May a State Ban Electioneering on Election Day?

The answer is pretty clearly “no,” given the First Amendment, and Emineth v. Jaeger (D.N.D. Oct. 29, 2012) has struck down such a North Dakota statute:

Any person asking, soliciting, or in any manner trying to induce or persuade, any voter on an election day to vote or refrain from voting for any candidate or the candidates or ticket of any political party or organization, or any measure submitted to the people, is guilty of an infraction. The display upon motor vehicles of adhesive signs which are not readily removable and which promote the candidacy of any individual, any political party, or a vote upon any measure, and political advertisements promoting the candidacy of any individual, political party, or a vote upon any measure which are displayed on fixed permanent billboards, may not, however, be deemed a violation of this section.

The statute — which by its terms applies to flyers, yard sign, speeches, newspaper editorials, and a vast range of other speech — has apparently been largely or entirely unenforced, but the North Dakota Solicitor General nonetheless defended the law, arguing it was (1) content-neutral, (2) served the interests in preventing “election day intimidation tactics,” preventing “dissemination of false or misleading information on election day” (when there’s little time to respond), and “establishing a definite close to electioneering” so that “all voters have the same information to make their decisions, whether they vote at 9 a.m. or 4 p.m.,” (3) and was “narrowly tailored” to those interests.

Not so, the court correctly held. The law is content-based, “since it singles out election-related expression for prohibition.” (See, e.g., Burson v. Freeman (1992), which made clear that such laws are content-based, though a plurality concluded that the particular content-based law passed strict scrutiny because it was limited to speech very near a polling place.) And the law cannot pass the strict scrutiny required for such laws, for the same reasons that a ban on newspaper endorsements on election day was held unconstitutional in Mills v. Alabama (1966):

“[The] argument [that a ban on election day electioneering is justified by the desire to prevent false accusations at a time when it's too late to answer them], even if it were relevant to the constitutionality of the law, has a fatal flaw. The state statute leaves people free to hurl their campaign charges up to the last minute of the day before election. The law … then goes on to make it a crime to answer those ‘last-minute’ charges on election day, the only time they can be effectively answered. Because the law prevents any adequate reply to these charges, it is wholly ineffective in protecting the electorate ‘from confusive last-minute charges and countercharges.’”

“Since Alabama’s prohibition on editorials did not survive constitutional scrutiny, North Dakota’s far broader ban on electioneering activities cannot survive the more intense ‘strict scrutiny’ required in this challenge.”