The First Amendment protects activities adjacent to voting, but stops short of voting itself

First Five by the Freedom Forum Institute

Feb 27, 2020

By Lata Nott

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The First Amendment protects your right to express yourself freely. While you can do a lot of different things with that freedom, its highest purpose, and the reason that the Constitution's framers wanted you to have it, is to express yourself politically. All five of the rights named in the First Amendment work in concert to allow you to do just that. Your freedom of religion gives you an array of protections, including the right to follow your own conscience and develop your own values. Your freedom of speech protects your right to express those values, even if that expression is critical of the government. Freedom of the press guarantees your right to uncensored information about the world around you and especially information about what your government is doing. And if you don’t like what the government is doing — if its actions contradict the values you cherish — you have the freedom of petition, which is the freedom to ask for the changes you want and the freedom to assemble a group of like-minded people to give that request some political heft.

But what if, after all that, your representatives just won't listen to you? Theoretically, you have the power to vote them out of office. But that right is much less secure than your right to express your displeasure in the first place. Depending on where you live and what your political views are, the government may be able to render your vote almost meaningless.

In most states, state legislatures are responsible for drawing up the state’s congressional and legislative maps. Practically speaking, that means that the politicians in power can, and often do, draw district boundaries in a manner that will help themselves or their party. As Vox's Andrew Prokop explains, "Packing as many of the other party’s voters as possible into just a few districts they’ll win overwhelmingly, while ensuring your own party’s voters get smaller but solid advantages in more districts overall, is the classic way to gerrymander. But it can be immensely frustrating to voters, and make them feel their voices aren’t being heard." (It also leads to some truly bizarre looking district maps.)

Last year, the Supreme Court heard two cases challenging extreme partisan gerrymandering, one brought by North Carolina plaintiffs claiming that the state’s districting plan discriminated against Democrats and the other, brought by Maryland plaintiffs claiming that their state’s plan discriminated against Republicans. In both cases, the plaintiffs alleged that their First Amendment rights had been violated, because the government had penalized them for their political views by reducing their ability to elect the candidates of their choice. The court, in an opinion written by Chief Justice John Roberts, dismissed this idea, writing that there were, “no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district.” He went on to say that federal courts were ill-suited to decide whether partisan gerrymandering "goes too far," leaving reform in the hands of state voters and lawmakers.

The voters of Michigan rose to the challenge and overwhelmingly approved a ballot initiative to create an independent redistricting commission made up of four Republicans, four Democrats and five unaffiliated voters. The commission would exclude certain people who might have conflicts of interest, such as elected officials, candidates, party leaders and lobbyists. Despite the bipartisan support for the initiative, the Michigan Republican Party has filed a lawsuit challenging it — ironically, on First Amendment grounds. Their complaint alleges that the eligibility rules for commissioners exclude people “based on their exercise of one or more of their constitutionally protected interests, i.e., freedom of speech (e.g., by the exclusion of candidates for partisan office), right of association (e.g., by the exclusion of members of a governing body of a political party), and/or the right to petition (e.g., by the exclusion of registered lobbyists).”

The case has yet to be decided, but there’s something mind boggling about the idea that a redistricting commission structure that discriminates against those with political party ties would violate the First Amendment while a redistricting plan that discriminates against those with specific political beliefs does not. But all of this serves to highlight the strange relationship between First Amendment rights and voting rights. The First Amendment protects so many activities that are adjacent to voting — spending money to influence voters, expressing political views near polling stations, signing petitions to put initiatives on a ballot — but stops short of voting itself. As prominent civil rights lawyer Armand Derfner has written, "It seems like an obvious proposition that a citizen registering to vote or casting a ballot is engaging in free speech, a fundamental right entitled to full protection under the First Amendment ... But the current Supreme Court rarely scrutinizes voting regulations as it does other speech regulations.” The right to express your political opinion is incredibly valuable and deserving of the utmost protection. But it’s strange that the same protection doesn’t extend to your ability to actually enact political change.

Lata Nott is a Freedom Forum Fellow. Contact her via email at lnott@freedomforum.org, or follow her on Twitter at @LataNott.