//  6/14/18  //  Commentary

By Adav NotiSenior Director, Trial Litigation & Chief of Staff at Campaign Legal Center

Today’s Supreme Court decision in Minnesota Voters Alliance v. Mansky struck down a Minnesota law for imposing “haphazard” restrictions on political messaging in polling places. At the same time, the Court reaffirmed important principles that allow states to promote the democratic process. While we at the Campaign Legal Center filed an amicus brief in support of the state and disagreed with case’s ultimate outcome, we were pleased with what the opinion did and did not say.

First, Chief Justice Roberts’s opinion for the Court reaffirmed all of the important state interests in protecting voters and the voting process that the Court had recognized in Burson v. Freeman. His opinion makes clear that states have a strong interest in prohibiting activity or symbols that sow chaos at the polls or intimidate voters, finding “no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as ‘an island of calm in which voters can peacefully contemplate their choices.’” This is a particularly important insight given the facts that led to this case: petitioners wore “Please I.D. Me” buttons with the express goal of encouraging those without I.D. to leave the voting line. The Court did “not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”

The Court went further in recognizing the governmental interest in fostering a sense of unity among Americans. As the Campaign Legal Center noted in its brief, Election Day serves as an important inflection point at which the rancor of divisive campaigns is put aside and Americans of all political persuasions stand literally side-by-side to choose their government. The Court recognized as much, writing that “[t]he State may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most.” This interest goes further than what the Burson Court had considered, and the Court’s recognition of this interest is momentous at a time at which Americans are particularly divided and when the health of our democracy increasingly depends upon our ability to transcend our partisan differences.

Perhaps most important is what the Court did not say. As Professor Rick Hasen highlights, the Court avoided the pitfall of expanding its conceptually unsound campaign finance jurisprudence into a new area. That is welcome news. Beginning with its decision in Buckley v. Valeo, the Court has expended a great deal of effort distinguishing among types of campaign advocacy. The “magic words” test (thankfully since discarded), the express advocacy test, the reasonable interpretation test – all of these Court-generated standards have perniciously circumscribed and undermined the anticorruption laws that govern our election campaigns. As a result, significant portions of campaign finance law rest on uneasy formalism rather than a careful, functional approach. Thankfully, in this case, the Court favorably cited laws that apply a functional scalpel rather than a formalist buzzsaw. In so doing, it helped ensure that the regulation of polling-place political messaging can appropriately match the interests it serves, including all of the Burson-recognized interests and more. While the case did not turn out as we had hoped, its reasoning in these respects is commendable. The Court would do well to adopt a similar approach in the campaign finance context.

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