OCTOBER TERM, 1991
Syllabus
BURDICK
v. TAKUSHI, DIRECTOR OF ELECTIONS OF HAWAII, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-535. Argued March 24, 1992-Decided June 8, 1992
Petitioner, a registered Honolulu voter, filed suit against
respondent state officials, claiming that Hawaii's prohibition on
write-in voting violated his rights of expression and association
under the First and Fourteenth Amendments. The District Court
ultimately granted his motion for summary judgment and injunctive
relief, but the Court of Appeals reversed, holding that the
prohibition, taken as part of the State's comprehensive election
scheme, does not impermissibly burden the right to vote.
Held: Hawaii's prohibition on write-in voting does not
unreasonably infringe upon its citizens' rights under the First and
Fourteenth Amendments. Pp. 432-442.
(a) Petitioner assumes erroneously that a law that imposes any
burden on the right to vote must be subject to strict scrutiny.
This Court's cases have applied a more flexible standard: A court
considering a state election law challenge must weigh the character
and magnitude of the asserted injury to the First and Fourteenth
Amendment rights that the plaintiff seeks to vindicate against the
precise interests put forward by the State as justification for the
burden imposed by its rule, taking into consideration the extent to
which those interests make it necessary to burden the plaintiff's
rights.
Anderson v.
Celebrezze, 460 U. S. 780, 788-789.
Under this standard, a regulation must be narrowly drawn to advance
a state interest of compelling importance only when it subjects the
voters' rights to "severe" restrictions.
Norman v.
Reed, 502 U.
S. 279, 289. If it imposes only "reasonable, nondiscriminatory
restrictions" upon those rights, the State's important regulatory
interests are generally sufficient to justify the restrictions.
Anderson, supra, at 788. Pp. 432-434.
(b) Hawaii's write-in vote prohibition imposes a very limited
burden upon voters' rights to associate politically through the
vote and to have candidates of their choice placed on the ballot.
Because the State's election laws provide easy access to the
primary ballot until the cutoff date for the filing of nominating
petitions, two months before the primary, any burden on the voters'
rights is borne only by those who fail to identify their candidate
of choice until shortly before the primary. An
429
interest in making a late rather than an early decision is
entitled to little weight. Cf.
Storer v.
Brown,
415 U. S. 724,
736. Pp. 434-439.
(c) Hawaii's asserted interests in avoiding the possibility of
unrestrained factionalism at the general election and in guarding
against "party raiding" during the primaries are legitimate and are
sufficient to outweigh the limited burden that the write-in voting
ban imposes upon voters. Pp. 439-440.
(d) Indeed, the foregoing analysis leads to the conclusion that
where, as here, a State's ballot access laws pass constitutional
muster as imposing only reasonable burdens on First and Fourteenth
Amendment rights, a write-in voting prohibition will be
presumptively valid, since any burden on the right to vote for the
candidate of one's choice will be light and normally will be
counterbalanced by the very state interests supporting the ballot
access scheme. Pp.441-442.
937 F.2d
415, affirmed.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, SOUTER, and THOMAS, JJ.,
joined. KENNEDY, J., filed a dissenting opinion, in which BLACKMUN
and STEVENS, JJ., joined,
post, p. 442.
Arthur N.
Eisenberg argued the cause for
petitioner.
With him on the briefs were Steven R. Shapiro, John A. Powell,
Mary Blaine Johnston, Carl Varady, Paul W Kahn, Lawrence G. Sager,
Burt Neuborne, and Alan B. Burdick, pro se.
Steven S.
Michaels, Deputy Attorney General of
Hawaii, argued the cause for respondents. With him on the brief
were
Warren Price III, Attorney General, and
Girard D. Lau, Deputy Attorney General. *
*Briefs of
amici curiae urging reversal were filed for
Common Cause/ Hawaii by
Stanley E. Levin; for the Hawaii
Libertarian Party by
Arlo Hale Smith; and for the Socialist
Workers Party by
Edward Copeland and
Eric M.
Lieberman.
A brief of
amici curiae urging affirmance was filed for
the State of Arizona et al. by
Frankie Sue Del Papa,
Attorney General of Nevada, and
Kateri Cavin, Deputy
Attorney General, and by the Attorneys General for their respective
jurisdictions as follows:
Grant Woods of Arizona,
Robert
A. Butterworth of Florida,
Richard P. Ieyoub of
Louisiana,
Lacy H. Thornburg of North Carolina,
Susan
Brimer Loving of Oklahoma,
Mark
430
JUSTICE WHITE delivered the opinion of the Court.
The issue in this case is whether Hawaii's prohibition on
write-in voting unreasonably infringes upon its citizens' rights
under the First and Fourteenth Amendments. Petitioner contends that
the Constitution requires Hawaii to provide for the casting,
tabulation, and publication of write-in votes. The Court of Appeals
for the Ninth Circuit disagreed, holding that the prohibition,
taken as part of the State's comprehensive election scheme, does
not impermissibly burden the right to vote.
937
F.2d 415, 422 (1991). We affirm.
