BURDICK v. TAKUSHI, DIRECTOR OF ELECTIONS OF HAWAII
Legal provision: Association
Argument of Arthur N. Eisenberg
Chief Justice Rehnquist: We'll hear argument now in No. 91-535, Alan B. Burdick v. Morris Takushi.
Mr. Eisenberg: Mr. Chief Justice, and may it please the Court:
At issue in this case is the constitutionality of Hawaii's total prohibition against write-in voting.
This case began in 1986.
In the general election that year held in Hawaii with respect to State legislative offices, one-third of those elections were uncontested; a single candidate was running unopposed.
And that pattern of uncontested elections was consistent with the pattern that prevailed in the 1982 elections and in the 1984 general elections with respect to State legislative offices.
One of the uncontested elections in 1986 occurred in the State legislative district, the State House of Representatives district in which Mr. Burdick lived.
A single candidate was running unopposed.
Mr. Burdick had no interest in voting for that candidate.
He did, however, want to participate in the election, and he saw his only opportunity to participate as the casting of a write-in ballot to express his opposition to the single candidate running unopposed, and to express support for an alternative candidate.
Hawaii, unfortunately, has a total prohibition against all write-in voting in all elections and under all circumstances, and that total prohibition was invoked to bar his right to exercise a write-in ballot.
This total prohibition, therefore, denied Mr. Burdick the opportunity to vote for the candidate of his choice, or in the alternative, to cast a ballot as a protest vote.
Moreover, one of the unique functions of write-in voting in our society is that it serves as a safety valve mechanism, to permit voters to respond to new issues or changed circumstances that arise after the close of the petitioning period but before the election.
In this case, Mr. Burdick did not realize that a single candidate was running unopposed until the close of the petitioning period and still Hawaii invoked its total prohibition against write-in voting, even to deny the use of the write-in ballot as a safety valve mechanism.
Unknown Speaker: Mr. Eisenberg, are you asserting the right just to make a write-in vote for someone who would otherwise be qualified to be on the ballot?
Mr. Eisenberg: We think that Mr. Burdick has a right to vote for somebody who is unqualified as well as for somebody who is qualified.
We think that if Mr. Burdick--
Unknown Speaker: For someone, who under State law could not qualify to occupy the office?
Mr. Eisenberg: --That's right.
In that instance, the vote would simply be a protest vote, a vote no.
Unknown Speaker: Donald Duck.
Mickey Mouse, Donald Duck, whatever, that is fine.
You are claiming that right?
Mr. Eisenberg: We are claiming that the individual has a right to vote for Mickey Mouse or Donald Duck.
How the State chooses to record that vote is--
Unknown Speaker: I suppose that anyone can write something on the ballot.
Now you are going further than that, you want the State to have to count it?
Mr. Eisenberg: --Well, there are several things that are implicated in the phrase, count it.
We don't insist that Mr. Burdick has the right to have somebody who is ineligible to hold office, hold office.
So his vote isn't counted towards the election of that person.
But we do think that the right to vote embraces both a right to choose, and if there is no meaningful choice, a right to say no, and if Mr. Burdick chooses to say no by voting for an unqualified candidate or a fictional character, Mr. Burdick can do so.
The State should record his vote, we think, as a protest vote.
The State has an obligation to record that vote as a protest vote.
Unknown Speaker: You mean quite literally to set up a column in the returns that it gives to the reporters and certifies, to set up a column as protest vote?
Mr. Eisenberg: Well, there are several approaches.
The State of Virginia simply records every vote as it is written in, so that if somebody votes for a fictional character, if somebody votes for an unqualified candidate--
Unknown Speaker: You think the Constitution requires every State to do that?
Mr. Eisenberg: --We think that the Constitution, at the very least, requires that the State acknowledge the protest vote, the vote no.
We think if elections are about voting either in support or against candidates, then the vote against a candidate must be recorded somehow.
It needn't have a full list--
Unknown Speaker: Just a minute, I am trying to ask you a question.
Mr. Eisenberg: --I am sorry.
I am sorry.
Unknown Speaker: What provision of the Constitution do you think it is that requires that?
Mr. Eisenberg: We think that the textual source of our constitutional claim is either the First Amendment or the equal protection clause.
Unknown Speaker: Have we ever held that the First Amendment establishes a right to vote?
Mr. Eisenberg: Well, we have--
Unknown Speaker: Have we?
Mr. Eisenberg: --We have used the equal protection clause to find that there was a right to a meaningful vote.
Unknown Speaker: I wasn't asking you about the... I didn't ask you about the equal protection, I asked you about the First Amendment.
Mr. Eisenberg: Well, I think we have talked about the First Amendment right of political participation in a number of cases, and in Anderson against Celebrezze, the Court identified the right to vote, the right to run for office, the right to associate in support of a candidate, all as an amalgam of rights protected by the First Amendment.
