Voting as a Positive Right: a Reply to Flanders

• Jurisdiction: United States,Federal
• Publication year: 2011
• Citation: Vol. 28

§ 28 Alaska L. Rev. 29. VOTING AS A POSITIVE RIGHT: A REPLY TO FLANDERS

Alaska Law Review
Volume 28, No. 1, June 2011
Cited: 28 Alaska L. Rev. 29

VOTING AS A POSITIVE RIGHT: A REPLY TO FLANDERS

Joseph Fishkin ^[*]

Chad Flanders' thoughtful article ^[1] demonstrates that the Murkowski litigation raised questions with surprisingly fundamental implications for election law. This brief response addresses just one of those questions. The question, which at first blush sounds awfully narrow and wonkish, is this: Can a state allow write-in votes, but discourage them by making them difficult to cast? ^[2] I will argue that the answer is no - for reasons that highlight two fundamental, but underappreciated, aspects of election law.

I.

The Supreme Court has settled the question of whether states must allow write-in candidacies and votes at all: They need not. In Burdick v. Takushi, ^[3] the Court upheld a Hawaiian statutory scheme that prohibited write-in votes entirely. ^[4] The scheme did offer minor party and independent candidates what the Court deemed "easy access to the ballot." ^[5] In the Court's view, "the function of the election process" itself is to narrow the list of candidates and find a winner; the state's interest in "winnowing out candidates" and "avoiding divisive sore-loser candidacies" was sufficiently weighty to justify an outright prohibition of write-in candidacies and votes. ^[6]

Since a state may choose either to allow or to prohibit write-in votes, common sense might suggest that an in-between position of "permit but discourage" is equally constitutional: allow write-in votes, but discourage them by making them a bit more difficult to cast. The Alaska Republican Party argued in the Murkowski litigation that not only could a state do this, Alaska was doing it, by enacting stringent rules that write-in votes must be correctly spelled. ^[7] The argument was that such rules make write-in votes more difficult to cast and thereby function as part of a larger scheme aimed at discouraging write-ins and encouraging voters instead to choose one of the candidates on the ballot. ^[8]

The claim that a state can "permit but discourage" is appealing on its face. After all, reasons sufficient to justify an outright ban on something are almost always also sufficient to justify regulations short of an outright ban. Supposing that the reasons the Court laid out in Burdick justify a regime of no write-ins at all, one would think those same reasons could also justify more modest measures aimed at pushing voters to "focus" on the listed candidates. ^[9]

What this straightforward argument misses is that states are doing more than one thing when they regulate elections. Election law defines the structure of democratic competition: the rules that determine the choices voters face and the terms on which voters make those choices. When a state draws a new map of legislative districts, enacts a sore loser law, or decides whether and on what terms to allow write-in candidacies, it is defining the terms of democratic competition. The players here are candidates and parties. The structural rules affect which of those players will win elections. Thus, such rules are typically the object of intense interest, lobbying, legislation, and litigation by parties and candidates and their allies.

Election law also does something else: it determines which individuals will be allowed to vote and which votes, once cast, will count. When a state adopts rules about what forms of identification are required to vote, or rules about which imperfectly-filled-out ballots will be counted, the state is doing more than simply defining the terms of the competition among candidates and parties. It is also making decisions that affect the interests of individual voters, deciding what burdens voters will face when they attempt to exercise their right to vote. Wholly apart from structural questions about the rules of the competition, and from questions about which faction's ox may be gored, each individual voter has an interest in being able to cast a ballot and have it counted. ^[10]

Rules that make write-in votes difficult to cast may create a trap for the unwary: fill out the form incorrectly, and risk being disenfranchised. In this way, the "permit but discourage" regime discussed above does something quite different from either allowing write-ins or prohibiting them. We miss this point if we limit our analysis exclusively to the structural question of how open or closed a given electoral system is to write-in candidacies. On that dimension, "permit but discourage" is indeed a middle point between "allow" and "prohibit." But that question, while important, is not the only one in play.

When a state decides either to allow or to prohibit write-ins, no one is disenfranchised. To be sure, voting is, to a limited extent, a form of expression; a write-in ban affects voters' First Amendment interests. ^[11] But from the perspective of an individual voter, a write-in ban is not the same as being prevented from voting or having one's vote discarded. The experience of walking into the voting booth and not seeing one's preferred choice-or not seeing any choices that one likes-is not disenfranchisement. Indeed, in the age of negative advertising, it may be the usual experience of the typical American voter.

Courts can see the difference between a write-in ban like the one in Burdick, which channels choices but disenfranchises no one, and a rule that actually imperils some voters' right to cast a ballot and have it counted. Courts will scrutinize the latter rule more closely, for reasons that are rooted in a commitment to the equal citizenship of each individual voter. ^[12] Heightened scrutiny is particularly appropriate here because this trap for the unwary is likely to have a disproportionate effect on some of the sorts of voters whose status as full, equal citizens with the right to cast a ballot may already be relatively tenuous: citizens who are relatively less educated, who are very elderly, who have disabilities that make the mechanical aspects of casting the ballot tricky, and so forth. ^[13] The structural aims that were sufficient to uphold the rule in Burdick ^[14] are unlikely to be strong enough to justify a rule that places such a burden on voters' participation rights. Courts should, and likely would, conclude that a state cannot "permit but discourage" write-in votes in the manner suggested by the Alaska Republican Party. ^[15]

The logic here does not depend on any claim that disfavoring write-in candidates relative to candidates listed on the ballot is constitutionally problematic. Indeed, write-in status is inherently disfavored. That is, the state already steers voters toward the listed candidates by listing them on the ballot. Furthermore, nothing is stopping states from channeling voters' choices in a more decisive way by banning write-ins altogether. The constitutional problem arises because the state is discarding votes, thereby placing a burden on some voters' ability to be counted as full and equal citizens. If a state required all voters to write down their choices and spell them correctly, on pain of having their votes discarded, this problem would be worse, not better.

But now we are at the edge of a deeper and more interesting problem. Against what baseline does one measure a "burden"? Alaska had a relatively easy solution to the problem of throwing out votes unnecessarily: rely on an intent-of-the-voter...