Voting is Association

30 Pages Posted: 31 Aug 2016 Last revised: 30 Sep 2017

See all articles by Daniel P. Tokaji

Daniel P. Tokaji

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: August 30, 2016

Abstract

What’s the relationship between the First Amendment right to expressive association and the Fourteenth Amendment right to vote? It’s closer than you probably think. The Supreme Court employs a balancing test in constitutional challenges to a wide variety of election practices, including ballot access rules, blanket primaries, and voter identification. This standard is commonly referred to as “Anderson-Burdick” for the two main cases from which it derives, Anderson v. Celebrezze and Burdick v. Takushi.

Commonly overlooked is that the Anderson-Burdick standard is the offspring of a union between the Fourteenth Amendment right to vote and the First Amendment right of association. This article explores the origins, development, and subsequent obscuration of the relationship between voting and associational rights. Central to this story are two opinions by Justice John Paul Stevens, the first (Anderson) written early in his tenure on the Supreme Court and the second (Crawford v. Marion County Election Board) near the end. After canvassing the Court's voting-association cases, the article argues for renewed recognition of this link when it comes to contemporary burdens on participation, closing with some thoughts on the applicability of the First Amendment right of association to partisan gerrymandering claims.

Voting restrictions implicate expressive association to the extent they prevent voters from joining together with like-minded others, candidates, and political parties. Reviving the voting-association link would cast current voting rights cases in a different light, one that more accurately reflects the real-world dynamic in these cases. These disputes are not simply or even mainly about an individual’s right to cast a ballot. They are best understood as inter-party disputes, in which political insiders seek to block outsiders from aggregating their votes so as to challenge the dominant party. The focus would accordingly shift to a voting law or practice’s disparate impact on likely supporters of the non-dominant party, a question that has been in the background but not the foreground of most recent cases.

Keywords: voting, voting rights, election law, right to vote, First Amendment, association, voter ID, gerrymandering

JEL Classification: K00, K40, K49

Suggested Citation

Tokaji, Daniel P., Voting is Association (August 30, 2016). Ohio State Public Law Working Paper No. 364. Available at SSRN: https://ssrn.com/abstract=2832105 or http://dx.doi.org/10.2139/ssrn.2832105

Daniel P. Tokaji (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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