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1991-1992 Preview U.S. Sup. Ct. Cas. 324 (1991-1992)
Do Voters Have a Constitutional Right to Cast Write-in Votes (91-535)

handle is hein.journals/prvw18 and id is 342 raw text is: VOTING RIGHTS Do voters have a constitutional right to cast write-in votes? by Frank R. Parker Alan B. Burdick V. Morris Takushi, et al. (Docket No. 91-535) Argument Date: March 24, 1992 This case is the first federal constitutional challenge to reach the Supreme Court contesting a state prohibition on write-in voting. The Supreme Court has been asked to decide whether there is a constitutional right to cast write-in votes, and if so, whether that right overrides the state interests Hawaii has asserted to justify the prohibition. ISSUE Do the First and Fourteenth Amendments to the U.S. Constitution prohibit states from totally barring voters from casting write-in votes for candidates who have not followed state procedures for having their names printed on the ballot? FACTS When he lived in New Jersey, Alan Burdick, a lawyer, was able to cast write-in votes for candidates whose names were not on the ballot. However, when he moved to Honolulu, Hawaii, state officials told him that under Hawaiian law write-in votes could not be counted. Burdick contends that he should be allowed to cast write-in votes because he is frequently dissatisfied with the choice of candidates on the ballot, who often do not represent his views or share his positions on public policy issues. Hawaii is so heavily Democratic (Democrats constitute 90 percent of the state legislature) that the Republican party frequently does not field candidates for local offices. In the 1986 state legislative elections, there was only one candidate in Burdick's district for the state House of Representatives. Burdick says he had no interest in voting for that candidate, but he did want to cast a write-in vote to express his opposition to the only available choice on the printed ballot. Consequently, Burdick filed this lawsuit, contending that the state's prohibition against write-in votes violates his right Frank R. Parker is director of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, 1400 Eye St., NW, STE 400, Washington, DC 20005; telephone (202) 371-1212. to vote for candidates of his choice and to express political dissent in the voting booth. The federal district court in Hawaii, in an opinion by District Judge Harold M. Fong, held that the state's failure to allow write-in votes was inconsistent with the voters' freedom of expression and right of political association protected by the First and Fourteenth Amend- ments to the U.S. Constitution. 737 F. Supp. 582 (D. Hawaii 1990). If even one voter wishes to dissent from the voice of the majority by writing in the name of a candidate not avail- able on the printed ballot, this court believes that is his right, Judge Fong ruled. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed. 937 F.2d 415 (9th Cir. 1991). In an opinion by Circuit Judge Robert R. Beezer, joined by Circuit Judges Otto R. Scopil, Jr., and Ferdinand F. Fernandez, the Ninth Circuit recognized that there was a fundamental right to vote secured by the U.S. Constitution, but that this right was not without limits. Judge Beezer wrote: Casting one's vote does not implicate fundamental rights in a vacuum. ... Although Bur- dick is guaranteed an equal voice in the election of those who govern, Burdick does not have an unlimited right to vote for any particular candidate. The Ninth Circuit ruled that the write-in prohibition was not an excessive burden on the right to vote because Hawaii's election laws made it easy for candidates to qualify to run for office, and there were adequate alternative channels for Bur- dick to express his political views and his opposition to the candidates listed on the ballot. Further, the court of appeals concluded that the prohibition was justified by the state's legitimate interests in political stability, fostering an informed electorate, and protecting the internal structures of the state's election laws. BACKGROUND AND SIGNIFICANCE Although several state courts have held that prohibitions on write-in voting violate their state constitutions, this is the first federal constitutional challenge to an absolute prohibi- tion to reach the Supreme Court. At least 25 states have some restrictions on write-in voting. Some limit the ban on write- ins to primary elections (eight states), allow the reporting of vote totals only of write-in candidates who preregister with state officials (at least 16 states), and recognize only those winning write-in candidates who file disclosure statements of their eligibility (at least two states). Other states forbid write-ins but allow voters to mark their ballots for none of these candidates. But only four states-Hawaii, Nevada, Oklahoma, and A24 PREVIEW

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