 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BURDICK v. TAKUSHI, DIRECTOR OF ELECTIONS
OF HAWAII, et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 91-535.   Argued March 24, 1992-Decided June 8, 1992

Petitioner, a registered Honolulu voter, filed suit against respondent
 state officials, claiming that Hawaii's prohibition on write-in voting
 violated his rights of expression and association under the First and
 Fourteenth Amendments.  The District Court ultimately granted his
 motion for summary judgment and injunctive relief, but the Court of
 Appeals reversed, holding that the prohibition, taken as part of the
 State's comprehensive election scheme, does not impermissibly burden
 the right to vote.
Held:Hawaii's prohibition on write-in voting does not unreasonably
 infringe upon its citizens' rights under the First and Fourteenth
 Amendments.  Pp.4-13.
   (a)Petitioner assumes erroneously that a law that imposes any
 burden on the right to vote must be subject to strict scrutiny.  This
 Court's cases have applied a more flexible standard:  A court consid-
 ering a state election law challenge must weigh the character and
 magnitude of the asserted injury to the First and Fourteenth Amend-
 ment rights that the plaintiff seeks to vindicate against the precise
 interests put forward by the State as justification for the burden
 imposed by its rule, taking into consideration the extent to which
 those interests make it necessary to burden the plaintiff's rights.
 Anderson v. Celebrezze, 460 U.S. 780, 788-789.  Under this stan-
 dard, a regulation must be narrowly drawn to advance a state
 interest of compelling importance only when it subjects the voters'
 rights to ``severe'' restrictions.  Norman v. Reed, 502 U.S. ___, ___.
 If it imposes only ``reasonable, nondiscriminatory restrictions'' upon
 those rights, the State's important regulatory interests are generally
 sufficient to justify the restrictions.  Anderson, supra, at 788.
 Pp.4-6.
   (b)Hawaii's write-in vote prohibition imposes a very limited
 burden upon voters' rights to associate politically through the vote
 and to have candidates of their choice placed on the ballot.  Because
 the State's election laws provide easy access to the primary ballot
 until the cut-off date for the filing of nominating petitions, two
 months before the primary, any burden on the voters' rights is borne
 only by those who fail to identify their candidate of choice until
 shortly before the primary.  An interest in making a late rather than
 an early decision is entitled to little weight.  Cf. Storer v. Brown,
 415 U.S. 724, 736.  Pp.6-10.
   (c)Hawaii's asserted interests in avoiding the possibility of unre-
 strained factionalism at the general election and in guarding against
 ``party raiding'' during the primaries are legitimate and are sufficient
 to outweigh the limited burden that the write-in voting ban imposes
 upon voters.  Pp.10-12.
   (d)Indeed, the foregoing analysis leads to the conclusion that
 where, as here, a State's ballot access laws pass constitutional muster
 as imposing only reasonable burdens on First and Fourteenth Amend-
 ment rights, a write-in voting prohibition will be presumptively valid,
 since any burden on the right to vote for the candidate of one's choice
 will be light and normally will be counterbalanced by the very state
 interests supporting the ballot access scheme.  Pp.12-13.
937 F.2d 415, affirmed.

 White, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O'Connor, Scalia, Souter, and Thomas, JJ., joined.
Kennedy, J., filed a dissenting opinion, in which Blackmun and
Stevens, JJ., joined.



NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
--------
No. 91-535
--------
ALAN B. BURDICK, PETITIONER v. MORRIS
TAKUSHI, DIRECTOR OF ELECTIONS
OF HAWAII, et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 8, 1992]

  Justice White delivered the opinion of the Court.
  The issue in this case is whether Hawaii's prohibition on
write-in voting unreasonably infringes upon its citizens'
rights under the First and Fourteenth Amendments.
Petitioner contends that the Constitution requires Hawaii
to provide for the casting, tabulation, and publication of
write-in votes.  The Court of Appeals for the Ninth Circuit
disagreed, holding that the prohibition, taken as part of the
State's comprehensive election scheme, does not impermis-
sibly burden the right to vote.  937 F. 2d 415, 422 (1991).
We affirm.
