This ballot from Florida in the 2000 general election is example from a state that allows a voter to "write in" a candidate. A Honolulu citizen who wished to write in a candidate's name in the 1986 election sued the state of Hawaii which banned write-ins. Alan Burdick claimed his First Amendment expressive and associational rights were restricted because he was prevented for casting a ballot for a candidate of his choice. But the Supreme Court upheld Hawaii's election regulation as constitutional. (Photo in public domain)
In Burdick v. Takushi, 504 U.S. 428 (1992), the Supreme Court upheld Hawaii’s ban on write-in voting, deciding that the state possessed important regulatory interests for the ban. The Court further ruled that such bans do not violate voters’ First Amendment rights of free expression and political association.
Burdick said ban on write-in candidates restricted First Amendment rights
Alan Burdick, a citizen of Honolulu, wished to write in a candidate’s name in the 1986 election. When he was informed that the state’s electoral laws did not allow write-in votes on primary or general election ballots, he filed a lawsuit against the state director of elections.
Burdick alleged this ban restricted his First Amendment expressive and associational rights because it prevented his casting a ballot for his candidate of choice. The federal district court agreed with Burdick, but the 9th U.S Circuit Court of Appeals reversed, holding that the ban was “justified” in light of the totality of the state’s election scheme and the availability of various other means that Burdick had to express his opinions.
Court said state had regulatory interests to justify the ban
Writing for the six-justice majority, Justice Byron R. White declared that when states impose “reasonable, nondiscriminatory” burdens on individuals’ right to vote in an effort to provide stable and efficient electoral systems, they need only to demonstrate their “regulatory interests are generally sufficient to justify the restrictions.”
Applying this standard to Burdick’s claim, the Court ruled the restrictions placed on voters in Hawaii were minimal because the state provided numerous ways for candidates to get their names on the primary ballot.
Therefore, White reasoned, the only voters wishing to write in a candidate’s name would be those who had not decided on their candidate until days before the primary.
In addition, the state’s interests in preserving the general election ballot for “major struggles,” thwarting sore-loser candidacies, and keeping unrestrained factionalism at bay were sufficient to justify the write-in ban.
Dissenters said the ban placed burdens on voters
Writing for the three dissenters, Justice Anthony M. Kennedy argued that the write-in prohibition placed significant burdens on Hawaiian voters as candidates, typically Democrats, often run unopposed. Voters may only vote for a candidate they do not like or cast a blank ballot. Kennedy concluded that “at least some voters would cast write-in votes for other candidates if given this option.”
The ban, therefore, prohibits voters from participating in the process in a “meaningful manner.” Although Kennedy agreed with the majority’s standard regarding restrictions, he argued that the write-in ban placed significant burdens on voters and that the state’s interests did not rise to the level of “sufficient importance.”
This article was originally published in 2009. Kyle L. Kreider is a Professor of Political Science at Wilkes University, where he teaches the Constitutional Law classes. His most recent book is Voting Rights in America: A Reference Handbook, co-authored with Richard A. Glenn (ABC-CLIO, 2020).Send Feedback on this article