Monthly Archives: February 2018

Supreme Court Justices Grapple with Difficult Issues at Oral Argument in Minnesota Voters Alliance v. Mansky, the Political Apparel Case

I have just had the chance to read the transcript in Minnesota Voters Alliance v. Mansky. As I indicated in my Slate piece yesterday, the case is a difficult one, not because polling places should be places for political expression (I think Justice Scalia is right that they should not be) but because the broad ban on political words and insignias under Minnesota law is very broad, and it leaves room for arbitrary line drawing and discriminatory choices by local election officials. There seem to be a majority of Justices (including Justice Kennedy and maybe the Chief Justice) who believe it is constitutional to make polling places campaign free zones, but maybe not a majority comfortable with the administrative discretion in this case.

This exchange between Justice Alito and the state’s lawyer was particularly tough for the state:

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.

JUSTICE ALITO: How about a shirt that says “Parkland Strong”?

MR. ROGAN: No, that would — that would be — that would be allowed. I think -­ I think, Your Honor -­

JUSTICE ALITO: Even though gun control would very likely be an issue? MR. ROGAN: To the extent -­

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the — the -­ the line that we’re drawing is one that is -­ is related to electoral choices in a -­

JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?

MR. ROGAN: The — the Parkland?


MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -­

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, inMinnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -­

JUSTICE ALITO: How about a shirt with the text of the Second Amendment? MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be -­ JUSTICE ALITO: How about the First Amendment? (Laughter.)

MR. ROGAN: No, Your Honor, I don’t -­ I don’t think the First Amendment. And, Your Honor, I -­

CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?

MR. ROGAN: It would be allowed.


But the challengers’ lawyer had a hard time too, because he didn’t really believe the state could even ban express advocacy in the polling place (like “Clinton 2016”) and he couldn’t then really defend his overbreadth argument:

JUSTICE KENNEDY: Well, if — if the Court is concerned about preserving the dignity and the decorum and the solemnity of the voting process, and the statute is as difficult as you say, isn’t that an argument for allowing good faith determination on a case-by-case basis by the polling officials?

MR. BREEMER: No, I wouldn’t say that, Your Honor, because in the meantime free speech would be chilled. All — all the conventional political expression in association that no reasonable person would see as a threat to the polling place would be chilled in the process, as it’s being chilled right now and will continue to be chilled unless this statute is invalidated. So I agree that it’s a possible line to draw at advocacy material, but, in any event, the statute would fail because it still sweeps in the rest of the conventional type -­

JUSTICE KAGAN: If — if that were where we drew the line, I mean, what — what would be encompassed in advocacy material? Would it be only things that named a candidate’s name?

MR. BREEMER: Your Honor, I think it would be anything that said for or against a candidate or an issue directly on the ballot.

JUSTICE KAGAN: How about if it said “Resist”?

MR. BREEMER: I think that would be constitutionally permitted, and should be, and — and generalized slogans -­

JUSTICE KAGAN: “Make America Great Again”?

MR. BREEMER: That type of slogan, too, I think that should be constitutionally permissible. Any — call it generalized -­ otherwise, you start to bleed over and pretty soon you have the problem that we have here of discretionary enforcement and you’re swallowing all this other legitimate speech when you’re trying to just stop that type of advocacy material.

JUSTICE KENNEDY: Why should there be speech inside the election booth at all, or inside the what you call the election room? Let’s — let’s say that it’s a small room. Why should there be any speech there at all? You’re there — you’re there to vote.

Share this:

In Case with Potential National Implications, Federal Court Strikes Political Party Ballot Qualifications Requirements in South Dakota

Richard Winger:

The opinion says that the March 27 petition deadline is too early, especially given winter weather in South Dakota. It also says the 2.5% (of the last gubernatorial vote) is also too high, given the historical record of few minor parties qualifying. The Reform Party did not qualify in South Dakota in 1996; the Green Party has never qualified; the Natural Law Party never qualified; the New Alliance Party never qualified.

The state defended the March 27 deadline by saying that deadline is necessary to give new parties their own primary in June. But the opinion says there is no state interest in requiring new or small parties to nominate by primary. It says, “In our two-party dominant system, the Republican and Democratic Parties often have more than one candidate for each political office and thus need to run in a primary election where the registered voters of each party must choose their candidate. But Defendants have not explained why this rationale should apply to new political parties.”