Unknown Speaker: Is the theory behind your answer a theory of effective franchise or solely a theory of First Amendment expression, in effect, quite independent of the act of voting?
Mr. Eisenberg: I think, Your Honor, it is both.
It involves the right to cast a meaningful ballot, which is in some sense, the right of effective franchise.
Unknown Speaker: Well, to the extent that your argument is based on a meaningful ballot kind of argument, why should the standards be any different from... or perhaps you are not saying they should be, but should the standards be any different from the ballot access cases?
Mr. Eisenberg: We think that the overarching standard employed by this Court even in ballot access cases generally is Anderson against Celebrezze which--
Unknown Speaker: Do you think under the ballot access cases, we will assume it is some real individual, not Donald Duck, decided at the same time your client did that he would like to be on the ballot and came forward under, given the statutory scheme of Hawaii, that he would have any claim on the ballot access theory?
Mr. Eisenberg: --Well, we think that he may or may not have a claim under a ballot access theory, but that is because there are very different interests that apply when the State is regulating access to the ballot in a formal printed way.
Unknown Speaker: Well, but the fact is that the ultimate value to be served by ballot access is effective franchise.
I mean, it is ultimately a public interest and not merely the interest of the individual who wants to be on the ballot, and bearing that in mind, number 1, shouldn't the standards be the same whether we are dealing with a person who wants to be on the ballot or the person who wants to write in a name.
Wouldn't you agree that they should be essentially the same standards?
Mr. Eisenberg: We do agree that the standards are the same, and the standard is Anderson against Celebrezze.
Unknown Speaker: Now if they are the same standards, isn't it clear that under the Hawaii statute, the access to the ballot is sufficiently free so that the individual who woke up after the primary period and said, gee, nobody is running, I want my name on there, that individual wouldn't have any claim under the... given the Hawaii statute.
Mr. Eisenberg: Well, we think that that individual should have a claim, because we think that write-in voting provides an important safety valve mechanism which should be recognized--
Unknown Speaker: So that you basically want us to expand the law, not merely with respect to somebody who wishes to write in, but you want us to expand ballot access law beyond any point that it has reached thus far.
Mr. Eisenberg: --Well, ballot access law as we have generally understood it involves regulating the formal printed ballot.
Unknown Speaker: What's the answer to my question?
I mean, you do basically want an expansion of ballot access from anything that our cases have held up to this point, isn't that correct?
Mr. Eisenberg: If ballot access is to be defined more broadly, as Your Honor is suggesting, yes, that is correct.
Unknown Speaker: I thought you were accepting that.
Mr. Eisenberg: That would be correct, but we think that the overarching standard is the Anderson against Celebrezze standard, which requires in this instance the State of Hawaii to come forward with some showing that the total prohibition that it imposes is necessary to the advancement of some substantial governmental interest, and that is a showing that the State of Hawaii cannot make in this case.
That is a showing that the State of Hawaii has not made in this case.
Hawaii advances four interests in support of its claim.
First, an interest in limiting factionalism by prohibiting sore-loser candidacies; second, an interest in protecting political parties against interparty raiding; third, an interest in an informed electorate; fourth, an interest in protecting Hawaii's runaway election provisions.
Unknown Speaker: With respect to each of those interests, do we apply strict scrutiny, rational-basis scrutiny or some other form of scrutiny to assessing the validity of Hawaii's interest?
Mr. Eisenberg: We think we apply Anderson against Celebrezze with teeth, which approaches strict scrutiny, which is the standard imposed in Tashjian and in Eu.
Unknown Speaker: Is that under the First Amendment prong of your argument or under the right-to-vote prong?
Mr. Eisenberg: The Court has in Anderson and most recently in Norman against Reed suggested that while it looks first these days to the First Amendment as the source, as the textual source for the protection of the rights of electoral participation, it would reach the same result under the equal protection clause, and it doesn't much matter whether you call it a right to vote or an equal right to vote.
In both instances, we think that Hawaii is obligated to show that the total prohibition is necessary to the advancement of substantial governmental interests, and it has not made that showing in this case.
The interest in an informed electorate, while a worthwhile goal, cannot justify Hawaii's blanket prohibition, even in circumstances where there are no sore-loser candidates.
If the State is concerned about sore-loser candidates it can enact a narrow sore-loser provision.
The interest in protecting parties against interparty raiding has no application whatever to a prohibition that would be extended to a general election.
Interparty raiding is a concern about voting in primary elections.
So again, Hawaii's total prohibition sweeps too broadly.
We think that there is another consideration in this regard, and that is that at least one of the three established parties in Hawaii, the Libertarian Party, has now expressly requested that voters in its primary elections be permitted to cast write-in ballots.
So Hawaii, it seems to us, now has a Tashjian problem, a problem confronted by this Court in Tashjian where the State, in that instance, the State of Connecticut, was imposing a restrictive measure on ballot access, and even in circumstances where the party had no interest in the protection that the State was affording it.