                            I
  Petitioner is a registered voter in the city and County of
Honolulu.  In 1986, only one candidate filed nominating
papers to run for the seat representing petitioner's district
in the Hawaii House of Representatives.  Petitioner wrote
to state officials inquiring about Hawaii's write-in voting
policy and received a copy of an opinion letter issued by the
Hawaii Attorney General's Office stating that the State's
election law made no provision for write-in voting.  1 App.
38-39, 49.
  Petitioner then filed this lawsuit, claiming that he wished
to vote in the primary and general elections for a person
who had not filed nominating papers and that he wished to
vote in future elections for other persons whose names were
not and might not appear on the ballot.  1 id., at 32-33.
The United States District Court for the District of Hawaii
concluded that the ban on write-in voting violated
petitioner's First Amendment right of expression and
association and entered a preliminary injunction ordering
respondents to provide for the casting and tallying of write-
in votes in the November 1986 general election.  App. to
Pet. for Cert. 67a-77a.  The District Court denied a stay
pending appeal.  1 App. 76-107.
  The Court of Appeals entered the stay, 1 id., at 109, and
vacated the judgment of the District Court, reasoning that
consideration of the federal constitutional question raised
by petitioner was premature because -neither the plain
language of Hawaii statutes nor any definitive judicial
interpretation of those statutes establishes that the Hawaii
legislature has enacted a ban on write-in voting.-  Burdick
v. Takushi, 846 F. 2d 587, 588 (CA9 1988).  Accordingly, the
Court of Appeals ordered the District Court to abstain, see
Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496
(1941), until state courts had determined whether Hawaii's
election laws permitted write-in voting.
  On remand, the District Court certified the following
three questions to the Supreme Court of Hawaii:
      -(1) Does the Constitution of the State of Hawaii
require Hawaii's election officials to permit the casting
of write-in votes and require Hawaii's election officials
to count and publish write-in votes?
      -(2) Do Hawaii's election laws require Hawaii's
election officials to permit the casting of write-in votes
and require Hawaii's election officials to count and
publish write-in votes?
      -(3) Do Hawaii's election laws permit, but not
require, Hawaii's election officials to allow voters to
cast write-in votes and to count and publish write-in
votes?-  App. to Pet. for Cert. 56a-57a.
Hawaii's high court answered -No- to all three questions,
holding that Hawaii's election laws barred write-in voting
and that these measures were consistent with the State's
Constitution.  Burdick v. Takushi, 70 Haw. 498, 776 P. 2d
824 (1989).  The United States District Court then granted
petitioner's renewed motion for summary judgment and
injunctive relief, but entered a stay pending appeal.  737 F.
Supp. 582 (Haw. 1990).
  The Court of Appeals again reversed, holding that Hawaii
was not required to provide for write-in votes:
-Although the prohibition on write-in voting places
some restrictions on [petitioner's] rights of expression
and association, that burden is justified in light of the
ease of access to Hawaii's ballots, the alternatives
available to [petitioner] for expressing his political
beliefs, the State's broad powers to regulate elections,
and the specific interests advanced by the State.-  937
F. 2d, at 421.
In so ruling, the Ninth Circuit expressly declined to follow
an earlier decision regarding write-in voting by the Court
of Appeals for the Fourth Circuit.  See ibid., citing Dixon v.
Maryland State Administrative Bd. of Election Laws, 878 F.
2d 776 (CA4 1989).  We granted certiorari to resolve the
disagreement on this important question.  502 U. S. ---
(1991).
                           II
  Petitioner proceeds from the erroneous assumption that
a law that imposes any burden upon the right to vote must
be subject to strict scrutiny.  Our cases do not so hold.
  It is beyond cavil that -voting is of the most fundamental
significance under our constitutional structure.-  Illinois Bd.
of Elections  v. Socialist Workers Party, 440 U. S. 173, 184
(1979).  It does not follow, however, that the right to vote in
any manner and the right to associate for political purposes
through the ballot are absolute.  Munro v. Socialist Workers
Party, 479 U. S. 189, 193 (1986).  The Constitution provides
that States may prescribe -[t]he Times, Places and Manner
of holding Elections for Senators and Representatives,- Art.