I
Petitioner is a registered voter in the city and county of
Honolulu. In 1986, only one candidate filed nominating papers to
run for the seat representing petitioner's district in the Hawaii
House of Representatives. Petitioner wrote to state officials
inquiring about Hawaii's write-in voting policy and received a copy
of an opinion letter issued by the Hawaii Attorney General's Office
stating that the State's election law made no provision for
write-in voting. 1 App. 38-39,49.
Petitioner then filed this lawsuit, claiming that he wished to
vote in the primary and general elections for a person who had not
filed nominating papers and that he wished to vote in future
elections for other persons whose names might not appear on the
ballot.
Id., at 32-33. The United States District Court for
the District of Hawaii concluded that the ban on write-in voting
violated petitioner's First Amendment right of expression and
association and entered a preliminary injunction ordering
respondents to provide for the casting and tallying of write-in
votes in the November 1986 general
Barnett of South Dakota,
Paul Van Dam of Utah,
Joseph B. Meyer of Wyoming, and
Robert Naraja of the
Commonwealth of the Northern Mariana Islands.
James C.
Linger filed a brief for Andre Marrou et
al. as
amici curiae.
431
election. App. to Pet. for Cert. 67a-77a. The District Court
denied a stay pending appeal. 1 App. 76-107.
The Court of Appeals entered the stay,
id., at 109, and
vacated the judgment of the District Court, reasoning that
consideration of the federal constitutional question raised by
petitioner was premature because "neither the plain language of
Hawaii statutes nor any definitive judicial interpretation of those
statutes establishes that the Hawaii legislature has enacted a ban
on write-in voting,"
Burdick v.
Takushi, 846 F.2d
587, 588 (CA9 1988). Accordingly, the Court of Appeals ordered
the District Court to abstain, see
Railroad Comm'n of Texas
v.
Pullman Co., 312 U. S. 496 (1941),
until state courts had determined whether Hawaii's election laws
permitted write-in voting.1
On remand, the District Court certified the following three
questions to the Supreme Court of Hawaii:
"(1) Does the Constitution of the State of Hawaii require
Hawaii's election officials to permit the casting of write-in votes
and require Hawaii's election officials to count and publish
write-in votes?
"(2) Do Hawaii's election laws require Hawaii's election
officials to permit the casting of write-in votes and require
Hawaii's election officials to count and publish write-in
votes?
"(3) Do Hawaii's election laws permit, but not require, Hawaii's
election officials to allow voters to cast writein votes and to
count and publish write-in votes?" App. to Pet. for Cert.
56a-57a.
1 While petitioner's appeal was pending, he became concerned
that the Court of Appeals might not enter its decision before the
September 1988 primary election. Accordingly, petitioner filed a
second suit challenging the unavailability of write-in voting in
the 1988 election.
Burdick v.
Cayetano, Civ.
No. 99-0365. Coincidentally, petitioner's new suit was filed on the
very day that the Ninth Circuit decided the appeal stemming from
petitioner's original complaint. The two actions subsequently were
consolidated by the District Court. 1 App. 142.
432
Hawaii's high court answered "No" to all three questions,
holding that Hawaii's election laws barred write-in voting and that
these measures were consistent with the State's Constitution.
Burdick v.
Takushi, 70 Haw. 498, 776 P. 2d 824
(1989). The United States District Court then granted petitioner's
renewed motion for summary judgment and injunctive relief, but
entered a stay pending appeal. 737
The Court of Appeals again reversed, holding that Hawaii
was not required to provide for write-in votes:
"Although the prohibition on write-in voting places some
restrictions on [petitioner's] rights of expression and
association, that burden is justified in light of the ease of
access to Hawaii's ballots, the alternatives available to
[petitioner] for expressing his political beliefs, the State's
broad powers to regulate elections, and the specific interests
advanced by the State." 937 F. 2d, at 421.2
In so ruling, the Ninth Circuit expressly declined to follow an
earlier decision regarding write-in voting by the Court of Appeals
for the Fourth Circuit. See
ibid., citing
Dixon v.
Maryland State Administrative Bd. of Election Laws, 878 F.
2d 776 (CA4 1989). We granted certiorari to resolve the
disagreement on this important question. 502 U. S. 1003 (1991).
II
Petitioner proceeds from the erroneous assumption that a law
that imposes any burden upon the right to vote must be subject to
strict scrutiny. Our cases do not so hold.
2 The Ninth Circuit panel issued its opinion on March 1, 1991.
See
Burdick v.
Takushi, 927
F.2d 469. On June 28, 1991, the Court of Appeals denied
petitioner's petition for rehearing and suggestion for rehearing en
bane, and the panel withdrew its original opinion and issued the
version that appears at
937 F.2d
415.
433
It is beyond cavil that "voting is of the most fundamental
significance under our constitutional structure."
Illinois Bd.
of Elections v.
Socialist Workers Party, 440 U. S. 173, 184
(1979). It does not follow, however, that the right to vote in any
manner and the right to associate for political purposes through
the ballot are absolute.
Munro v.
Socialist Workers
Party, 479 U. S.