And so for these reasons we think that the interest in protecting against interparty raiding is insufficient in this case.
The interest in an informed electorate, again, while a worthwhile goal, we think cannot be justified here.
If the State is concerned about voters voting in an ignorant way, that concern seems improbable, because it is not likely that somebody is going to vote for somebody that they know nothing about, when you have to actually go to the trouble of casting a write-in ballot.
If the concern is for the--
Unknown Speaker: Isn't it likely that a write-in voter is probably better informed than other voters?
Mr. Eisenberg: --It is likely that a write-in voter who goes to the trouble of casting a write-in vote is better informed than other voters.
Moreover, if the State were concerned about the body politic in general, that is to say, if the State were concerned that everybody ought to know that are surreptitious write-in candidates afoot, then the State can do, the State of Hawaii can do what approximately 20 other States do: it can require that write-in candidates file a declaration of candidacy shortly before the election.
This mechanism satisfies the safety valve concern.
It allows write-in candidates to enter the race after the petitioning process is closed where new circumstances or new issues arise, and it provides that flexibility.
And if the State were concerned about an informed electorate in that regard, informing the electorate that there are other write-in candidates or indeed there are other candidates beyond those who are simply listed on the ballot, Hawaii can do, as I say, what 20 other States have done.
Finally, the interest in protecting Hawaii's runaway election provisions cannot justify Hawaii's policy.
To the degree that Hawaii has abolished general elections in these circumstances, there is no occasion to cast a write-in ballot, so this last concern about Hawaii, this concern about their provisions with respect to runaway elections, is irrelevant.
In fact, Hawaii's runaway election provisions, provisions which permit a candidate who emerges from the primary election as a victor and unopposed for at least county offices and State legislative offices, not to have to stand for election in the general election, that provision argues more forcefully in favor of a right to cast a write-in ballot in these dispositive primary elections, because in Hawaii, given the pattern of uncontested elections, and given these runaway election provisions, the right to cast a write-in ballot at the primary level is very, very important.
With the Court's permission, I should like to reserve--
Unknown Speaker: May I ask a question, just to be sure I understand your position.
Do you think that Hawaii could prohibit anyone from qualifying for and holding office unless they have followed Hawaii's procedure for getting on the election ballot?
Mr. Eisenberg: --If Hawaii had a write-in candidate registration requirement, a requirement that a write-in candidate declare and if the candidate fails to comply, it seems to us that Hawaii can do what these 20 other States do, which is to declare the individual ineligible to hold office.
We have no quarrel with that.
Unknown Speaker: But if it were a... not a voter standing here today, but someone who would like to be a candidate and hold office, you would take the position that Hawaii's present laws concerning who goes on the general election ballot and therefore who can serve in those offices on the ballot, you would take the position that that is unconstitutional?
Mr. Eisenberg: We think to the degree that Hawaii does not provide for the safety valve mechanism of a write-in ballot, to permit the candidate, in Your Honor's hypothetical, to enter the race as a write-in candidate after the petitioning period is closed, which in Hawaii is 60 days before the primary election, 105 days before the general election, we think that Hawaii's provisions are too restrictive.
Unknown Speaker: And how many States have similar prohibitions against all write-in?
Is that a total of five States?
Mr. Eisenberg: There is a total of... there are four States that by statute prohibit write-ins and we are informed that Louisiana, as a matter of practice, also prohibits write-in voting.
Unknown Speaker: Is it part of your case that the State has to count these votes or does the State just have to allow them to be cast?
Mr. Eisenberg: We think that the State has to count the votes, clearly a vote for a qualified candidate should surely be counted.
But we also think that the State should have to count the protest vote, the vote no.
The State may be able to put it into a broad category of no votes, but the State has to recognize that there is a body of dissenters out there who don't like the choices that have been provided to them.
Unknown Speaker: Why does it have to provide this forum for the dissenters in its election machine?
What if the State says, gee, it's just a lot cheaper to buy time for them on some television channel, so election eve, everybody who wants to vote no will be given time to come in and protest?
Mr. Eisenberg: Because voting is about voting for or against the candidates who are holding themselves up--
Unknown Speaker: Voting is about getting somebody elected.
It's about choosing someone to govern you.
It's not about protesting it.
Mr. Eisenberg: --We think, Your Honor, that it is about both.
And in fact, this Court has recognized that the electoral process extends beyond simply choosing somebody who is going to get elected.
In Anderson against Celebrezze, this Court recognized the important expressive aspects of the electoral process, engendering new issues into the process, in putting forth new ideas.
And so this Court has granted First Amendment recognition to--
Unknown Speaker: How did we recognize that in Anderson?
Mr. Eisenberg: --Well, because... there was a great deal of discussion of the role of third parties and what the Court called third-force candidacies in talking about the importance of John Anderson's campaign in 1980.
Unknown Speaker: Well, sure, but the importance there is that by discussing different issues, you may elect a different person.
