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Hastings Law Journal

Authors

Michele Logan

Abstract

The recent surge of voter interest in alternative candidates, as evidenced by Ross Perot's continued political presence, emphasizes the importance of voters' right to vote for whom they please-whether for a slated or write-in candidate. Currently, at least four states ban write-in voting completely, and many states place various restrictions on such voting. Arguments have been advanced that restricting write-in voting violates First Amendment rights to free political speech; however, the Supreme Court in Burdick v. Takushi approved such restriction on the right to vote. The Court found that the state interest in regulating elections outweighed the voters' interest in write-in votes.

This Note argues that bans on write-in voting violate the First Amendment right to free political speech. The Note examines the relationship between the First Amendment and the right to vote, considering the Fourth and Ninth Circuit applications of First Amendment doctrine to write-in voting. While the state may regulate the "time, place, and manner" of elections, the First Amendment protection of political speech should protect write-in voting. The Note concludes that the Supreme Court wrongly decided Burdick, and that this case must be overturned.

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