Election law Professor Rick Hasen says in his ElectionLawBlog that the June 24 opinion from the U.S. Supreme Court in Doe v Reed will help ballot access lawsuits. He writes, “It seems to me that the majority opinion silently overrules earlier cases, Burdick v Takushi and Timmons v Twin Cities Area New Party, rejecting the idea that voting is a form of First Amendment protective activity. The Court in those cases said that ballots are not fora for political expression. I expect various plaintiffs in ballot access cases and elsewhere will try to use the Doe discussion of voting and related activities as protected by the First Amendment to argue for increased access to the ballot.”
Burdick v Takushi, a 1992 decision of the U.S. Supreme Court, upheld Hawaii’s practice of not providing any space on ballots for write-in votes. Burdick v Takushi says on page 438, “Attributing to elections a more generalized expressive function would undermine the ability of States to operate elections fairly and efficiently.” Also, on page 441, “The objection to the specific ban on write-in voting amounts to nothing more than the insistence that the State record, count, and publish individual protests against the election system or the choices presented on the ballot through the efforts of those who actively participate in the system. There are other means available, however, to voice such generalized dissension from the electoral process.”
Timmons v Twin Cities Area New Party, on page 363, says, “Ballots serve primarily to elect candidates, not as fora for political expression.”
By contrast, today’s Doe v Reed decision says about petitions, on page six, “Respondents (the state) counter that signing a petition is a legally operative legislative act and therefore does not involve any significant expressive element. It is true that signing a referendum petition may ultimately have the legal consequence of requiring the secretary of state to place the referendum on the ballot. But we do not see how adding such legal effect to an expressive activity somehow deprives that activity of its expressive component, taking it outside the scope of the First Amendment…Petition signing remains expressive even when it has legal effect.”
If voting, and signing a petition, are both expressive activity, then they are protected by the free speech part of the First Amendment, and have substantial protection.
Strangely enough, Justice Antonin Scalia’s concurrence says, “We have acknowledged the existence of a First Amendment interest in voting” and then cites to Burdick v Takushi, but he doesn’t provide a page number within Burdick v Takushi to support that conclusion. I have just re-read Burdick v Takushi and I don’t see anything in Burdick v Takushi that supports the idea that Burdick v Takushi agrees that voting is protected by the First Amendment. Maybe another reader can find something.
