Voter Viewpoint Discrimination: A First Amendment Challenge to Voter Participation Restrictions

Abstract

Abstract The Supreme Court's recent decision in Shelby County v. Holder has generated a flurry of scholarly thinking about alternative ways to approach legislatively enacted restrictions on voting rights. One alternative that deserves additional attention is the possibility of challenging voter participation restrictions (such as voter ID laws) as viewpoint discriminatory under existing First Amendment doctrine. Many of these laws, after all, are perceived as embodying a legislative choice to burden some voters but not others based on legislative expectations about how the most burdened voters are likely to vote. A viewpoint discrimination approach therefore seems ripe for further exploration. Part 1 of this paper explains why a First Amendment, viewpoint based challenge to at least some such laws is indeed appropriate. Part 2 uses existing First Amendment doctrine to ground the approach in existing case law, and to specify what it would look like in the election law context.