Abstract

A ballot ostensibly has a simple purpose: it is the means by which the state determines the winners and the losers of an election. But the words on the ballot have the power to influence voters. The ballot includes the candidate's name, often the candidate's party preference, and sometimes information about a candidate's incumbency or occupation. These words are usually selected by the candidate to communicate information to the voter in the voting booth, but they are also subject to regulation by the state and potentially require consent from a political party. Ballots, then, include expressive elements, something this Article calls "ballot speech"—content that a candidate or party desires to communicate to voters by means of the ballot.

Judicial opinions and academic commentary typically examine ballot speech not as speech, but principally as the incidental byproduct of election administration, subject to regulation in a balancing of interests. This Article suggests that ballot speech merits a different, more robust defense from the whims of election administrators and the deference of courts. Ballot speech should receive protection as speech under the First Amendment, rather than as merely one element of the free association that candidates and voters share at the ballot box. The ballot more closely resembles a nonpublic forum. And state laws that unreasonably stifle the expression of candidates and voters, that enhance some candidates at the expense of others, or that attempt to put a thumb on the scale of the outcome of an election, cannot stand. It is time to recognize this new definition of ballot speech, and to provide an appropriate legal framework to protect it.

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