There is nothing in that opinion that suggests anything about the ability of the people to protest, to use the election as a protest mechanism, is there?
Mr. Eisenberg: Not specifically, Your Honor.
But the very definition of an election, in our view, embraces the right to choose and again, if there is no meaningful choice, the right to say no, and that right to say no has to be reflected somewhere on the books of the State.
It is a very dangerous notion, both in First Amendment terms and in terms of higher democratic values, for the State to try to sweep that dissent under the rug, to pretend it doesn't exist.
When Hawaii says to Mr. Burdick, in the interest of promoting consensus, you can vote for only one candidate or not vote at all, consensus may be a very valuable interest, but consensus depends upon consent, and the State has an obligation as well to recognize the dissenting members of its society in the important aspect of voting.
Unknown Speaker: Mr. Eisenberg, if the essence of your claim is the right to be heard in saying no, why isn't the statement of no sufficiently recorded simply if the State records a blank ballot?
By doing that, they are saying, he has said no to the candidate on the ballot.
Mr. Eisenberg: Because a blank ballot signifies more than a vote no.
A person can simply fail to vote because they overlooked that particular election on the ballot.
The voter may have simply--
Unknown Speaker: Yes, and the voter may get the name wrong when the voter writes the name in.
I mean, no method of expression is absolutely foolproof, but by and large everybody understands that most people don't cast blank ballots unless they do so for the sake of saying, I don't want to elect any of these people.
And isn't that expression recorded when either a blank ballot is recorded as such or the State simply says there were X ballots cast and the total of votes for the candidate is something less than that?
Mr. Eisenberg: --We think that... Hawaii does count blank ballots, Your Honor, but we think that a blank ballot is not sufficiently understood as a dissent because there may be a variety of reasons why an individual may leave the place blank.
The person may have forgotten.
The person may have reached no conclusion, but an expression of dissent is clear and it ought to be recognized.
Unknown Speaker: Did you say there were 5 States that currently don't allow write-ins.
What is the historical practice?
Is it a relatively new phenomenon, not to allow write-ins?
Mr. Eisenberg: No, actually, at least one of the States that prohibits write-ins has prohibited it from the inception of the Australian ballot.
Most States, as we indicated in our brief, responded to the Australian ballot reform, to the State-prepared ballot, by recognizing that there had to be some sort of safety valve mechanism, both for the reasons I have suggested and to give flexibility to the electoral process, to give the voter an opportunity to choose, but some--
Unknown Speaker: And before the Australian ballot, you could always, of course, cast a vote for whomever you wanted.
Mr. Eisenberg: --That's correct.
That is our understanding of the history.
And with the advent of the Australian ballot, the question of how voter choice would ultimately be recognized, and most States recognized that write-in votes preserve voter choice.
But a few States did not even at the outset.
And in Oklahoma, for example, the interpretation by case law was that a write-in was a defacement of the ballot and therefore voided the ballot.
And in South Dakota, I don't quite, Your Honor, remember the basic reason, but it was a turn-of-the-century decision of the highest court in that State.
With the Court's permission, I would still like to reserve the balance of my time.
Unknown Speaker: Very well, Mr. Eisenberg.
Mr. Michaels, we will hear from you.
Argument of Steven S. Michaels
Mr. Michaels: Thank you, Mr. Chief Justice, and may it please the Court:
At the outset of our argument, we would like to emphasize three very brief points that we would like to carry through our discussion with the Court, and which we would urge the Court to keep in mind as it deliberates upon this important case.
First, Hawaii is simply not in a small minority of States when it comes to the issue that is actually presented by this case, because rather than the mere 4 States that Mr. Eisenberg refers to, well over 30 States, and in fact, by our count, 37 States do not permit what Mr. Burdick claims the Constitution compels, namely the right at primaries and general elections to vote for whomever one pleases.
Second, if this case is about voting, then this case is governed by this Court's ballot access decisions.
Voting is very different from generalized speech.
It is the casting of legally effective speech, and under the ballot access decisions of this Court, Hawaii's law is plainly constitutional because viewed as a whole it does not substantially burden Mr. Burdick's ability to cast an effective vote, and if there is any substantial burden, those burdens are justified by Hawaii's compelling interest in narrowing the field of eligible candidates for the general election and promoting an informed vote.
And third, to the degree Mr. Burdick is saying that Hawaii need not seat a write-in candidate who would get a certain number of votes, but that nonetheless, Hawaii must count up and publish that speech, this case is not governed by the questions of substantial burdens or the issue of compelling State interests.
It is merely controlled by the question established by this Court's public forum cases, namely whether Hawaii has acted neutrally in excluding the purely advisory question from the ballot, I quote, if you don't like all of the people on this list, who would you vote for?
That advisory question Hawaii has excluded in a neutral fashion, and because the answer... that answer to the public forum question runs in our favor, Hawaii's law is constitutional and Mr. Burdick is entitled to no relief from the Federal courts.
