This Note examines the Supreme Court decision in Burkick v. Takushi in detail and questions the Court's conclusion that the voters' interest in casting write-in votes is so slight that write-in bans are presumptively valid. The Note concludes that the Burdick decision is both inconsistent with the Court's previous ballot access jurisprudence, and restricts the electoral process at a time when voters are clamoring for more diverse choices in the voting booth. Section I of this Note briefly reviews a number of cases that considered the constitutionality of legislation governing candidate access to election ballots. The ballot access cases are relevant because federal courts considering write-in voting restrictions have adopted a standard of review originally tailored for ballot access restrictions. Section II describes the majority and dissenting opinions in Burdick. Section III analyzes the nature of write-in voting as an expression of political speech and association protected under the First and Fourteenth Amendments of the Constitution. This section will challenge the Burdick Court's interpretation of the standard of review applied to ballot access cases. Finally, this section demonstrates that the Supreme Court failed to correctly weigh the injury to voters imposed by the write-in ban against the relatively insignificant state interest in banning such votes.
15 W. New Eng. L. Rev. 129 (1993)