Center.
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Posted in election administration<http://electionlawblog.org/?cat=18>

"The Latest: Trump campaign statement appears to violate law"<http://electionlawblog.org/?p=97773>
Posted on February 27, 2018 12:39 pm<http://electionlawblog.org/?p=97773> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<https://apnews.com/e5443ec114884495b5df352b97fd9bb2>

A statement released by the Trump campaign attributed to White House senior adviser Jared Kushner Tuesday is in seeming violation of federal law prohibiting the use of official titles in political work..
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Posted in campaigns<http://electionlawblog.org/?cat=59>, conflict of interest laws<http://electionlawblog.org/?cat=20>

On 4-3 Vote, Pennsylvania Supreme Court Denies Stay in Congressional Redistricting Case, Moving Question to U.S. Supreme Court's Justice Alito<http://electionlawblog.org/?p=97771>
Posted on February 27, 2018 12:36 pm<http://electionlawblog.org/?p=97771> by Rick Hasen<http://electionlawblog.org/?author=3>

Here is the order<http://www.pacourts.us/assets/files/setting-6015/file-6931.pdf?cb=a92c0a> of the PA Supreme Court.

There had been a delay in Justice Alito getting the petition, and apparently it was the wait for this formality to occur.  (The PA legislative leaders issued incorrect information that the press release had already been filed.)

Here's my handicapping of its chance<http://electionlawblog.org/?p=97664>s: a big long shot.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

In Blow to Fair Elections, Nonpartisanship and Professionalism, Mike Haas Out as Election Administrator in Wisconsin<http://electionlawblog.org/?p=97769>
Posted on February 27, 2018 12:32 pm<http://electionlawblog.org/?p=97769> by Rick Hasen<http://electionlawblog.org/?author=3>

Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2018/02/27/state-elections-commission-steps-down-amid-criticism-republicans/376799002/>

The head of the Wisconsin Election Commission said he would step down from his leadership role and eventually leave the agency because of opposition from Republican lawmakers.

Administrator Mike Haas announced the news in a resignation letter this week to the commission's bipartisan board.

Last month GOP state senators denied the confirmations<https://www.jsonline.com/story/news/politics/2018/01/23/wisconsin-republicans-hope-oust-leaders-ethics-elections-commissions-tuesday/1054414001/> for Haas and his counterpart at the Wisconsin Ethics Commission. The rejection of their confirmation stemmed from a controversial investigation of Gov. Scott Walker and other Republicans by the Government Accountability Board, the agency that preceded both commissions.

Haas said he had little to do with that investigation and had achieved a record of success since GOP lawmakers disbanded the GAB and created his agency.

"Rather than celebrating that success and taking credit for it, some have focused on settling scores with imaginary ghosts of the Government Accountability Board. My appointment was a casualty of that obsession," Haas wrote in his letter.

Another consummate professional and straight shooter being forced out by Republican leadership to make way for political hacks.

Any election jurisdiction in the country would be lucky to have Mike working for them.
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Posted in election administration<http://electionlawblog.org/?cat=18>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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