“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.”

I have written this piece for Slate. It begins:

On Wednesday, the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a “Make America Great Again” cap or a “pussyhat” 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 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 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 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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