Professor Rick Hasen, Election Law Expert, Says Doe v Reed Opinion Will Help Ballot Access Lawsuits

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.


Comments

Professor Rick Hasen, Election Law Expert, Says Doe v Reed Opinion Will Help Ballot Access Lawsuits — 3 Comments

  1. Burdick v Takushi start of Section III.

    Indeed, the foregoing leads us to conclude that, when a State’s ballot access laws pass constitutional muster as imposing only reasonable burdens on First and Fourteenth Amendment rights.

    The Burdick decision did not express particular concern about random political expression (eg a protest vote for ‘Donald Duck’) and determined that a ban on write-in voting did not present a significant burden on a 1st Amendment Right of Political Association, since voters could easily band to gather to qualify a candidate for the ballot.

    “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.””

    This says that “to petition the Government for a redress of grievances” is a protected First Amendment right — even if, as in the case in Washington, where the petition is part of the formal political process. But it doesn’t necessarily follow that there is a similar relationship with regard to voting in elections, and non-formal political expression.

  2. This is the New Age of party hack Supremes.

    Each opinion is an ad hoc piece of JUNK — in conflict with all sorts of earlier JUNK opinions.

    Result – keeps the law reviews, law school profs, lower court judges and lawyers in a growing state of total chaos.
    —-
    When did ANY petitions for candidates and/or issues come along ???

    The party hack Supremes love the adjective *reasonable* in all sorts of their ad hoc JUNK irrational opinions — making all sorts of alleged *constitutional rights* subject to all sorts of party hack laws and regulations that destroy such *rights*.

    See the use of *reasonable* in the Doe opinion connected with possible/ *probable* death threats and murders regarding unpopular issue petitions.

    Opponents – sign the XYZ petition and you will be killed !!!

    How many *reasonable* folks will sign the XYZ petition ???

    Even the originator of the XYZ petition ???

    P.R. and App.V. NOW — including the election of the Supremes — to get rid of the more senile MORONS on the court.

  3. IN THE STATE OF VERMONT, AN INDEPENDENT CANDIDATE
    MAY CHOSE DESCRIPTIVE WORDS TO APPEAR ON THE BALLOT,
    RATHER THAN “INDEPENDENT”,
    AND SO THIS IS A FORM OF
    VOTER REFERENDUM.
    From: crisericson@aceweb.com [crisericson@aceweb.com]
    Sent: 6/25/2010 8:57:15 AM
    To: jboppjr@aol.com [jboppjr@aol.com]; kdewolfe@sec.state.vt.us [kdewolfe@sec.state.vt.us]; kHamilton@perkinscoie.com [kHamilton@perkinscoie.com]; lrw@witherspoonkelley.com [lrw@witherspoonkelley.com]; judyg@atg.wa.gov [judyg@atg.wa.gov]; billc@atg.wa.gov [billc@atg.wa.gov]
    Cc: jonathan.albano@bingham.com [jonathan.albano@bingham.com]
    Subject: Marijuana Party on Ballot needs attorney
    To:
    Attorney for Petitioners
    Docket # 09-559
    Supreme Court of the U.S.
    Doe v. Reed
    James Bopp, Jr.
    and
    Other Party name, MA Gay & Lesbian Political Caucus
    Jonathan M. Albano

    DEAR SIRS:
    Hi! My name is Cris Ericson and I am on the official election
    ballot in the State of Vermont for two offices:
    Cris Ericson, UNITED STATES MARIJUANA PARTY,
    for Governor of VT 2010
    and
    Cris Ericson, UNITED STATES MARIJUANA PARTY for
    UNITED STATES SENATOR FOR VERMONT 2010.
    MY BALLOT ACCESS PETITIONS FOR NOMINATION
    HAVE BEEN CERTIFIED
    MAY 17, 2010.
    I THOUGHT THE GOOD VERMONT VOTERS WHO SIGNED
    MY PETITIONS
    HAD A RIGHT TO PRIVACY.

    I SIGNED MY PETITIONS ALSO.

    WILL SECRETARY OF STATE, DEBORAH MARKOWITZ,
    WHO IS ALSO RUNNING FOR GOVERNOR
    (CONFLICT OF INTEREST?)
    SELL MY PETITIONS TO THE F.B.I., D.E.A., ETC.
    AND NOT HERS?

    WILL SECRETARY OF STATE, DEBORAH MARKOWITZ,
    WHO IS ALSO RUNNING FOR GOVERNOR
    (CONFLICT OF INTEREST?)
    SELL COPIES OF MY PETITIONS TO CORPORATIONS
    AND NON-PROFITS AND INDIVIDUALS,
    BUT NOT HER OWN?

    THIS RAPE OF PRIVACY
    MAY KEEP ME FROM EVER GETTING
    THE UNITED STATES MARIJUANA PARTY ON THE BALLOT
    EVER AGAIN!

    CITIZENS WILL BE TOO AFRAID TO SIGN MY PETITIONS!

    I NEED AN ATTORNEY NOW TO FILE WHAT EVER IT IS
    CALLED TO GET AN EXCEPTION TO THE LAW FOR ME
    AND VERMONT VOTERS!

    I NEED A PRO BONO ATTORNEY.

    I TOTALLY QUALIFY FOR AN INFORMA PAUPERIS FORM,
    BUT I DO NOT KNOW THE PROCEDURE IN THIS INSTANCE,
    AND READ ON THE NEWS THAT ANY EXCEPTIONS MUST
    BE FILED
    IMMEDIATELY!

    PLEASE CONSIDER TAKING MY CASE PRO BONO OR
    HELPING ME TO FIND AN ATTORNEY.

    I HAVE DIAL UP INTERNET.

    PLEASE REPLY OVERNIGHT EXPRESS MAIL,
    CERTIFIED RETURN RECEIPT
    WITH ATTORNEY CONSENT FORM.

    CRIS ERICSON http://USMJP.COM
    Official campaign website: http://crisericson.com

    Vermont Secretary of State http://www.sec.state.vt.us
    click on Elections, click on Independent candidates
    for the General Election.

    Putting the “United States Marijuana party”
    on the ballot
    is the same as a VOTER REFERENDUM,
    because under
    Vermont law,
    an independent candidate may chose
    descriptive words,
    and have the descriptive words
    appear on the official election ballot rather than
    independent.

    cc: Kathy DeWolfe, attorney for Secretary of State
    James Bopp, Jr. Attorney for Petitioners
    William B. Collins Attorneys for Respondents
    Kevin J. Hamilton
    Leslie R. Weatherhead
    Robert M. McKenna
    Other party name: Massachusetts Gay & Lesbian Political Caucus
    Jonathan M. Albano

    SINCERELY,
    CRIS ERICSON
    879 CHURCH STREET
    CHESTER, VERMONT 05143-9375
    (802)875-4038
    crisericson@aceweb.com

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