189, 193 (1986). The Constitution provides that States may
prescribe "[t]he Times, Places and Manner of holding Elections for
Senators and Representatives," Art. I, § 4, cl. 1, and the Court
therefore has recognized that States retain the power to regulate
their own elections.
Sugarman v.
Dougall, 413 U. S. 634, 647
(1973); Tashjian v.
Republican Party of Connecticut,
479 U. S. 208,
217 (1986). Common sense, as well as constitutionallaw, compels the
conclusion that government must play an active role in structuring
elections; "as a practical matter, there must be a substantial
regulation of elections if they are to be fair and honest and if
some sort of order, rather than chaos, is to accompany the
democratic processes."
Storer v.
Brown, 415 U. S. 724, 730
(1974).
Election laws will invariably impose some burden upon individual
voters. Each provision of a code, "whether it governs the
registration and qualifications of voters, the selection and
eligibility of candidates, or the voting process itself, inevitably
affects-at least to some degree-the individual's right to vote and
his right to associate with others for political ends."
Anderson v.
Celebrezze, 460 U. S. 780, 788
(1983). Consequently, to subject every voting regulation to strict
scrutiny and to require that the regulation be narrowly tailored to
advance a compelling state interest, as petitioner suggests, would
tie the hands of States seeking to assure that elections are
operated equitably and efficiently. See Brief for Petitioner 32-37.
Accordingly, the mere fact that a State's system "creates barriers
... tending to limit the field of candidates from which voters
might choose ... does not of itself compel close scrutiny."
Bullock v.
Carter, 405
434
u. S. 134, 143 (1972); Anderson, supra, at 788; McDonald v.
Board of Election Comm'rs of Chicago,
394 U. S. 802 (1969).
Instead, as the full Court agreed in
Anderson, 460 U. S.,
at
788-789; id., at 808, 817 (REHNQUIST, J., dissenting), a
more flexible standard applies. A court considering a challenge to
a state election law must weigh "the character and magnitude of the
asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate" against "the
precise interests put forward by the State as justifications for
the burden imposed by its rule," taking into consideration "the
extent to which those interests make it necessary to burden the
plaintiff's rights."
Id., at 789;
Tashjian, supra, at
213-214.
Under this standard, the rigorousness of our inquiry into the
propriety of a state election law depends upon the extent to which
a challenged regulation burdens First and Fourteenth Amendment
rights. Thus, as we have recognized when those rights are subjected
to "severe" restrictions, the regulation must be "narrowly drawn to
advance a state interest of compelling importance."
Norman
v.
Reed, 502 U. S. 279, 289 (1992). But when a state
election law provision imposes only "reasonable, nondiscriminatory
restrictions" upon the First and Fourteenth Amendment rights of
voters, "the State's important regulatory interests are generally
sufficient to justify" the restrictions.
Anderson, 460 U.
S., at 788; see also
id., at 788-789, n. 9. We apply this
standard in considering petitioner's challenge to Hawaii's ban on
write-in ballots.
A
There is no doubt that the Hawaii election laws, like all
election regulations, have an impact on the right to vote,
id., at 788, but it can hardly be said that the laws at
issue here unconstitutionally limit access to the ballot by party
or independent candidates or unreasonably interfere with the right
of voters to associate and have candidates of their choice placed
on the ballot. Indeed, petitioner understandably does
435
not challenge the manner in which the State regulates candidate
access to the ballot.
To obtain a position on the November general election ballot, a
candidate must participate in Hawaii's open primary, "in which all
registered voters may choose in which party primary to vote."
Tashjian, supra, at 223, n. 11. See Haw. Rev. Stat. § 12-31
(1985). The State provides three mechanisms through which a voter's
candidate-of-choice may appear on the primary ballot.
First, a party petition may be filed 150 days before the primary
by any group of persons who obtain the signatures of one percent of
the State's registered voters.3 Haw. Rev. Stat. § 11-62 (Supp.
1991). Then, 60 days before the primary, candidates must file
nominating papers certifying, among other things, that they will
qualify for the office sought and that they are members of the
party that they seek to represent in the general election. The
nominating papers must contain the signatures of a specified number
of registered voters: 25 for candidates for statewide or federal
office; 15 for state legislative and county races. Haw. Rev. Stat.
§§ 12-2.5 to 12-7 (1985 and Supp. 1991). The winner in each party
advances to the general election. Thus, if a party forms around the
candidacy of a single individual and no one else runs on that party
ticket, the individual will be elected at the primary and win a
place on the November general election ballot.
The second method through which candidates may appear on the
Hawaii primary ballot is the established party route.4
3We have previously upheld party and candidate petition
signature requirements that were as burdensome or more burdensome
than Hawaii's one-percent requirement. See,
e. g.,
Norman v.
Reed, 502 U. S. 279, 295
(1992); American Party of Texas v.
White, 415 U. S. 767 (1974);
Jenness v.
Fortson, 403 U. S. 431 (1971).