I, 4, cl. 1, and the Court therefore has recognized that
States retain the power to regulate their own elections.
Sugarman v. Dougall, 413 U. S. 634, 647 (1973); Tashjian
v. Republican Party of Connecticut, 479 U. S. 208, 217
(1986).  Common sense, as well as constitutional law,
compels the conclusion that government must play an
active role in structuring elections; -as a practical matter,
there must be a substantial regulation of elections if they
are to be fair and honest and if some sort of order, rather
than chaos, is to accompany the democratic processes.-
Storer v. Brown, 415 U. S. 724, 730 (1974).
  Election laws will invariably impose some burden upon
individual voters.  Each provision of a code, -whether it
governs the registration and qualifications of voters, the
selection and eligibility of candidates, or the voting process
itself, inevitably affects-at least to some degree-the
individual's right to vote and his right to associate with
others for political ends.-  Anderson v. Celebrezze, 460 U. S.
780, 788 (1983).  Consequently, to subject every voting
regulation to strict scrutiny and to require that the regula-
tion be narrowly tailored to advance a compelling state
interest, as petitioner suggests, would tie the hands of
States seeking to assure that elections are operated
equitably and efficiently.  See Brief for Petitioner 32-37.
Accordingly, the mere fact that a State's system -creates
barriers . . . tending to limit the field of candidates from
which voters might choose . . . does not of itself compel close
scrutiny.-  Bullock v. Carter, 405 U. S. 134, 143 (1972);
Anderson, supra, at 788; McDonald v. Board of Election
Comm'nrs of Chicago, 394 U. S. 802 (1969).
  Instead, as the full Court agreed in Anderson, supra, at
788-789; id., at 808, 817 (Rehnquist, J., dissenting), a
more flexible standard applies.  A court considering a
challenge to a state election law must weigh -the character
and magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate- against -the precise interests put
forward by the State as justifications for the burden
imposed by its rule,- taking into consideration -the extent
to which those interests make it necessary to burden the
plaintiff's rights.-  Id., at 789;  Tashjian, supra, at 213-214.
  Under this standard, the rigorousness of our inquiry into
the propriety of a state election law depends upon the
extent to which a challenged regulation burdens First and
Fourteenth Amendment rights.  Thus, as we have recog-
nized when those rights are subjected to -severe- restric-
tions, the regulation must be ``narrowly drawn to advance
a state interest of compelling importance.-  Norman v. Reed,
502 U. S. ---, --- (1992).  But when a state election law
provision imposes only -reasonable, nondiscriminatory
restrictions- upon the First and Fourteenth Amendment
rights of voters, -the State's important regulatory interests
are generally sufficient to justify- the restrictions.  Ander-
son, supra, at 788; see also id., at 788-789, n. 9.  We apply
this standard in considering petitioner's challenge to
Hawaii's ban on write-in ballots.
                            A
  There is no doubt that the Hawaii election laws, like all
election regulations, have an impact on the right to vote,
Anderson, supra, at 788, but it can hardly be said that the
laws at issue here unconstitutionally limit access to the
ballot by party or independent candidates or unreasonably
interfere with the right of voters to associate and have
candidates of their choice placed on the ballot.  Indeed,
petitioners understandably do not challenge the manner in
which the State regulates candidate access to the ballot.
  To obtain a position on the November general election
ballot, a candidate must participate in Hawaii's open
primary, -in which all registered voters may choose in
which party primary to vote.-  Tashjian, supra, at 223,
n. 11.  See Haw. Rev. Stat. 12-31 (1985).  The State
provides three mechanisms through which a voter's candi-
date-of-choice may appear on the primary ballot.
  First, a party petition may be filed 150 days before the
primary by any group of persons who obtain the signatures
of one percent of the State's registered voters.  Haw. Rev.
Stat. 11-62 (Supp. 1991).  Then, 60 days before the
primary, candidates must file nominating papers certifying,
among other things, that they will qualify for the office
sought and that they are members of the party that they
seek to represent in the general election.  The nominating
papers must contain the signatures of a specified number
of registered voters:  25 for candidates for statewide or
federal office; 15 for state legislative and county races.
