Should we reconsider Burdick in light of Alaska's results?
Burdick v. Takushi, 504 U.S. 428 (1992) upheld a First Amendment challenge to Hawai'i's election laws that prohibit write-in votes.
Now that a United States Senator has been re-elected thanks only to Alaska law permitting write-in votes, clearly establishing for a generation that the write-in vote is not the ability to cast a protect vote for Donald Duck but rather the ability for the electorate to select a candidate, perhaps the Supreme Court should recalibrate the burden placed on First Amendment freedoms by restrictions on write-in votes.
Similarly, the election of Joseph Lieberman (I-CT) should also make clear the impact of sore-loser laws that restrict the ability of the electorate to select a candidate as an independent (or a write-in) who lost a bid for nomination in a primary election.
I would hope that these two high-profile elections will impact the views of the Supreme Court Justices and their clerks on the real-world First Amendment burdens placed on the electorate by these restrictions.
I mean, the government changing the composition of the United States Senate and thwarting the will of a plurality of the electorate is about as big a First Amendment burden one can imagine in this context. Administrative convenience as a state interest looks a lot less compelling now that Alaska and Connecticut have shown how citizens can elect the candidate of their choice in ways that other states can make illegal.
Dan
P.S. Thanks as always to Richard Winger for inspiring these thoughts.
On Fri, Nov 5, 2010 at 7:04 PM, Richard Winger
<richardwinger@yahoo.com> wrote:
I just noticed on the Alaska Elections Office webpage that there are only 632 total write-ins for Governor. That compares with 83,201 write-ins for US Senate.
That write-in gubernatorial total is evidence, it seems to me, that the overwhelming majority of US Senate write-ins are for Lisa Murkowski. There just aren't that many voters who want to do a miscellaneous write-in vote, generally, for important office, as seen by the gubernatorial write-in total.
Joe Miller has 69,762 votes.
|
_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law
--
Dan Johnson-Weinberger
Attorney at Law
111 West Washington, Suite 1920
Chicago, Illinois 60602
312.867.5377 (office)
312.933.4890 (mobile)
312.794.7064 (fax)