“The Supreme Court Made a Good Decision on Election Law; In praise of the ruling in Minnesota Voters Alliance v. Mansky.”

I have written this piece for Slate. It begins:

Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky 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, 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 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) are permissible only when they prohibit express advocacy (like “Vote for Trump”) or its functional equivalent.

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, 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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