Campaign Regulation

Neither the Constitution nor the Bill of Rights explicitly states that a right to vote exists, but the Supreme Court in Reynolds v. Sims (1964) and Harper v. Virginia Board of Elections (1966) has ruled that Article 1, section 2, of the Constitution gives citizens the right to vote for members of Congress. Although voting rights per se do not present First Amendment challenges, related issues, such as ballot access, do. In Burdick v. Takushi (1992), the Court ruled that a state law prohibiting voters from casting write-in ballots did not violate the First Amendment. In Burson v. Freeman (1992), it held that a Tennessee law prohibiting the solicitation of votes within 100 feet of a polling place on election day was narrowly tailored to prevent voter intimidation.

In Bullock v. Carter (1972) and Harper v. Virginia Board of Elections (1966), the Court ruled as unconstitutional the imposition of poll taxes and filing fees to run for office, respectively. Although relying upon the equal protection clause of the Fourteenth Amendment, the justices noted that the practices also affected First Amendment activities. Beginning in the 1960s, the Court increasingly addressed the rights of independent and third-party candidates to appear on the ballot. In Williams v. Rhodes (1968), the Court used the equal protection clause to invalidate state laws mandating extensive numbers of signatures and the formation of party committees far in advance of elections that would have made it virtually impossible for Alabama governor George Wallace to appear on the Ohio presidential ballot. In Storer v. Brown (1974), the Court upheld a state law requiring an [Page 235] independent candidate to demonstrate disaffiliation from a party for at least one year on the basis that the state’s compelling interest in preventing party factionalism outweighed the competing First Amendment right to run for office.

In contrast, in Anderson v. Celebrezze (1983), the Court struck down a state law imposing early filing requirements for an independent presidential candidate to appear on the general election ballot. The justices ruled that the First Amendment rights of independent candidate John Anderson and his supporters outweighed the interest of Illinois in imposing an early filing deadline.

In some cases, independent and third-party candidates are required to file a requisite number of signatures to appear on the ballot. If the minimum threshold is too high, the courts may intervene. For example, in Illinois State Board of Elections v. Socialist Workers Party (1979), the Court ruled that a state law requiring a minor party to obtain more than 25,000 signatures to get on the ballot violated their First Amendment rights. A few years later, however, the Court decided in Norman v. Reed (1992) that requiring 25,000 signatures within the city of Chicago to appear on the ballot was not a First Amendment violation.

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