[EL] MVA v. Mansky hypothetical

Tue Feb 27 13:37:08 PST 2018

The state’s brief in *Mansky* hammers on the efforts of Minnesota Voters
Alliance, et al., in 2010: that is, not only wearing buttons requesting to
be ID’d (which fall under the ban of political attire) but actually
displaying ID as part of an effort to convince other voters in the area
that it is required, when it is not required under Minnesota law.

If the Minnesota law is upheld, could state law constitutionally extend to
banning the display of photo ID in polling places?

---------- Forwarded message ----------
From: Rick Hasen <rhasen at law.uci.edu>
Date: Tue, Feb 27, 2018 at 4:25 PM
Subject: [EL] more news 2/27/18
To: "law-election at uci.edu" <law-election at uci.edu>

“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.

[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97777&title=%E2%80%9CFree%20Speech%20vs.%20Freedom%20From%20Intimidation%20The%20Supreme%20Court%20is%20set%20to%20reconsider%20campaigning%20at%20the%20ballot%20box%3B%20Justice%20Scalia%20got%20it%20right%20the%20first%20time.%E2%80%9D>

Posted in campaigns <http://electionlawblog.org/?cat=59>, Scalia
<http://electionlawblog.org/?cat=123>, Supreme Court
<http://electionlawblog.org/?cat=29>

-- 
Steve Klein
Attorney*
https://www.linkedin.com/in/stephenrklein

**Licensed to practice law in Illinois and Michigan*
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