34 Yale L. & Pol'y Rev. 471 (2015-2016)
Voting is Speech

handle is hein.journals/yalpr34 and id is 470 raw text is: 








               YALE LAW & POLICY REVIEW



                            Voting Is Speech

                   By Armand  Derfner* & J. Gerald Hebert**

INTRODUCTION

     It seems like an obvious proposition that a citizen registering to vote or
casting a ballot is engaging in free speech, a fundamental right entitled to full
protection under  the First Amendment  to the United States Constitution. This
simple  proposition is especially fitting in light of the broad First Amendment
protection  extended to the dollars spent in political campaigns to influence
votes. But the current Supreme  Court rarely scrutinizes voting regulations as it
does other speech regulations. The Court treats spending to influence voters in
elections-by  candidates, political parties, individuals, corporations, labor un-
ions, and others, including anonymous  contributors who might well be interna-
tional terrorists-as free speech entitled to robust First Amendment protection
against state and federal limitation. Any limitations on such speech are subject-
ed to strict scrutiny. Registering and voting, on the other hand, are given short
shrift by the Court. Burdens on voter registration and voting are not analyzed
under  strict First Amendment  standards, and therefore the Court has allowed
states excessive latitude to restrict voters' access to the ballot box. The Court
should  change course, fully acknowledge the expressive nature of voting, and


*    Armand  Derfner is a partner at Derfier & Altman in Charleston, South Carolina,
     and is Constitutional Law Scholar in Residence at Charleston School of Law. He
     began trying voting cases in Mississippi in 1965, at the dawn of the Voting Rights
     Act.
     J. Gerald Hebert is Executive Director of the Campaign Legal Center and also
     oversees the Voting Rights Institute, a collaborative project of Georgetown
     University Law  Center,  the Campaign   Legal Center, and  the American
     Constitution Society. He is an Adjunct Professor of Law at Georgetown University
     Law  Center and at New York Law School. Mr. Hebert served in the Civil Rights
     Division of the U.S. Department of Justice from 1973-1994. The authors have tried
     and argued hundreds of voting and free speech cases over the past 40+ years in the
     Supreme  Court  of the United States and in other federal and state courts
     throughout the country. The authors currently represent plaintiffs in the pending
     Texas voter ID challenge, Veasey v. Abbott.
          We  are grateful to Noah Lindell, Courtney Dixon, and Danielle Lang for
     helpful comments and suggestions. We are also grateful to the Yale Law & Policy
     Review for careful editing.


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