Here are a few quick running thoughts from today's oral argument in Minnesota Voters Alliance v. Mansky. This post will be updated. The transcript PDF is here. (As an I aside, I wrote an article about the concept of "ballot speech," or the contents of the ballot itself as communicating expressive and informative content for voters, in this piece in the Arizona Law Review. Mansky involves a related question on restrictions on speech in the polling place.)
Express advocacy? Justice Kagan early in the argument, along with Justice Kennedy, wondered about more narrowly-drawn rules on matters like express advocacy for or against a particular candidate rather than broader political messages. That might be an attractive option for a Court looking to fashion a rule that offers the state some flexibility to regulate in the future.
Content and overbreadth: Justice Alito later pressed on this issue to wonder if candidate-based content might be somehow a separate matter properly subject to regulation. Justice Kagan in particular was concerned about how a proper overbreadth challenge might look. Justice Gorsuch later in the argument wondered about Minnesota acting as "outlier" when examining whether Minnesota had a compelling interest to justify the potential (as he said, "often undocumented") chilling effect.
Scope of intimidation: Chief Justice Roberts wondered about this notion of "decorum" in the polling place, emphasizing that freedom from intimidation is a distinct issue. At the same time, he wondered, "maybe bitter, sharp, political campaign going on, and maybe, just before you cast your vote, you should be able to have a time for some quiet reflection or to do that important civic obligation in peace and quiet without being bombarded by another campaign display." Later Justice Kennedy wondered about the difficulty of enforcing decorum if it largely turned on individualized determinations from polling officials.
Late in the oral argument, Justice Kagan wondered about how to evaluate "decorum." The courtroom was a good place for decorum, she thought. But she wondered why the polling place sounded "a little bit church-like," when it came at the end of "often a rowdy political process."
First Amendment issues at all? Justice Kennedy wondered, "Why should there be speech inside the election booth at all, or inside the what you call the election room?" From a justice usually known for his robust First Amendment views, this struck me as notable. Justice Ginsburg jump in to join the concern.
Facial challenge: One related question to the overbreadth concern was the scope of the challenge, as a facial challenge as opposed to as-applied. The Court's doctrine in this area has not been the most coherent, so I won't dig into issues now. But Chief Justice Roberts wondered about the "tiniest little logo" as being subject to the law and somehow affecting "decorum" as potentially a problem.
Arbitrary enforcement and defining political matters: Justice Alito wondered about the risk of arbitrary enforcement and the difficulty of election officials line-drawing in the application of this statute. In a series of hypotheticals testing this limit, Justice Alito got the state's attorney to say that a T-shirt with "the text of the Second Amendment' Could be viewed as political, but notthe text of the First Amendment. (Oral arg. transcript at 40.) It highlighted a very basic problem with a statute that had as broad a scope as Minnesota suggested--and perhaps suggests that the Court would require something narrower.
Justice Alito later worried about partisan election judges determining the political connotations of materials. The state's response? This is not terrible unusual, given that election judges make all kinds of determinations.
Burson: The Court showed no interest in overruling Burson. (But such things may remain unsaid....) Late in the oral argument, Justice Gorsuch seemed satisfied that Burson would be the narrower case of "campaign speech," compared to Minnesota's law of "additional political speech." But, returning to the definitional concerns of the Court noted earlier, that may not be satisfactory.
Compelling interests: Near the end, Chief Justice Roberts emphasized that it did not appear that the state's interest were "terribly strong." Only time will tell....