Haw. Rev. Stat. 12-2.5 to 12-7 (1985 and Supp. 1991).
The winner in each party advances to the general election.
Thus, if a party forms around the candidacy of a single
individual and no one else runs on that party ticket, the
individual will be elected at the primary and win a place on
the November general election ballot.
  The second method through which candidates may appear
on the Hawaii primary ballot is the established party
route.  Established parties that have qualified by petition
for three consecutive elections and received a specified
percentage of the vote in the preceding election may avoid
filing party petitions for 10 years.  Haw. Rev. Stat. 11-61
(1985).  The Democratic, Republican, and Libertarian
Parties currently meet Hawaii's criteria for established
parties.  Like new party candidates, established party
contenders are required to file nominating papers 60 days
before the primary.  Haw. Rev. Stat. 12-2.5 to 12-7 (1985
and Supp. 1991).
  The third mechanism by which a candidate may appear
on the ballot is through the designated nonpartisan ballot.
Nonpartisans may be placed on the nonpartisan primary
ballot simply by filing nominating papers containing 15 to
25 signatures, depending upon the office sought, 60 days
before the primary.  12-3 to 12-7.  To advance to the
general election, a nonpartisan must receive 10 percent of
the primary vote or the number of votes that was sufficient
to nominate a partisan candidate, whichever number is
lower.  Hustace v. Doi, 60 Haw. 282, 289-290, 588 P. 2d
915, 920 (1978).  During the 10 years preceding the filing of
this action, 8 of 26 nonpartisans who entered the primary
obtained slots on the November ballot.  Brief for Respon-
dent 8.
  Although Hawaii makes no provision for write-in voting
in its primary or general elections, the system outlined
above provides for easy access to the ballot until the cutoff
date for the filing of nominating petitions, two months
before the primary.  Consequently, any burden on voters'
freedom of choice and association is borne only by those
who fail to identify their candidate of choice until days
before the primary.  But in Storer v. Brown, we gave little
weight to -the interest the candidate and his supporters
may have in making a late rather than an early decision to
seek independent ballot status.-  415 U. S., at 736.  Cf.
Rosario v. Rockefeller, 410 U. S. 752, 757 (1973).  We think
the same reasoning applies here and therefore conclude
that any burden imposed by Hawaii's write-in vote prohibi-
tion is a very limited one.  -To conclude otherwise might
sacrifice the political stability of the system of the State,
with profound consequences for the entire citizenry, merely
in the interest of particular candidates and their supporters
having instantaneous access to the ballot.-  Storer, supra,
at 736.
  Because he has characterized this as a voting rights
rather than ballot access case, petitioner submits that the
write-in prohibition deprives him of the opportunity to cast
a meaningful ballot, conditions his electoral participation
upon the waiver of his First Amendment right to remain
free from espousing positions that he does not support, and
discriminates against him based on the content of the
message he seeks to convey through his vote.  Brief for
Petitioner 19.  At bottom, he claims that he is entitled to
cast and Hawaii required to count a -protest vote- for
Donald Duck, Tr. of Oral Arg. 5, and that any impediment
to this asserted -right- is unconstitutional.
  Petitioner's argument is based on two flawed premises.
First, in Bullock v. Carter, we minimized the extent to
which voting rights cases are distinguishable from ballot
access cases, stating that -the rights of voters and the
rights of candidates do not lend themselves to neat separa-
tion.-  405 U. S., at 143.  Second, the function of the
election process is -to winnow out and finally reject all but
the chosen candidates,- Storer, 415 U. S., at 735, not to
provide a means of giving vent to -short-range political
goals, pique, or personal quarrel[s].-  Ibid.  Attributing to
elections a more generalized expressive function would
undermine the ability of States to operate elections fairly
and efficiently.  Id., at 730.
  Accordingly, we have repeatedly upheld reasonable,
politically neutral regulations that have the effect of
channeling expressive activity at the polls.  See Munro, 479
U. S., at 199.  Petitioner offers no persuasive reason to
depart from these precedents.  Reasonable regulation of
elections does not require voters to espouse positions that
they do not support; it does require them to act in a timely
fashion if they wish to express their views in the voting
booth.  And there is nothing content based about a flat ban
on all forms of write-in ballots.
