About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

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. 471

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most