As the argument in the briefs and the discussion has established, it has to be the case that States have the authority under our Constitution to exclude the ability of voters to cast write-in votes for broad classes of candidates.
In fact, Mr. Burdick really doesn't contend otherwise.
He says that we need not seat ineligible candidates.
We need not seat primary losers, and we need not seat late filers.
And if one just looks, for example, at what the right to vote means in our country, it has to mean that.
Because in our Nation, and as this Court has defined what voting means in a constitutional sense, the right to vote is preservative of other rights, as this Court said in the Yick Wo v. Hopkins case, because the right to vote is legally effective speech.
It is the right, when joined with other votes, to transfer power.
Now it is true that not all votes end up in seating a particular candidate, but the reason politicians worry about votes as opposed to just ordinary speech, which is nonetheless very important, is the fact that votes, if there are enough of them, put you out of a job.
We have eligibility rules in our Nation for a variety of reasons.
We have them because some people, we have determined as a constitutional matter, don't have enough experience.
But we also have eligibility rules that would serve to eliminate classes of candidates because they have too much experience, term limits for example.
And one of the great ironies of this case, if write-in voting really means the right to vote for whomever one pleases, is that the term limit movement, which is a widespread movement across this Nation, would be shut down at the outset as a matter of constitutional law.
Unknown Speaker: Why would that be--
--I don't understand that, explain that to me.
Mr. Michaels: --Well, the petitioner, we think has essentially conceded that Hawaii need not seat anyone who in the 1994 election would vote by write-in for Governor Waihee.
His time has come to an end at that time, and for that reason, the term limit is an effective ban that Mr. Burdick agrees Hawaii can effectuate by prohibiting votes for that category of candidates.
What he is saying, Hawaii must count up all the protest speech that would be cast at that time for people that want Governor Waihee to keep serving, but we need not seat Governor Waihee for a third term.
And what we are contending to the Court is that that protest speech is a public forum question.
It is not a voting question because what is being cast by that protest speech is not a vote at all.
I hope I answered the question.
Unknown Speaker: You haven't at all.
You agree, I think you stated expressly in your answer that you understand that they are not claiming that the person for whom the write-in vote is cast must by the same reasoning be seated in office if there is a sufficient number, or would otherwise be a sufficient number of write-in votes to elect the person.
You understand them explaining that?
Mr. Michaels: We understand that concession.
Unknown Speaker: As long as that concession is made, how does their argument threaten the term limit?
In other words, the former governor isn't going to have to go back to the State House on their theory, it is just that everybody is going to know that a lot of people wish he could.
Mr. Michaels: That's true... well, we do accept the concessions.
I suppose my argument was even if they hadn't conceded that, they would have to concede that.
Unknown Speaker: Maybe your argument was just hyperbole.
Mr. Michaels: There is probably a little bit of that on both sides, but I accept the criticism.
Unknown Speaker: I wasn't worried about the multiterm congressman, I was worried about Donald Duck.
That is really scary.
Mr. Michaels: The point that we would emphasize to the Court also in considering this case is that this is very... at its outset, a facial challenge to Hawaii's ban on write-in voting.
The petitioner, even in the 1986 State House race that was before the court, never said who he wanted to vote for, never said whether the person he wanted to vote for was in fact Donald Duck or someone who was not eligible or so on.
And under that situation, the Court should not be speculating as to all the possible ranges of situations in which our law might operate in a tough manner.
On a facial challenge, you look to see whether there is any circumstance in which the law can be validly applied, and the petitioner has virtually conceded that there are large numbers of cases in which it can.
Secondly, the petitioner did not make any record below concerning the burden that our law may impose upon him.
There was none of the typical testimony or evidence that one finds in the voting cases that have come up through the courts of appeals, that we really tried to get the signatures but we couldn't; it was too hard to get the signatures at that time of year.
None of that... there is no such testimony in this record.
And the record from our side of the case shows that there are large numbers of third parties that exist and have existed in Hawaii and large numbers of nonpartisan candidates who make it through the primary stage.
Our Hawaii law is structured around a four-part process; the party petition process which commences with the filing of the party petitions in April; there is the candidate filing deadline in July; there is the primary in September; and then the general election.
And Hawaii's law should be particularly amenable to being sustained by this Court because it creates two cumulative opportunities for voters like Mr. Burdick to get the candidates they want on the ballot.
We do have a petition route, and you can guarantee access for your chosen candidates by filing the petitions equal to 1 percent of the general electorate vote by April, and we have a primary route.
And the routes are structured in a manner so that those persons who try to file for that automatic access in April have that 90-day period between the April deadline and the July candidate filing deadline in which all of the litigation that typically occurs about petitions must occur.
The lieutenant governor must make his decision on the petitions within 30 days.
There is an administrative appeal authorized under our little APA for the last 60 days; and for those persons who are disqualified from that automatic access by the April deadline, they have the right to bail out and get back into the game by filing for a nonpartisan slot.
