Does the Express Advocacy/Issue Advocacy Line Retain Any Constitutional Signficance After McConnell?

I would have thought the answer is no, but see Anderson v. Spear from the Sixth Circuit:

The question of whether Kentucky may regulate issue advocacy proximate to the polls raises an issue of broad constitutional import. While Mr. Anderson’s particular speech–i.e., providing instructions on how to vote for write-in candidates–at first glance looks like a relatively narrow class of speech, his legal challenge to a definition of electioneering which includes issue advocacy raises constitutional concerns about a broad class of speech. The Kentucky State Board of Elections fails to explain why providing instructions on how to cast a write-in vote would constitute “electioneering” for the purposes of the statute. Thus, as best we can tell, the Kentucky law as interpreted by the Board of Elections would forbid an individual to remind voters to fill in the ovals completely on optical scan ballots. Given the Board’s decision, it would also appear that individuals would be prohibited from displaying signs or distributing leaflets which fall into core issue advocacy: that is, promoting issues rather than specific candidates. If “electioneering” includes Mr. Anderson’s instructing voters on how to cast a write-in vote, does it also include, for example, parents urging voters to “support our schools”? All issue-related speech is chilled by the Board’s interpretation of “electioneering.” However, the State has failed to provide evidence to support a finding either that a regulation so broad is necessary to prevent corruption and voter intimidation, or that the regulation does not significantly impinge on the rights protected by the First Amendment.

Thanks to How Appealing for the pointer.

Posted by Rick Hasen at January 16, 2004 07:20 AM