I have written this piece for Slate. It begins:

Here’s something to scramble your brain: A progressive super PAC in Pennsylvania put out an advertisement trying to suppress mail-in voting by MAGA Republicans, and the Trump campaign responded by saying that the super PAC was violating the same law that Trump has been charged with violating in his federal election interference case. To boot, Trump’s lawyers said in their letter that the super PAC’s actions were just like those of Douglass Mackey, a Trump supporter that the Department of Justice successfully prosecuted for falsely telling Black supporters of Hillary Clinton in 2016 that they could vote for her by text. In the end, the super PAC’s actions appear despicable, but it is much more questionable whether the advertisement crossed a legal line.

The 30-second advertisement in question opens with words onscreen: “MAGA PATRIOTS: LISTEN TO OUR PRESIDENT.” It then turns to a series of statements in which Donald Trump disparages the safety and security of voting by mail, claiming fraud and corruption. It ends with the words: “Stand strong with PRESIDENT TRUMP AGAINST MAIL-IN VOTING.” A disclaimer on the bottom explains that the ad was paid for by “Pennsylvania Values,” and was not authorized by any candidate or committee…

The advertisement sends a terrible message, and the super PAC’s tactics deserve condemnation. All eligible voters should be encouraged to vote in whatever way is most convenient for them, including mail-in voting. This advertisement is only going to fuel more distrust of voting by mail among Trump supporters by reminding them of his earlier statements, and ramp up further negative polarization between the parties by highlighting the voting wars and engaging in a dirty trick: The message is not coming from “MAGA Patriots,” but from partisans on the left….

Mackey was convicted under Section 241 and his case is currently on appeal to the 2^nd Circuit, where he is arguing, among other things, that his conviction violates the First Amendment because it squelches too much free speech. I filed an amicus brief along with the Protect Democracy Project and the Yale Media Freedom and Information Access Clinic arguing that so long as Section 241 is read to apply in speech and voting cases only to lies about when, where, or how people vote, the law does not violate the First Amendment.

If that reading is right, the new super PAC ad may not violate Section 241. The ad never lies to voters about when, where, or how to vote. It instead uses Trump’s own words expressing Trump’s distrust of mail-in voting to imply that Trump still does not want his supporters to vote by mail (this implication may be false, but who knows with Trump, who recently called mail-in voting “treacherous”). It also implies that the speech is coming from MAGA supporters. The ad doesn’t quite say the ad is paid for by Trump forces, though it does refer to Trump as “OUR PRESIDENT.” It includes false statements made by Trump about ballots being found in creeks. Maybe that should count as a super PAC lie about how people vote? Perhaps this ad is artfully crafted to potentially just stay on the line of legality under the test we think works in the Mackey case. The super PAC will need some good lawyers.