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?
JUSTICE ALITO: Yeah.
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.
CHIEF JUSTICE ROBERTS: It would be?
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.