And what we would emphasize to the Court also is that you can file a party petition even if you are just a single candidate.
This is not the situation that the Court referred to in Storer v. Brown where you have to bring all this party baggage with you to file at the April deadline.
Unknown Speaker: Could you explain something to me, General Michaels, just, your primaries are September?
Mr. Michaels: That's right.
Unknown Speaker: And your general election is in November, right?
Mr. Michaels: Right.
Unknown Speaker: What safety valve is there for the unlikely contingency that on October 1st the two principal candidates are either killed in an airplane accident or suddenly revealed to be armed robbers or some very dramatic thing that would convince 90 percent of the people in Hawaii they didn't want to vote for him.
What can be done?
Mr. Michaels: Well, Your Honor raised two hypotheticals and the statute deals with them differently.
In the case of death, withdrawal or substitution, the relevant statutes are Hawaii revised statute sections 11-117 and 11-118, which appear in our brief.
And the way those work for those three categories of postfiling events, there are rules of succession.
Within a certain number of days, the candidate can withdraw and the party can actually get a new name on the ballot.
It doesn't work for independent candidacies because of the way the independent candidacies are structured, that is it--
Unknown Speaker: Let me just change the question a little bit.
Assume they don't withdraw.
The two candidates that survived, or just some very dramatic incident that makes them extraordinarily unpopular with the electorate, they are revealed to have been involved in something very unusual, is there any safety valve?
I mean, you don't have a write-in, so is there any safety valve by which some other candidate could appeal to the electorate?
Mr. Michaels: --The law does not allow that, and if I may respond further to explain why, Hawaii's law is set up sort of as a corollary to Abraham Lincoln's famous saying, you can fool all of the people some of the time, and some of the people all of the time.
Our theory behind our law is that you are going to fool a lot less of the people all of the time if there is mandatory competition between the candidates.
And it is true that there is a gap time at which things can't be changed, and at that point the processes of impeachment and recall are the recourses for the electorate.
This is a problem, of course, that we have in between elections generally in this Nation.
Unknown Speaker: Of course, that startling disclosure might just as well occur the day after the election as a week before the election and you are still in the same situation.
That is a problem that I guess can't be avoided.
Mr. Michaels: It is a problem of republican forms of government, small r.
Unknown Speaker: But it is a problem that every State that has write-in ballots has a solution for it up to the election date.
Mr. Michaels: Well, not in 35 States because, or at least in the big block of 27 States that have filing deadlines.
In all of those States the legislative judgment has been made that at some point we are going to flush the candidates out, and in fact, if I just might focus on a few of the States that have filing deadlines, some of them do come fairly early in the process.
Florida comes 100 days.
That is our deadline.
Arkansas is 60 days.
New Mexico, 56 days; Texas, 55 days.
We admit, other States make different judgments about when that filing deadline should occur.
Unknown Speaker: Are those filing deadlines, means you can't write-in for the candidate unless he meets that deadline?
Mr. Michaels: That's correct, sir.
Our basic, our system is structured in a way so that not only can an individual get on the ballot through the automatic access in April, because you don't have to have party committees, party officers, or rules.
The statute admonishes you to file them if you have them, but if you don't have them, you won't be kicked off the ballot.
But it also allows the party candidates whose petitions fail to get on the ballot through the nonpartisan process... there is no disaffiliation requirement under Hawaii law, and so it is truly a case where Hawaii has two complementary and each equally available systems for getting on to the ballot.
We submit to the Court that under this Court's cases in Munro v. Socialist Workers' Party is we submit our best case, that our system is wholly constitutional, and there is really no argument by the petitioner that it is not.
There are a couple of footnotes in the brief criticizing parts of the law, but there is no extended argument looking into the Court's cases and what the Court has decided in these cases, to challenge as a constitutional matter our law.
And if one looks to the principles that the Court adopted in the Munro case, that access at the primary stage alone would be sufficient, we have that automatic backup that you can get into at April with a 1 percent signature requirement that is equally sufficient and makes our law doubly good.
The Ninth Circuit in this case therefore has a right to say that there wasn't any substantial burden on Mr. Burdick's constitutional interests, and the Court need not get to the second step of the analysis, as to compelling interest, except perhaps to note that there is a rational relationship between the laws, the goals that we have, and the law that is adopted.
And we think that that should be the proper way for the Court to decide the case.
But even if one gets over that hump, Hawaii's law is backed by compelling State interests at every turn that are narrowly tailored to the way that the law is written.
You simply cannot have the kind of informed voting that Hawaii mandates unless you have deadlines that stick, and although Mr. Burdick concedes that the sore-loser interest is only a narrow one, we urge the Court to look at Judge Easterbrook's opinion in the Seventh Circuit case.
A lot more people than just the candidates are mad after the primary.