In our very close elections, whether or not third parties can get on the ballot and compete in presidential (and other) election contests can make a real difference, even if these parties usually have little chance of winning.

You can find the court’s opinion in Libertarian Party of South Dakota v. Krebs at this link.

Share this:

“White House Has Given No Orders to Counter Russian Meddling, N.S.A. Chief Says”


Faced with unrelenting interference in its election systems, the United States has not forced Russia to pay enough of a price to persuade President Vladimir V. Putin to stop meddling, a senior American intelligence official said on Tuesday.

Adm. Michael S. Rogers, the departing head of the National Security Agency and the military’s Cyber Command, said that he was using the authorities he had to combat the Russian attacks. But under questioning during testimony before the Senate Armed Services Committee, he acknowledged that the White House had not asked his agencies — the main American spy and defense arms charged with conducting cyberoperations — to find ways to counter Moscow, or granted them new authorities to do so.

“President Putin has clearly come to the conclusion that there’s little price to pay and that therefore ‘I can continue this activity,’” said Admiral Rogers, who is set to retire in April. “Clearly what we have done hasn’t been enough.”

Share this:

The Strange Dispute Between NBC News and DHS and the Elections Community Over Election Hacking

A few weeks ago, NBC News issued a story about election hacking which it presented as an exclusive. It drew pushback from DHS, and from many in the elections community, saying that the information was not new, and some of it was incorrect.

Yesterday NBC followed up with another story, this one giving much more specific details:

The U.S. intelligence community developed substantial evidence that state websites or voter registration systems in seven states were compromised by Russian-backed covert operatives prior to the 2016 election — but never told the states involved, according to multiple U.S. officials.

This one prompted an even stronger reaction from DHS, as the start of this thread shows:

And noted election expert David Becker wrote:


It is hard to know what is going on here. My experience is that NBC News is one of the best in the business, and they take very seriously the need to get things right. But the reactions to this line of investigation is extraordinary, not just from DHS, but from other election officials and election observers.

Share this:

“Republican lawmakers return to court on Pennsylvania redistricting”

Amy Howe:

Less than three weeks ago, the Supreme Court declined to get involved in a partisan-gerrymandering challenge to Pennsylvania’s federal congressional maps. Today that state’s Republican lawmakers returned to the Supreme Court, asking the justices to block what they characterized as the Pennsylvania Supreme Court’s “intentional seizure of the redistricting process.”…The legislators’ request will go to Justice Samuel Alito, who handles emergency appeals from the geographic area that includes Pennsylvania. Alito can rule on the application himself or refer it to the full court. When the legislators came to the justices the first time, Alito denied the application himself – which, although there is no way to be sure, suggests that he saw little merit in the request. The legislators are clearly hoping for a better result this time.


Share this:

“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.

Share this:

On 4-3 Vote, Pennsylvania Supreme Court Denies Stay in Congressional Redistricting Case, Moving Question to U.S. Supreme Court’s Justice Alito

Here is the order of the PA Supreme Court.

There had been a delay in Justice Alito getting the petition, and apparently it was the wait for this formality to occur.  (The PA legislative leaders issued incorrect information that the press release had already been filed.)

Here’s my handicapping of its chances: a big long shot.

Share this:

In Blow to Fair Elections, Nonpartisanship and Professionalism, Mike Haas Out as Election Administrator in Wisconsin


The head of the Wisconsin Election Commission said he would step down from his leadership role and eventually leave the agency because of opposition from Republican lawmakers.

Administrator Mike Haas announced the news in a resignation letter this week to the commission’s bipartisan board.

Last month GOP state senators denied the confirmations for Haas and his counterpart at the Wisconsin Ethics Commission. The rejection of their confirmation stemmed from a controversial investigation of Gov. Scott Walker and other Republicans by the Government Accountability Board, the agency that preceded both commissions.

Haas said he had little to do with that investigation and had achieved a record of success since GOP lawmakers disbanded the GAB and created his agency.

“Rather than celebrating that success and taking credit for it, some have focused on settling scores with imaginary ghosts of the Government Accountability Board. My appointment was a casualty of that obsession,” Haas wrote in his letter.

Another consummate professional and straight shooter being forced out by Republican leadership to make way for political hacks.

Any election jurisdiction in the country would be lucky to have Mike working for them.

Share this: