[EL] Minnesota Voters Alliance v. Mansky

[Pildes, Rick]

The stakes in today's decision are small, for once in an election-law case before the Court.

The most intriguing aspect is that it brings into the polling place a version of the distinction between "electoral advocacy" and "issue advocacy" that is central in the Court's campaign-finance cases, although the Court does not say so explicitly.  In banning "political apparel" at polling places, Minnesota ran into the problem that the term "political" is too vague and potentially expansive to be used to prohibit expression, even in the polling place.

The Court offered some suggestions about what a more narrowly tailored concept of "political" would be.  The Court pointed to California law as a kind of template, which prohibits "the visible display . . . of information that advocates
for or against any candidate or measure," including the "display of a candidate's name, likeness, or logo," the
"display of a ballot measure's number, title, subject, or logo," and "[b]uttons, hats," or "shirts" containing such
information).  This is very close to prohibiting expression that involves electoral advocacy, as it would be understood in the campaign context, which can also be regulated in that context.

So the line the Court is imposing here on the boundaries of legitimate state regulatory power in the polling place is roughly or intuitively similar to the boundary it has drawn in the campaign-finance context.

When I teach the case, I will likely teach it in conjunction with the campaign finance cases.


Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law, Vanderbilt Hall 507
40 Washington Square South, NY, NY 10012
212 998-6377

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