4 In
Jenness, we rejected an equal protection challenge
to a system that provided alternative means of ballot access for
members of established political parties and other candidates,
concluding that the system was con-
436
Established parties that have qualified by petition for three
consecutive elections and received a specified percentage of the
vote in the preceding election may avoid filing party petitions for
10 years. Haw. Rev. Stat. § 11-61 (1985). The Democratic,
Republican, and Libertarian Parties currently meet Hawaii's
criteria for established parties. Like new party candidates,
established party contenders are required to file nominating papers
60 days before the primary. Haw. Rev. Stat. §§ 12-2.5 to 12-7 (1985
and Supp. 1991).5
The third mechanism by which a candidate may appear on the
ballot is through the designated nonpartisan ballot. Nonpartisans
may be placed on the nonpartisan primary ballot simply by filing
nominating papers containing 15 to 25 signatures, depending upon
the office sought, 60 days before the primary. §§ 12-3 to 12-7. To
advance to the general election, a nonpartisan must receive 10
percent of the primary vote or the number of votes that was
sufficient to nominate a partisan candidate, whichever number is
lower.
Hustace v.
Doi, 60 Haw. 282, 289-290, 588 P.
2d 915, 920 (1978). During the 10 years preceding the filing of
this action, 8 of 26 nonpartisans who entered the primary obtained
slots on the November ballot. Brief for Respondents 8.
Although Hawaii makes no provision for write-in voting in its
primary or general elections, the system outlined above provides
for easy access to the ballot until the cutoff date for the filing
of nominating petitions, two months before the primary.
Consequently, any burden on voters' freedom of choice and
association is borne only by those who fail to iden-
stitutional because it did not operate to freeze the political
status quo. 403 U. S., at 438.
5 In
Anderson v. Celebrezze, 460 U. S. 780 (1983), the
Court concluded that Ohio's early filing deadline for Presidential
candidates imposed an unconstitutional burden on voters' freedom of
choice and freedom of association. But
Anderson is
distinguishable because the Ohio election scheme, as explained by
the Court, provided no means for a candidate to appear on the
ballot after a March cutoff date.
Id., at 786. Hawaii fills
this void through its nonpartisan primary ballot mechanism.
437
tify their candidate of choice until days before the primary.
But in
Storer v.
Brown, we gave little weight to "the
interest the candidate and his supporters may have in making a late
rather than an early decision to seek independent ballot status."
415 U. S., at 736.6 Cf.
Rosario v.
Rockefeller, 410
U. S. 752, 757 (1973). We think the same reasoning applies here and
therefore conclude that any burden imposed by Hawaii's write-in
vote prohibition is a very limited one. "To conclude otherwise
might sacrifice the political stability of the system of the State,
with profound consequences for the entire citizenry, merely in the
interest of particular candidates and their supporters having
instantaneous access to the ballot."
Storer, supra, at
736.7
Because he has characterized this as a voting rights rather than
ballot access case, petitioner submits that the write-in
prohibition deprives him of the opportunity to cast a meaningful
ballot, conditions his electoral participation upon the
6 In
Storer, we upheld a California ballot access law
that refused to recognize independent candidates until a year after
they had disaffiliated from a political party.
7 The dissent complains that, because primary voters are
required to opt for a specific partisan or nonpartisan ballot, they
are foreclosed from voting in those races in which no candidate
appears on their chosen ballot and in those races in which they are
dissatisfied with the available choices.
Post, at 444. But
this is generally true of primaries; voters are required to select
a ticket, rather than choose from the universe of candidates
running on all party slates. Indeed, the Court has upheld the much
more onerous requirement that voters interested in participating in
a primary election enroll as a member of a political party prior to
the preceding general election.
Rosario v.
Rockefeller, 410 U. S. 752 (1973). Cf.
American Party of Texas, supra, at 786 ("[T]he State may
determine that it is essential to the integrity of the nominating
[petition] process to confine voters to supporting one party and
its candidates in the course of the same nominating process").
If the dissent were correct in suggesting that requiring primary
voters to select a specific ballot impermissibly burdened the right
to vote, it is clear under our decisions that the availability of a
write-in option would not provide an adequate remedy.
Anderson,
supra, at 799, n. 26;
Lubin v.
Panish, 415 U. S. 709, 719, n. 5
(1974).
438
waiver of his First Amendment right to remain free from
espousing positions that he does not support, and discriminates
against him based on the content of the message he seeks to convey
through his vote. Brief for Petitioner 19. At bottom, he claims
that he is entitled to cast and Hawaii required to count a "protest
vote" for Donald Duck, Tr. of Oral Arg. 5, and that any impediment
to this asserted "right" is unconstitutional.
Petitioner's argument is based on two flawed premises.
First, in
Bullock v.
Carter, we minimized the
extent to which voting rights cases are distinguishable from ballot
access cases, stating that "the rights of voters and the rights of
candidates do not lend themselves to neat separation." 405 U. S.,
at 143.8 Second, the function of the election process is "to winnow
out and finally reject all but the chosen candidates,"
Storer, 415 U. S., at 735, not to provide a means of giving
vent to "short-range political goals, pique, or personal
quarrel[sJ."
Ibid. Attributing to elections a more
generalized expressive function would undermine the ability of
States to operate elections fairly and efficiently.
Id., at
730.
Accordingly, we have repeatedly upheld reasonable, politically
neutral regulations that have the effect of channeling expressive
activity at the polls. See
Munro, 479 U. S., at 199.
