Free speech conflicts with the right to vote. So asserted the Supreme Court on Thursday in its 7-2 ruling in Minnesota Voters Alliance v. Mansky.
The case concerned a Minnesota law that created a 100 foot boundary around polling locations. Within that boundary, one could not display campaign material, solicit votes, distribute political items, or wear any kind of “political apparel.” The Minnesota Voter Alliance sued, saying the law violated their free speech.
The Supreme Court sided with the MVA in outcome. But they won a narrow ruling, largely applicable only to this case. Chief Justice John Roberts argued that the law lacked “objective, workable standards” for determining what constituted political apparel. The law thereby left too much room for capricious and partisan application. Yet the Supreme Court refused to declare laws like Minnesota’s inherently unconstitutional.
Here’s how the Supreme Court framed the conflict. Quoting precedent, Roberts said the justices faced “a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote.”
The Supreme Court came to the right conclusion, but the justices did themselves a disservice in how they framed their argument. Free speech and suffrage did not conflict in this case. Instead, the two cooperated to fulfill a broader purpose: successful popular government.
Popular government rests on the people’s consent; state institutions must act in accord with the wishes of the governed. But how do the people express their will?
Voting and free speech cooperate to answer this question. People vote as a definitive measurement of their wishes. They thereby choose officeholders and express policy preferences. That’s how people speak through voting. In fact, one could argue that this form of speech is the most powerful.
Still, people do not only speak through voting. They speak through conversations, writing, campaign rallies, and myriad other forms of communication. This communication, in turn, aids the act of suffrage. Consider why we speak on political matters. First, we seek to inform. We wish to know and for others to know as well. Second, we want to persuade. We hope to convince fellow citizens concerning the rightness of our beliefs. These two goals are worthwhile in themselves. But they also serve a further purpose: affecting voting. We inform and persuade in the hope that others will vote as we think best.
This relationship both stems from and contributes to popular government. It stems from why consent is necessary in the first place. The reason is freedom. Only a free people give consent. Voting is a free act of consent, because no one, neither government nor anyone else, rightly can coerce someone’s vote. This truth undergirds free speech. What would be the point in trying to inform and persuade if the people’s opinion did not matter?
Moreover, the relationship between speech and voting contributes to better popular government. A government of consent needs voters who act responsibly, not just freely. Free speech helps to address that need. It allows for citizens to inform and sway each other in ways that hopefully better the choice each person makes in the voting booth.
These purposes and connections help to explain why the Supreme Court could affirm in principle Minnesota’s law. Speaking and voting do cooperate to aid proper self-government. But here, the Supreme Court recognized that each has its proper place: A time should come when informing and persuading must conclude, a time and place where to continue such actions may actually hurt rather than help voters choose in a free and responsible manner. That time and place, the Supreme Court affirmed, are polling locations on Election Day.
Drawing on history and precedent, the Supreme Court noted how, in the 19th century, continued campaigning within polling locations often contributed to “problems of fraud, voter intimidation, confusion, and general disorder.” Speech in that context undermined voting and thereby the health of popular government. The justices thus viewed reasonable restrictions on political action in or near the voting booth as an attempt to “protect the right to vote.” It allowed a person the space to act freely and reasonably on the information and persuasion which occurred up to that point.
In the end, the Supreme Court decided the case correctly. But in framing the arguments as it did, Roberts’ opinion did not fully show why they were right. Far from a tension, free speech and the right to vote interact to foster informed and responsible citizenship. In so doing, the two rights together support the core of popular government: a government of, by, and for the people.
Adam Carrington is assistant professor of politics at Hillsdale College.
