[EL] Mansky and teaching tools

[Justin Levitt]

Like Rick H., I agree with the Court’s decision.  (If your law makes a
distinction between a shirt with the text of the First Amendment and a
shirt with the text of the Second
<https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf#page=21>,
it’s going to be struck down.)  And I’m also glad that it left substantial
room for further regulation in nonpublic environments like a polling place.



But like Rick P., I see parallels to the campaign finance jurisprudence,
even if this isn’t *Buckley* redux.  There’s no distinction here based on
magic words – the Court made very clear that a state could, for example,
prevent (as California does) displays with the name or likeness or logo of
a candidate or ballot measure, akin to the electioneering communication
lines in the finance world.  But though it’s possible to read the Court’s
opinion as objecting only to the vagueness and indeterminacy of the
Minnesota statute, the Chief’s examples – all hypothetical questions --
also seem to convey solicitude for public displays of opinion about public
issues or groups, whether or not the prohibition on such public displays is
clear and defined.  And in that sense, it’s still a bit of a case about the
distinction between “election stuff” and “issue stuff” that’s been giving
the Court fits since at least 1976 … even if the line drawn isn’t the
*Buckley* line.  And it seems to me that makes for an interesting
discussion both for legislators and for students.



Just as a test: it’s obvious that Minnesota could now say “no apparel at
the polls with a candidate’s name.”  But could Minnesota ban the wearing,
inside the polls, of a “Make America Great Again” hat?  (What if it weren’t
red, or weren’t a hat?)  Or a T-shirt that said “Hope”?  Or “I alone can
fix it?”  How about a T-shirt that said “Remember [Gorsuch]/[Garland]?”
And the part that’s really going to be intriguing: how would you *write*
that statute, as a legislator, after today’s decision?  Is Texas’s law –
addressing “a badge, insignia, emblem, or

other similar communicative device *relating* to a candidate, measure, or
political party appearing on the ballot, or to the conduct of the election”
– really sufficiently discernible for the Court, if it addresses
badges/insignias/etc beyond those trademarked by a campaign?



Justin



*From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
Behalf Of *Rick Hasen
*Sent:* Thursday, June 14, 2018 9:39 AM
*To:* Election Law Listserv <law-election at uci.edu>
*Subject:* [EL] ELB News and Commentary 6/14/18


“The Supreme Court Made a Good Decision on Election Law; In praise of the
ruling in Minnesota Voters Alliance v. Mansky.”
<http://electionlawblog.org/?p=99544>

Posted on June 14, 2018 9:35 am <http://electionlawblog.org/?p=99544> by *Rick
Hasen* <http://electionlawblog.org/?author=3>

I have written this piece
<https://slate.com/news-and-politics/2018/06/in-minnesota-voters-alliance-v-mansky-the-supreme-court-makes-a-good-decision-on-election-law.html>
for
Slate. It begins:

*Not every Supreme Court decision about elections is a disaster, and the
ruling in Minnesota Voters Alliance v. Mansky
<https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf> striking
down Minnesota’s very broad ban on wearing political apparel in polling
places is a pretty good one. Although the court struck down a law I thought
it should have upheld
<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?wpsrc=sh_all_dt_tw_ru>,
the opinion shows a more realistic and functional understanding of the
political process than the court has shown in campaign finance cases. It
gives states ample room to assure that people can vote at polling places
free of political pressure and intimidation….*

*First, the court made it clear that a state “may prohibit messages
intended to mislead voters about voting requirements and procedures.” So
Minnesota likely had the power to ban the “Please I.D. Me” buttons, not
because they are political, but because they are misleading. In an era of
campaign dirty tricks, “fake news,” and misinformation, this is a welcome
recognition that states have broad powers to stop false and misleading
speech <https://scholarship.law.umt.edu/mlr/vol74/iss1/4/> about when and
how to vote.*

*Second, when the court described permissible state laws to ban
electioneering in polling places, it did not endorse the narrow,
formalistic view of what counts as election speech that it has adopted in
the campaign finance area. There, the court on First Amendment grounds has
said that limits on election spending (say, barring foreign nationals from
spending in our elections
<https://www.justsecurity.org/57624/supreme-courts-understanding-amendment-thwart-laws-aimed-limiting-foreign-influence-u-s-elections/>)
are permissible only when they prohibit express advocacy (like “Vote for
Trump”) or its functional equivalent
<https://www.oyez.org/cases/2006/06-969>.*

*In Mansky, the court endorsed a much broader and more functional approach.
As an example of a permissible law, it pointed to Texas Elections Code
section 61.010
<https://www.lawserver.com/law/state/texas/tx-codes/texas_election_code_61-010>,
which bans at the polling place and within 100 feet of it “a badge,
insignia, emblem, or other similar communicative device relating to a
candidate, measure, or political party appearing on the ballot, or to the
conduct of the election.” That “relating to” language is much broader than
the narrow tests the court has used in campaign finance cases, and it
recognizes the reality that campaign-related speech often does not use
“magic words” of advocacy.*
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