Petitioner offers no persuasive reason to depart from these
precedents. Reasonable regulation of elections
does not
require voters to espouse positions that they do not support; it
does require them to act in a timely fashion if they wish to
express their views in the voting booth. And there is nothing
content based about a flat ban on all forms of write-in
ballots.
The appropriate standard for evaluating a claim that a state law
burdens the right to vote is set forth in
Anderson. Applying
that standard, we conclude that, in light of the adequate ballot
access afforded under Hawaii's election code, the
8 Indeed, voters, as well as candidates, have participated in
the so-called ballot access cases.
E. g.,
Anderson, supra, at 783.
439
State's ban on write-in voting imposes only a limited burden on
voters' rights to make free choices and to associate politically
through the vote.
B
We turn next to the interests asserted by Hawaii to justify the
burden imposed by its prohibition of write-in voting. Because we
have already concluded that the burden is slight, the State need
not establish a compelling interest to tip the constitutional
scales in its direction. Here, the State's interests outweigh
petitioner's limited interest in waiting until the eleventh hour to
choose his preferred candidate.
Hawaii's interest in "avoid[ing] the possibility of unrestrained
factionalism at the general election,"
Munro, supra, at 196,
provides adequate justification for its ban on write-in voting in
November. The primary election is "an integral part of the entire
election process,"
Storer, 415 U. S., at 735, and the State
is within its rights to reserve "[t]he general election ballot ...
for major struggles ... [and] not a forum for continuing intraparty
feuds."
Ibid.; Munro, supra, at 196, 199. The prohibition on
write-in voting is a legitimate means of averting divisive
sore-loser candidacies. Hawaii further promotes the two-stage,
primary-general election process of winnowing out candidates, see
Storer, supra, at 735, by permitting the unopposed victors
in certain primaries to be designated officeholders. See Haw. Rev.
Stat. §§ 12-41, 12-42 (1985). This focuses the attention of voters
upon contested races in the general election. This would not be
possible, absent the write-in voting ban.
Hawaii also asserts that its ban on write-in voting at the
primary stage is necessary to guard against "party raiding."
Tashjian, 479 U. S., at 219. Party raiding is generally
defined as "the organized switching of blocs of voters from one
party to another in order to manipulate the outcome of the other
party's primary election."
Anderson, 460 U. S., at 789, n.
9. Petitioner suggests that, because Hawaii conducts an open
primary, this is not a cognizable interest. We dis-
440
agree. While voters may vote on any ticket in Hawaii's primary,
the State requires that party candidates be "member[s] of the
party," Haw. Rev. Stat. § 12-3(a)(7) (1985), and prohibits
candidates from filing "nomination papers both as a party candidate
and as a nonpartisan candidate," § 12-3(c). Hawaii's system could
easily be circumvented in a party primary election by mounting a
write-in campaign for a person who had not filed in time or who had
never intended to run for election. It could also be frustrated at
the general election by permitting write-in votes for a loser in a
party primary or for an independent who had failed to get
sufficient votes to make the general election ballot. The State has
a legitimate interest in preventing these sorts of maneuvers, and
the write-in voting ban is a reasonable way of accomplishing this
goal. 9
We think these legitimate interests asserted by the State are
sufficient to outweigh the limited burden that the writein voting
ban imposes upon Hawaii's voters.10
9 The State also supports its ban on write-in voting as a means
of enforcing nominating requirements, combating fraud, and
"fostering informed and educated expressions of the popular will."
Anderson, 460 U. S., at 796.
10 Although the dissent purports to agree with the standard we
apply in determining whether the right to vote has been restricted,
post, at 445446, and implies that it is analyzing the
write-in ban under some minimal level of scrutiny,
post, at
448, the dissent actually employs strict scrutiny. This is evident
from its invocation of quite rigid narrow tailoring requirements.
For instance, the dissent argues that the State could adopt a less
drastic means of preventing sore-loser candidacies,
ibid.,
and that the State could screen out ineligible candidates through
postelection disqualification rather than a write-in voting ban.
Post, at 450.
It seems to us that limiting the choice of candidates to those
who have complied with state election law requirements is the
prototypical example of a regulation that, while it affects the
right to vote, is eminently reasonable.
Anderson, supra, at
788. The dissent's suggestion that voters are entitled to cast
their ballots for unqualified candidates appears to be driven by
the assumption that an election system that imposes any restraint
on voter choice is unconstitutional. This is simply wrong. See
supra, at 433-434.
441
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-as do
Hawaii's election laws-a prohibition on write-in voting will be
presumptively valid, since any burden on the right to vote for the
candidate of one's choice will be light and normally will be
counterbalanced by the very state interests supporting the ballot
access scheme.
In such situations, 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; and we discern no adequate
basis for our requiring the State to provide and to finance a place
on the ballot for recording protests against its constitutionally
valid election laws.ll
"No right is more precious in a free country than that of having
a voice in the election of those who make the laws under which, as
good citizens, we must live."
Wesberry v.
