Why Doesn't the Law Give Full Free Speech Protection to Voters?


It seems like an obvious proposition, that a citizen registering to vote casting a ballot, is engaged in free speech, a fundamental right entitled to full protection under the First Amendment to the United States Constitution. The proposition seems especially obvious in light of the broad First Amendment protection extended to the dollars spent by financial contributors to influence our votes.

But that is not how the Supreme Court sees it. Spending in elections -- by candidates, political parties, individuals, corporations, labor unions, and others -- is treated as free speech entitled to broad First Amendment protection against state and federal limitation. Registering and voting, on the other hand, do not have such protection and can be restricted within states' broad discretion.

In the past few years, some states have enacted new obstacles, reversing our nation's long struggle to expand voter eligibility and participation. Current Supreme Court doctrine would give the states broad leeway to enact these restrictions. But, in light of the broad First Amendment protection given to political spending, isn't it time for the Court to re-examine its method of analyzing restrictions on the voters themselves?

To understand the difference we must to look at a Supreme Court doctrine called "strict scrutiny." When the Supreme Court classifies an activity as free speech entitled to First Amendment protection, the Court subjects any law restricting that activity to strict scrutiny. That means the law is viewed skeptically and is upheld only if the state can prove the law advances an actual "compelling interest" of the government, and does so by the least restrictive means possible. The state has the burden of proving both these facts. Political contributors get this protection, and almost all restrictions are held unconstitutional, especially nowadays.

Restrictions on voters would be analyzed the same way if voting were classified as free speech entitled to First Amendment protection. But it isn't. Instead, unless the Supreme Court decides that a particular voting restriction is too "severe" or actually discriminates, the Court rejects strict scrutiny. Instead, the voting restriction gets only a cursory look and is presumed valid as long as it has any conceivable purpose. The state need not choose the narrowest effective method, and the burden of proof on all issues is on the challenger, not the state.

The Supreme Court says elections have to be regulated in some ways to insure they are fair and orderly, which is true enough, but that fact should not have been an excuse to water down the fundamental right to vote, or do away with strict scrutiny of restrictions on that right. The need to insure orderly elections would simply be recognized as a "compelling interest," but the state would have to prove that the restriction met a real need and was not overbroad. The real life effects on voters would be taken seriously by the courts.

The meager protection of voters was highlighted four years ago, in 2008, in the case of Crawford v. Marion County Election Board, where the Supreme Court upheld Indiana's photo ID law by applying a deferential standard to the state law, rejecting the "strict scrutiny" that would have been required if the Court thought voting is an act of speech entitled to First Amendment protection.

Meanwhile, as voters' protection declined, a constitutional revolution was expanding political spenders' First Amendment protection far beyond the bounds of precedent. Most notably, in 2010, in Citizens United v. Federal Election Commission, the Court authorized unlimited use of corporate and union funds in political campaigns. The next year, in 2011, the Court struck down a matching fund provision of Arizona's public financing law on the ground that it might hamper contributors' ability to spend unlimited funds. Strict scrutiny carried the day against both laws.

The difference between deferential review of voting restrictions and strict scrutiny of campaign finance laws is dramatic. Dealing with the former, the Court readily accepted Indiana's claim that it needed a photo ID law to prevent impersonation at the polls (the only type of fraud a photo ID law can address) even though, as the Court itself said, there were no instances of voter impersonation in the history of Indiana, and essentially no instances of voter impersonation anywhere else. By contrast, in the two cases dealing with campaign finance laws, the laws' purpose of preventing corruption was simply swept aside by the Supreme Court with the bizarre statement that there is no such thing as corruption with regard to so-called independent expenditures because independent spenders do not coordinate with the candidate!

Not using strict scrutiny leaves too many opportunities for mischief or simple carelessness. Are hundreds of thousands of voters affected (for example, about 200,000 registered voters lack photo IDs in tiny South Carolina)? Is the Legislature picking and choosing who is burdened and is not (for example, in the Texas law, gun license IDs were valid but not state college student IDs). Without strict scrutiny, will these voters be protected? The Pennsylvania case shows this: The lower court judge first upheld that state's photo ID law based on the Supreme Court's Crawford case (no strict scrutiny), but said he would probably have decided the opposite way if he had used strict scrutiny. (Following a Pennsylvania Supreme Court appeal, he is due to rule again on Oct. 2.)

How can the dollars spent to sway our votes be sacrosanct if the votes themselves are neglected stepchildren? As the Supreme Court considers more challenges to voting restrictions in the coming terms, it should expand its understanding of the First Amendment to encompass the right to register and cast a ballot. Justice Kennedy previously dissented from a narrow reading of the right to cast an absentee ballot, and he may hold the key to this issue.

Allowing restrictions on voting rights to stand with little scrutiny is a disservice to voters, to logic, to the First Amendment and to our democracy.

Armand Derfner is a litigator specializing in class actions, especially in the areas of labor, employment, and consumer law. He has been practicing civil rights law for 40 years, as a staff lawyer for civil rights organizations in Mississippi and Washington, D.C., and in private practice in Charleston.  J. Gerald Hebert ("Gerry") is currently the Executive Director and Director of Litigation at the Campaign Legal Center, in Washington, DC. He joined the Legal Center in 2004.  From 1973 to 1994, Gerry served in the Department of Justice, where he served in many supervisory capacities, including Acting Chief, Deputy Chief, and Special Litigation Counsel in the Voting Section of the Civil Rights Division.  This opinion piece originally appeared in The Huffington Post on October 1, 2012.