  The appropriate standard for evaluating a claim that a
state law burdens the right to vote is set forth in Anderson.
Applying that standard, we conclude that, in light of the
adequate ballot access afforded under Hawaii's election
code, the State's ban on write-in voting imposes only a
limited burden on voters' rights to make free choices and to
associate politically through the vote.
                            B
  We turn next to the interests asserted by Hawaii to
justify the burden imposed by its prohibition of write-in
voting.  Because we have already concluded that the burden
is slight, the State need not establish a compelling interest
to tip the constitutional scales in its direction.  Here, the
State's interests outweigh petitioner's limited interest in
waiting until the eleventh hour to choose his preferred
candidate.
  Hawaii's interest in -avoid[ing] the possibility of unre-
strained factionalism at the general election,- Munro, supra,
at 196, provides adequate justification for its ban on write-
in voting in November.  The primary election is -an integral
part of the entire election process,- Storer, supra, at 735,
and the State is within its rights to reserve -[t]he general
election ballot . . . for major struggles  . . . [and] not a forum
for continuing intraparty feuds.-  Ibid.; Munro, supra, at
196, 199.  The prohibition on write-in voting is a legitimate
means of averting divisive sore-loser candidacies.  Hawaii
further promotes the two-stage, primary-general election
process of winnowing out candidates, see Storer, supra, at
735, by permitting the unopposed victors in certain prima-
ries to be designated office holders.  See Haw. Rev. Stat.
12-41, 12-42 (1985).  This focuses the attention of voters
upon contested races in the general election.  This would
not be possible, absent the write-in voting ban.
  Hawaii also asserts that its ban on write-in voting at the
primary stage is necessary to guard against -party raiding.-
Tashjian, 479 U. S., at 219.  Party raiding is generally
defined as -the organized switching of blocs of voters from
one party to another in order to manipulate the outcome of
the other party's primary election.-  Anderson, 460 U. S., at
789, n. 9.  Petitioner suggests that, because Hawaii con-
ducts an open primary, this is not a cognizable interest.  We
disagree.  While voters may vote on any ticket in Hawaii's
primary, the State requires that party candidates be
-member[s] of the party,- Haw. Rev. Stat. 12-3(a)(7)
(1985), and prohibits candidates from filing -nomination
papers both as a party candidate and as a nonpartisan
candidate.-  12-3(c).  Hawaii's system could easily be
circumvented in a party primary election by mounting a
write-in campaign for a person who had not filed in time or
who had never intended to run for election.  It could also be
frustrated at the general election by permitting write-in
votes for a loser in a party primary or for an independent
who had failed to get sufficient votes to make the general
election ballot.  The State has a legitimate interest in
preventing these sorts of maneuvers, and the write-in
voting ban is a reasonable way of accomplishing this goal.
  We think these legitimate interests asserted by the State
are sufficient to outweigh the limited burden that the write-
in voting ban imposes upon Hawaii's voters.
                           III
  Indeed, the foregoing leads us to conclude that when a
State's ballot access laws pass constitutional muster as
imposing only reasonable burdens on First and Fourteenth
Amendment rights-as do Hawaii's election laws-a
prohibition on write-in voting will be presumptively valid,
since any burden on the right to vote for the candidate of
one's choice will be light and normally will be counterbal-
anced by the very state interests supporting the ballot
access scheme.
  In such situations, the objection to the specific ban on
write-in voting amounts to nothing more than the insistence
that the State record, count, and publish individual protests
against the election system or the choices presented on the
ballot through the efforts of those who actively participate
in the system.  There are other means available, however,
to voice such generalized dissension from the electoral
process; and we discern no adequate basis for our requiring
the State to provide and to finance a place on the ballot for
recording protests against its constitutionally valid election
laws.
  -No right is more precious in a free country than that of
having a voice in the election of those who make the laws
under which, as good citizens, we must live.-  Wesberry v.
Sanders, 376 U. S. 1, 17 (1964).  But the right to vote is the
right to participate in an electoral process that is necessari-
ly structured to maintain the integrity of the democratic
system.  Anderson, supra, at 788; Storer, 415 U. S., at 730.