Sanders,
376 U. S. 1, 17
(1964). But the right to vote is the right to participate in an
electoral process that is necessarily structured to maintain the
integrity of the democratic system.
Anderson, supra, at 788;
Storer, 415 U. S., at 730. We think that Hawaii's
prohibition on write-in voting, considered as part of an electoral
scheme that provides constitutionally sufficient ballot access,
does not impose an unconstitutional burden upon the First and
Fourteenth Amendment rights of
11 We of course in no way suggest that a State is not free to
provide for write-in voting, as many States do; nor should this
opinion be read to discourage such provisions.
442
the State's voters. Accordingly, the judgment of the Court of
Appeals is affirmed.
It is so ordered.
JUSTICE KENNEDY, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, dissenting.
The question before us is whether Hawaii can enact a total ban
on write-in voting. The majority holds that it can, finding that
Hawaii's ballot access rules impose no serious limitations on the
right to vote. Indeed, the majority in effect adopts a presumption
that prohibitions on write-in voting are permissible if the State's
ballot access laws meet constitutional standards. I dissent because
I disagree with the presumption, as well as the majority's specific
conclusion that Hawaii's ban on write-in voting is
constitutional.
The record demonstrates the significant burden that Hawaii's
write-in ban imposes on the right of voters such as petitioner to
vote for the candidates of their choice. In the election that
triggered this lawsuit, petitioner did not wish to vote for the one
candidate who ran for state representative in his district. Because
he could not write in the name of a candidate he preferred, he had
no way to cast a meaningful vote. Petitioner's dilemma is a
recurring, frequent phenomenon in Hawaii because of the State's
ballot access rules and the circumstance that one party, the
Democratic Party, is predominant. It is critical to understand that
petitioner's case is not an isolated example of a restriction on
the free choice of candidates. The very ballot access rules the
Court cites as mitigating his injury in fact compound it
systemwide.
Democratic candidates often run unopposed, especially in state
legislative races. In the 1986 general election, 33 percent of the
elections for state legislative offices involved single candidate
races. Reply Brief for Petitioner 2-3, n. 2. The comparable figures
for 1984 and 1982 were 39 percent and 37.5 percent.
Ibid.
Large numbers of voters cast
443
blank ballots in uncontested races, that is, they leave the
ballots blank rather than vote for the single candidate listed. In
1990, 27 percent of voters who voted in other races did not cast
votes in uncontested state Senate races. Brief for Common
Cause/Hawaii as
Amicus Curiae 15-16. Twentynine percent of
voters did not cast votes in uncontested state House races.
Id., at 16. Even in contested races in 1990, 12 to 13
percent of voters cast blank ballots.
Id., at 16-17.
Given that so many Hawaii voters are dissatisfied with the
choices available to them, it is hard to avoid the conclusion that
at least some voters would cast write-in votes for other candidates
if given this option. The write-in ban thus prevents these voters
from participating in Hawaii elections in a meaningful manner.
This evidence also belies the majority's suggestion that Hawaii
voters are presented with adequate electoral choices because Hawaii
makes it easy to get on the official ballot. To the contrary,
Hawaii's ballot access laws taken as a whole impose a significant
impediment to third-party or independent candidacies. The majority
suggests that it is easy for new parties to petition for a place on
the primary ballot because they must obtain the signatures of only
one percent of the State's registered voters. This ignores the
difficulty presented by the early deadline for gathering these
signatures: 150 days (5 months) before the primary election.
Meeting this deadline requires considerable organization at an
early stage in the election, a condition difficult for many small
parties to meet. See Brief for Socialist Workers Party as
Amicus
Curiae 10-11, n. 4.
If the party petition is unsuccessful or not completed in time,
or if a candidate does not wish to be affiliated with a party, he
may run as an independent. While the requirements to get on the
nonpartisan ballot are not onerous (15 to 25 signatures, 60 days
before the primary), the nonpartisan ballot presents voters with a
difficult choice. This is because each primary voter can choose
only a single ballot
444
for all offices. Hence, a voter who wishes to vote for an
independent candidate for one office must forgo the opportunity to
vote in an established party primary in every other race. Since
there might be no independent candidates for most of the other
offices, in practical terms the voter who wants to vote for one
independent candidate forfeits the right to participate in the
selection of candidates for all other offices. This rule, the very
ballot access rule that the Court finds to be curative, in fact
presents a substantial disincentive for voters to select the
nonpartisan ballot. A voter who wishes to vote for a third-party
candidate for only one particular office faces a similar
disincentive to select the third party's ballot.
The dominance of the Democratic Party magnifies the disincentive
because the primary election is dispositive in so many races. In
effect, a Hawaii voter who wishes to vote for any independent
candidate must choose between doing so and participating in what
will be the dispositive election for many offices. This dilemma
imposes a substantial burden on voter choice. It explains also why
so few independent candidates secure enough primary votes to
advance to the general election. As the majority notes, only eight
independent candidates have succeeded in advancing to the general
election in the past 10 years. That is, less than one independent
candidate per year on average has in fact run in a general election
in Hawaii.