Our eligibility requirements, those are conceded to be valid and can be enforced, and at the primary there is an important interest in respecting the party's ability to, in a sense, have their own house in order.
Now, Mr. Burdick says that it is enough just to say that in Hawaii our laws provide that you have to be a member of the party in order to be a party candidate at the primary.
But time is really of the essence in election law, and the point we wish to make with respect to the party raiding argument is that the parties need not just to have this requirement out there, but they need the time to make that requirement effective by looking at the filing deadline to see if there really is a bona fide person who is a member of their party running in the primary, and then to go to court and to use the time we provide to go to court, if in fact they have a beef about that.
And as far as the runaway primary winner argument goes, it is true that in the Federal races and State-wide office, a person isn't automatically seated.
But in that instance, as I explained to Justice Stevens, we have provisions for succession in the case of death, withdrawal or substitution, and those rules of succession respect the primary mandate, and the--
Unknown Speaker: Mr. Michaels, let me ask you about something you covered, I believe a moment ago, and that is the interest against party raiding and the necessary time for the party to go to court.
I don't think I quite followed that.
Could you expand on it a little bit?
Mr. Michaels: --Our interest at the primary stage in banning write-in voting, in part, not... we have interests that cover it otherwise, but in part is justified by a party raiding interest.
In avoiding the situation where you have a Democrat in sheep's clothing, as it were, running in the Republican primary and then strategic voting by Democrats basically, you get a weak Republican candidate to run against the Democrats.
This Court has recognized that as an interest.
Hawaii, in our statutes--
Unknown Speaker: You could accomplish that, of course, by just providing that only registered voters could vote in the primary of the party, couldn't you?
Mr. Michaels: --Only registered Republicans.
Unknown Speaker: Yes, only registered Republicans vote in the Republican and only Democrats--
Mr. Michaels: That's true that that is one way, but we have chosen to balance the question a little differently.
As a matter of constitutional law in our State, we do have an open primary, and this is recognized because for a large number of races the Democratic primary was determinative, and it remained so in large numbers of races.
But for the protection of the Republican Party and the Libertarian Party and any other party that exists in Hawaii, what we do is two things.
One, we say that the candidates who run in the primary have got to be party members; and secondly, we provide that 60-day period between the filing deadline and the primary date for the party itself to go to court and say, this person isn't really a Republican or this person is not a Democrat or not a Libertarian or whatever.
And under Mr. Burdick's theory of write-in voting at the primary, what he is saying is that you can have last-minute nominations by write-in.
If he is really serious about that, that period of time that the State gives to the parties to go to court and effectuate their own interests is gone, and that is why we believe we have a legitimate narrowly tailored party raiding interest.
Unknown Speaker: --So a registered Democrat could not run in the Republican primary in Hawaii?
Mr. Michaels: That's correct.
In large measure this case is not about write-in voting at all, because Mr. Burdick has said that there are broad classes of candidates where he is asking not that a candidate be seated or that politicians need worry about write-in votes in the manner that I described before, but he is asking that Hawaii, at its own expense, count up what he writes on his ballot and publish it in the lieutenant governor's reports.
If I could just, at this point, direct the Court's attention to page 71 of the JA, these are sample ballots and this is the way the ballot looks to the voter on election day.
These were the facsimile ballots in the 1986 election.
And we can state to the Court with confidence, it is no crime in Hawaii to write in on your ballot, but we are not going to count it up and we are not going to publish it, and that is the law in Hawaii if you write a message on your ballot.
What we are contending under that set of undisputed facts is that this is a case about a claim for State subsidization of protest speech.
Actually, it wouldn't matter if Mr. Burdick wrote in and said the lieutenant governor is a great guy.
We are not going to publish that either.
So whether it is favorable or not favorable, we just don't publish what is written in on the ballot if it is not punched and executed in a manner required by law.
And under the Court's decisions, the Cornelius case is certainly a very powerful case for us.
This is a matter that the State can regulate, how it publishes the... and what questions it will address at the ballot.
Judge Posner in the Georges v. Carney case put it very well, a State could decide to have the advisory question of who if not these do you want regardless of whether they could be seated, but Hawaii, along with a large number of States has decided not to do that, and that is a legitimate decision to make.
I might just add that in that regard, our law would also be justified as a time, place and manner restriction at the ballot because what you are saying, if there is this right to cast this advisory speech, is that you must double the election ballot, that there is an advisory question tacked on to every single race from governor on down, and that conceptual overcrowding of the ballot is something that Hawaii has an interest in avoiding.
And unless the Court has further questions, we rest on the briefs, and we ask the Court to affirm the judgment of the Ninth Circuit.
Unknown Speaker: Very well, Mr. Michaels.
Mr. Eisenberg, you have 6 minutes remaining.
Rebuttal of Arthur N. Eisenberg
Mr. Eisenberg: Thank you, Your Honor.
