[EL] Mansky and teaching tools

Thu Jun 14 11:44:04 PDT 2018

I’d really like to see a challenge to that kind of law—regardless of which state it comes from (simultaneous attacks on both Texas and California?). I have a hard time believing that a Court so solicitous of the First Amendment would uphold a statute that banned a voter in a t-shirt with an elephant/donkey on it, let alone MAGA/Hope, let alone NRA/ACLU. I think all such line-drawing ultimately collapses until you just have passive/active (meaning Burson is fine)—or of course disruptive/harassing (which is covered by other laws).

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From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Justin Levitt
Sent: Thursday, June 14, 2018 2:31 PM
To: Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: [EL] Mansky and teaching tools

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<mailto: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<mailto: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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