The majority's approval of Hawaii's ban is ironic at a time when
the new democracies in foreign countries strive to emerge from an
era of sham elections in which the name of the ruling party
candidate was the only one on the ballot. Hawaii does not impose as
severe a restriction on the right to vote, but it imposes a
restriction that has a haunting similarity in its tendency to exact
severe penalties for one who does anything but vote the dominant
party ballot.
Aside from constraints related to ballot access restrictions,
the write-in ban limits voter choice in another way. Write-
445
in voting can serve as an important safety mechanism in those
instances where a late-developing issue arises or where new
information is disclosed about a candidate late in the race. In
these situations, voters may become disenchanted with the available
candidates when it is too late for other candidates to come forward
and qualify for the ballot. The prohibition on write-in voting
imposes a significant burden on voters, forcing them either to vote
for a candidate whom they no longer support or to cast a blank
ballot. Write-in voting provides a way out of the quandary,
allowing voters to switch their support to candidates who are not
on the official ballot. Even if there are other mechanisms to
address the problem of late-breaking election developments
(unsuitable candidates who win an election can be recalled),
allowing write-in voting is the only way to preserve the voters'
right to cast a meaningful vote in the general election.
With this background, I turn to the legal principles that
control this case. At the outset, I agree with the first premise in
the majority's legal analysis. The right at stake here is the right
to cast a meaningful vote for the candidate of one's choice.
Petitioner's right to freedom of expression is not implicated. His
argument that the First Amendment confers upon citizens the right
to cast a protest vote and to have government officials count and
report this vote is not persuasive. As the majority points out, the
purpose of casting, counting, and recording votes is to elect
public officials, not to serve as a general forum for political
expression.
I agree as well with the careful statement the Court gives of
the test to be applied in this case to determine if the right to
vote has been constricted. As the Court phrases it, we must "weigh
'the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate' against 'the precise interests put forward by
the State as justifications for the burden imposed by its rule,'
taking into consideration 'the extent to which those interests make
it neces-
446
sary to burden the plaintiff's rights.'"
Ante, at 434,
quoting
Tashjian v.
Republican Party of Connecticut,
479 U. S. 208,
213-214 (1986). I submit the conclusion must be that the write-in
ban deprives some voters of any substantial voice in selecting
candidates for the entire range of offices at issue in a particular
election.
As a starting point, it is useful to remember that until the
late 1800's, all ballots cast in this country were write-in
ballots. The system of state-prepared ballots, also known as the
Australian ballot system, was introduced in this country in 1888.
See L. E. Fredman, The Australian Ballot: The Story of an American
Reform ix (1968). Prior to this, voters prepared their own ballots
or used preprinted tickets offered by political parties. Since
there were no state-imposed restrictions on whose name could appear
on a ballot, individuals could always vote for the candidates of
their choice.
State-prepared ballots were considered to be a progressive
reform to reduce fraudulent election practices. The preprinted
ballots offered by political parties had often been in distinctive
colors so that the party could determine whether one who had sold
his vote had used the right ballot.
Id., at 22. The
disadvantage of the new ballot system was that it could operate to
constrict voter choice. In recognition of this problem, several
early state courts recognized a right to cast write-in votes. See,
e. g., Sanner v.
Patton, 155 Ill. 553, 562-564, 40 N.
E. 290, 292-293 (1895) ("[I]f the construction contended for by
appellee [prohibiting write-in voting] be the correct one, the
voter is deprived of the constitutional right of suffrage; he is
deprived of the right of exercising his own choice; and where this
right is taken away there is nothing left worthy of the name of the
right of suffrage-the boasted free ballot becomes a delusion");
Patterson v.
Hanley, 136 Cal. 265, 270, 68 P. 821,
823 (1902) ("Under every form of ballot of which we have had any
experience the voter has been allowed-and it seems to be agreed
that he must be allowed-the privilege of casting his vote for any
person for
447
any office by writing his name in the proper place"); and
Oughton v.
Black, 212 Pa. 1, 6-7, 61 A. 346, 348
(1905) ("Unless there was such provision to enable the voter, not
satisfied to vote any ticket on the ballot, or for any names
appearing on it, to make up an entire ticket of his own choice, the
election as to him would not be equal, for he would not be able to
express his own individual will in his own way").
As these courts recognized, some voters cannot vote for the
candidate of their choice without a write-in option. In effect, a
write-in ban, in conjunction with other restrictions, can deprive
the voter of the opportunity to cast a meaningful ballot. As a
consequence, write-in prohibitions can impose a significant burden
on voting rights. See
Reynolds v.
Sims, 377 U. S. 533, 555 (1964)
("The right to vote freely for the candidate of one's choice is of
the essence of a democratic society, and any restrictions on that
right strike at the heart of representative government"). For those
who are affected by write-in bans, the infringement on their right
to vote for the candidate of their choice is total. The fact that
writein candidates are longshots more often than not makes no
difference; the right to vote for one's preferred candidate exists
regardless of the likelihood that the candidate will be successful.
Socialist Labor Party v.
Rhodes, 290 F. Supp. 983,
987 (SD Ohio) ("A write-in ballot permits a voter to effectively
exercise his individual constitutionally protected franchise. The
use of write-in ballots does not and should not be dependent on the
candidate's chance of success"), aff'd in part, modified in part
sub nom. Williams v.