In response to Justice Scalia's expressed concern about Donald Duck, the State may have some dignitary interest in not recording in its books the vote for Donald Duck, but it is our position that that vote should, at the very least be recorded as a vote no.
And a vote no is not the same as a blank vote because the blank vote does not necessarily signify that the person is voting against the specific candidate, in this instance, who is running on the ballot.
In talking about--
Unknown Speaker: I am troubled that the case might turn on that.
Do you think the case might... if we disagree with that proposition, do you lose the case?
Mr. Eisenberg: --The proposition that--
Unknown Speaker: That a no vote is qualitatively much different than a blank ballot?
Mr. Eisenberg: --We think Hawaii's deficiencies are twofold, Your Honor.
I think the answer to your question is we don't lose the case because Hawaii's law is deficient in a second way.
Hawaii essentially closes off, as we said, the political process to write-in vote, and even for qualified votes, so that if somebody wants to vote for... not express a no vote, a protest vote, but vote by virtue of a write-in for somebody who is perfectly qualified to hold office, we think Hawaii's law which closes off the process 60 days before the primary election and 105 days before the general election is deficient on that ground as well.
The total prohibition simply cannot be sustained.
On that issue, there was some discussion with Mr. Michaels about filing deadlines with respect to those States that require a write-in candidate to register shortly before the election, and Mr. Michaels shows several States which have quite long filing deadlines.
There are other States that we could have chosen that have quite short filing deadlines; California requires filing by write-ins 2 weeks in advance of the election.
Unknown Speaker: But under your argument all the States with a long filing deadline for write-in candidates would also be violating the Constitution.
Mr. Eisenberg: We think that those States are subject to the Anderson against Celebrezze requirement, but the fact is that most States have filing deadlines a week or two shortly before the election.
In Arizona it is the Wednesday before.
In Illinois it is the Friday before the election.
Unknown Speaker: You say even those are invalid.
Mr. Eisenberg: No, no, we do not say that those are invalid.
We think that those restrictions shortly before an election, the filing deadline is reasonable, and the State can say if the write-in candidate does not file, that write-in candidate is not eligible to hold office.
If the deadline is not unreasonably long, we say that those filing deadlines are perfectly reasonable.
The only then remaining question is, what does the State do with a vote for somebody who has not registered?
What does the State then do with the vote for an unqualified voter?
In that circumstance, the vote in our view is a protest vote, is a vote no, and in that circumstance, the State must still record the vote as a vote no, but we have no problem with filing deadlines for write-in candidates that are reasonably imposed.
Unknown Speaker: Well, you do.
You say that even those votes for candidates who haven't met the filing deadlines have to be counted.
Mr. Eisenberg: Have to be counted as a no vote; that is different, we think, than a vote for a qualified candidate.
Our view is that if an individual votes for a qualified candidate, that must be counted in a quite serious way to effect legal change.
Unknown Speaker: These States that have 1 or 2-week filing deadlines, do they now count those votes no for people who haven't--
Mr. Eisenberg: Some States do and some States don't.
I think as we have surveyed the statutory framework, most States say the candidate who fails to file properly, shortly before an election, is ineligible to hold office and the vote won't be counted.
But there are some States, for example, Georgia, that has a filing deadline that continues to count the votes, and in fact, there was an unreported Federal district court decision in the 1980s, James against Falagant, where the voters voted into office, in essence, an individual who did not properly register.
And the question in that circumstance was whether Hawaii's prohibition against that individual from serving had to be recognized, or whether, when the voters vote in somebody who hadn't complied with the filing requirements and therefore was ineligible, whether that person had nonetheless to be seated, and the Federal district court concluded that the ineligibility would stand and that the individual wouldn't be seated, but the vote is recognized as a protest vote.
Unknown Speaker: --You didn't disagree with that?
Mr. Eisenberg: No, that in fact is the appropriate approach we think.
What is at stake in this case is the right of the voters to choose, petitioner's right to direct his portion of sovereign power to the candidate of his choice.
This right, we say, is not an absolute right.
Many States regulate write-in voting in a variety of ways, with specific focused concerns, and those regulatory measures at not at issue in this case.
What is at issue is the application of Hawaii's total prohibition against all write-in voting in all elections and under all circumstances.
That total prohibition, we think, cannot satisfy the standard articulated by this Court in Anderson against Celebrezze.
That total prohibition cannot be shown necessary to the advancement of any substantial governmental interest, and the decision of the court of appeals should be reversed.
Chief Justice Rehnquist: Thank you, Mr. Eisenberg, the case is submitted.
Argument of Speaker
Mr. Speaker: I have the opinion of the Court to announce in No. 91-535 Burdick against Takushi.
This case involves Hawaii's prohibition against Write-in voting and its primaries.
In an opinion authored by Justice White, we hold that this provision does not infringe on petitioner's rights to vote under the First or Fourteenth Amendments.
Justice Kennedy has filed a dissenting opinion in which Justice Blackmun and Justice Stevens concur.