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Why Don't We Defend Voting on the Grounds of Free Speech?

The vote is one of the central ways democracies give people a voice in their government. If we don't protect that voice where it matters most, free speech in America is an illusion.
A woman casts her ballot at a church polling station in Fairfax, Virginia, during the U.S. presidential election on November 8th, 2016.

A woman casts her ballot at a church polling station in Fairfax, Virginia, during the U.S. presidential election on November 8th, 2016.

What is the chief threat to free speech in this country?

Some might point to President Donald Trump's efforts to delegitimize and target the free press. Others express concerns about the alleged repression of conservative views on campus. But there is one obvious, serious, and sweeping problem that barely ever gets discussed as a free speech issue: restrictions on the right and ability to vote.

Voting in the United States generally is not treated as speech. But it should be, according to Armand Derfner, a civil rights attorney and a professor at the Charleston School of Law. Voting, Derfner says, "is the ultimate expression of a person's point of view." Voting is how people say, most directly, who they want to govern them. You would think, therefore, that voting would be the first speech right that the Constitution protects.

Unfortunately, courts haven't seen it that way. As Peter Scheer, former executive director of the First Amendment Coalition, explains, the 15th Amendment makes it very clear that racial discrimination in voting is unconstitutional, but "it's harder to find an obvious basis within the constitution for an emphasis, an affirmative emphasis, on maximizing voting participation." States therefore have a good deal of leeway to limit voting rights, since these have not traditionally been seen as a free speech issues.

As a result, American courts have repeatedly upheld voting restrictions. In 2013, the Supreme Court invalidated key sections of the Voting Rights Act of 1965, making it possible for Southern states to pass restrictive voter ID laws and erect other barriers making it difficult for many poor people and black people to vote. In 2016, Wisconsin's strict voter ID law prevented many poor and marginalized people from voting, which probably threw the state to Trump. Just before the 2018 mid-terms, the Supreme Court upheld a law in North Dakota that required voters to provide a residential street address—effectively disenfranchising many Native American voters on reservations, who often don't have street addresses.

As Derfner and his co-author J. Gerald Hebert note in a 2016 article in the Yale Law & Policy Review, "The right to vote has been described as 'fundamental,' by Congress and the Supreme Court, but ... the Supreme Court and other court decisions analyzing burdens on the right to vote do not give it the protection that fundamental rights ordinarily receive."

Voting restrictions are generally evaluated on a "rational basis" standard, which means that voting restrictions are upheld as long as the government can put forward any reason at all for them—including thoroughly debunked fears about voter fraud. Thus, Derfner says, in the 2008 case of Crawford v. Marion County, the Supreme Court upheld an onerous voter ID law intended to prevent in-person voter fraud, even though the court admitted Indiana had never had a single case of such fraud in its history.

"There is a reason to give the states some leeway and federal government some leeway in controlling the right to vote, because you have to have some restrictions," Derfner explains. States need to set voting times and voting places and control the registration process. But the courts have gone beyond that, to say that states can do anything that isn't explicitly discriminatory. As long as a voting law doesn't come out and say it's designed to stop black people from voting, the courts are likely to approve it.

Restrictions on free speech, on the other hand, require strict scrutiny. This means that the burden of proof is on the lawmakers to show that there is a compelling government interest at stake, and that the law is narrowly tailored to meet that interest.

And, in fact, courts do acknowledge free speech concerns in many issues related to voting. The Supreme Court has long held that spending on elections is free speech. In the 2010 decision Citizens United v. v. FEC, the court made a sweeping declaration that contributions to independent groups during campaigns cannot be capped because to do so would restrict free expression. And the court has also recognized that signing a petition to influence government actors has a free speech protection. In the case of Doe v. Reed, Chief Justice John Roberts stated in the majority opinion that "[T]he expression of a political view implicates a First Amendment right."

"So everything surrounding the vote seems to be free speech," Derfner says, "but when it comes to the vote itself, it's not. And what that means is, instead of looking at restrictions on voting skeptically, the Supreme Court instead says anything goes."

It seems strange that spending money to convince people to vote is protected as free speech, while voting itself is not. In fact, though, this reasoning is in line with the way free speech is discussed in the public sphere.

Free speech is generally framed as crucial because it allows important people with important ideas to arrive at reasoned, logical conclusions. Discussions about free speech often center on the rights of college professors and pundits—people who are supposed to have the status to put forward challenging ideas. Similarly, wealthy people are seen as important and justly influential, so stifling their speech—as campaign-finance laws were said to do—is therefore seen as dangerous.

In contrast, the speech of less influential people—prisoners, for example, or sex workers, or pain patients—is seen as less valuable. When you are nobody special, people have more trouble seeing the value of your voice. Thus, payments from the powerful are protected as speech, while voting—in which people without much influence or standing can finally express their own preferences—is not.

Still, there's some hope that courts might reconsider their stance. The Supreme Court has never ruled that voting is not free speech. In fact, in 1983, in Anderson v. Celebrezze, the Court ruled that independent parties' access to the ballot is protected by the First Amendment. Derfner says that subsequent courts have mostly ignored this ruling, but that it could serve as a precedent for protecting other voting rights.

"There have been some arguments raised in cases that say, 'Hey, wait a second, this is a free speech issue,' but those haven't gotten very far," Derfner says. "But maybe they will. They should!"

Recognizing voting as free speech would be a huge step forward in protecting the right to vote, amid ongoing right-wing efforts to restrict the vote and manipulate the electoral map to favor GOP candidates. It would also be a way to rethink what kinds of speech we see as most important and most worthy of protection. In a healthy society, we shouldn't just protect the speech of the wealthy. The vote is one of the central ways democracies give people a voice in their government. If we don't protect that voice where it matters most, free speech in America is an illusion.