Rhodes, 393 U. S. 23 (1968).
Based on the foregoing reasoning, I cannot accept the majority's
presumption that write-in bans are permissible if the State's
ballot access laws are otherwise constitutional. The presumption is
circular, for it fails to take into account that we must consider
the availability of write-in voting, or the lack thereof, as a
factor in determining whether a State's ballot access laws
considered as a whole are constitutional.
448
Jenness v.
Fortson, 403 U. S. 431, 438
(1971);
Storer v.
Brown, 415 U. S. 724, 736, n. 7
(1974). The effect of the presumption, moreover, is to excuse a
State from having to justify or defend any write-in ban. Under the
majority's view, a write-in ban only has constitutional
implications when the State's ballot access scheme is defective and
write-in voting would remedy the defect. This means that the State
needs to defend only its ballot access laws, and not the write-in
restriction itself.
The majority's analysis ignores the inevitable and significant
burden a write-in ban imposes upon some individual voters by
preventing them from exercising their right to vote in a meaningful
manner. The liberality of a State's ballot access laws is one
determinant of the extent of the burden imposed by the write-in
ban; it is not, though, an automatic excuse for forbidding all
write-in voting. In my view, a State that bans write-in voting in
some or all elections must justify the burden on individual voters
by putting forth the precise interests that are served by the ban.
A write-in prohibition should not be presumed valid in the absence
of any proffered justification by the State. The standard the Court
derives from
Anderson v.
Celebrezze, 460 U. S. 780 (1983),
means at least this.
Because Hawaii's write-in ban, when considered in conjunction
with the State's ballot access laws, imposes a significant burden
on voters such as petitioner, it must put forward the state
interests which justify the burden so that we can assess them. I do
not think it necessary here to specify the level of scrutiny that
should then be applied because, in my view, the State has failed to
justify the write-in ban under any level of scrutiny. The interests
proffered by the State, some of which are puzzling, are not
advanced to any significant degree by the write-in prohibition. I
consider each of the interests in turn.
The interest that has the best potential for acceptance, in my
view, is that of preserving the integrity of party pri-
449
maries by preventing sore loser candidacies during the general
election. As the majority points out, we have acknowledged the
State's interest in avoiding party factionalism. A write-in ban
does serve this interest to some degree by eliminating one
mechanism which could be used by sore loser candidates. But I do
not agree that this interest provides "adequate justification" for
the ban.
Ante, at 439. As an initial matter, the interest
can at best justify the write-in prohibition for general elections;
it cannot justify Hawaii's complete ban in both the primary and the
general election. And with respect to general elections, a write-in
ban is a very overinclusive means of addressing the problem; it
bars legitimate candidacies as well as undesirable sore loser
candidacies. If the State desires to prevent sore loser
candidacies, it can implement a narrow provision aimed at that
particular problem.
The second interest advanced by the State is enforcing its
policy of permitting the unopposed victors in certain primaries to
be designated as officeholders without having to go through the
general election. The majority states that "[t]his would not be
possible, absent the write-in voting ban."
Ibid. This makes
no sense. As petitioner's counsel acknowledged during oral
argument, "[t]o the degree that Hawaii has abolished general
elections in these circumstances, there is no occasion to cast a
write-in ballot." Tr. of Oral Arg. 14. If anything, the argument
cuts the other way because this provision makes it all the more
important to allow write-in voting in the primary elections because
primaries are often dispositive.
Hawaii justifies its write-in ban in primary elections as a way
to prevent party raiding. Petitioner argues that this alleged
interest is suspect because the State created the party raiding
problem in the first place by allowing open primaries. I agree. It
is ironic for the State to raise this concern when the risk of
party raiding is a feature of the open primary system the State has
chosen. The majority
450
suggests that write-in voting presents a particular risk of
circumventing the primary system because state law requires
candidates in party primaries to be members of the party. Again,
the majority's argument is not persuasive. If write-in voters mount
a campaign for a candidate who does not meet state-law
requirements, the candidate would be disqualified from the
election.
The State also cites its interest in promoting the informed
selection of candidates, an interest it claims is advanced by
"flushing candidates into the open a reasonable time before the
election." Brief for Respondents 44. I think the State has it
backwards. The fact that write-in candidates often do not conduct
visible campaigns seems to me to make it more likely that voters
who go to the trouble of seeking out these candidates and writing
in their names are well informed. The state interest may well cut
the other way.
The State cites interests in combating fraud and enforcing
nomination requirements. But the State does not explain how
write-in voting presents a risk of fraud in today's polling places.
As to the State's interest in making sure that ineligible
candidates are not elected, petitioner's counsel pointed out at
argument that approximately 20 States require writein candidates to
file a declaration of candidacy and verify that they are eligible
to hold office a few days before the election. Tr. of Oral Arg.
13.
In sum, the State's proffered justifications for the write-in
prohibition are not sufficient under any standard to justify the
significant impairment of the constitutional rights of voters such
as petitioner. I would grant him relief.
Comments
Be the first to comment
Leave a Comment