We think that Hawaii's prohibition on write-in voting,
considered as part of an electoral scheme that provides
constitutionally sufficient ballot access, does not impose an
unconstitutional burden upon the First and Fourteenth
Amendment rights of the State's voters.  Accordingly, the
judgment of the Court of Appeals is affirmed.

It is so ordered.



SUPREME COURT OF THE UNITED STATES
--------
No. 91-535
--------
ALAN B. BURDICK, PETITIONER v. MORRIS
TAKUSHI, DIRECTOR OF ELECTIONS
OF HAWAII, et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 8, 1992]

   Justice Kennedy, with whom Justice Blackmun and
Justice Stevens join, dissenting.
   The question before us is whether Hawaii can enact a
total ban on write-in voting.  The majority holds that it can,
finding that Hawaii's ballot access rules impose no serious
limitations on the right to vote.  Indeed, the majority in
effect adopts a presumption that prohibitions on write-in
voting are permissible if the State's ballot access laws meet
constitutional standards.  I dissent because I disagree with
the presumption, as well as the majority's specific conclu-
sion that Hawaii's ban on write-in voting is constitutional.
   The record demonstrates the significant burden that
Hawaii's write-in ban imposes on the right of voters such as
petitioner to vote for the candidates of their choice.  In the
election that triggered this lawsuit, petitioner did not wish
to vote for the one candidate who ran for state representa-
tive in his district.  Because he could not write in the name
of a candidate he preferred, he had no way to cast a
meaningful vote.  Petitioner's dilemma is a recurring,
frequent phenomenon in Hawaii because of the State's
ballot access rules and the circumstance that one party, the
Democratic Party, is predominant.  It is critical to under-
stand that petitioner's case is not an isolated example of a

restriction on the free choice of candidates.  The very ballot
access rules the Court cites as mitigating his injury in fact
compound it systemwide.
   Democratic candidates often run unopposed, especially in
state legislative races.  In the 1986 general election, 33
percent of the elections for state legislative offices involved
single candidate races.  Reply Brief for Petitioner 2-3, n.2.
The comparable figures for 1984 and 1982 were 39 percent
and 37.5 percent.  Ibid.  Large numbers of voters cast blank
ballots in uncontested races, that is, they leave the ballots
blank rather than vote for the single candidate listed.  In
1990, 27 percent of voters who voted in other races did not
cast votes in uncontested state Senate races.  Brief for
Common Cause/Hawaii, as Amicus Curiae 15-16.  Twenty-
nine percent of voters did not cast votes in uncontested
state house races.  Id., at 16.  Even in contested races in
1990, 12 to 13 percent of voters cast blank ballots.  Id., at
16-17.
   Given that so many Hawaii voters are dissatisfied with
the choices available to them, it is hard to avoid the
conclusion that at least some voters would cast write-in
votes for other candidates if given this option.  The write-in
ban thus prevents these voters from participating in Hawaii
elections in a meaningful manner.
   This evidence also belies the majority's suggestion that
Hawaii voters are presented with adequate electoral choices
because Hawaii makes it easy to get on the official ballot.
To the contrary, Hawaii's ballot access laws taken as a
whole impose a significant impediment to third-party or
independent candidacies.  The majority suggests that it is
easy for new parties to petition for a place on the primary
ballot because they must obtain the signatures of only one
percent of the State's registered voters.  This ignores the
difficulty presented by the early deadline for gathering
these signatures:  150 days (5 months) before the primary
election.  Meeting this deadline requires considerable
organization at an early stage in the election, a condition
difficult for many small parties to meet.  See Brief for
Socialist Workers Party as Amicus Curiae 10-11, n.4.
   If the party petition is unsuccessful or not completed in
time, or if a candidate does not wish to be affiliated with a
party, he may run as an independent.  While the require-
ments to get on the nonpartisan ballot are not onerous (15
to 25 signatures, 60 days before the primary), the non-
partisan ballot presents voters with a difficult choice.  This
is because each primary voter can choose only a single
ballot for all offices.  Hence, a voter who wishes to vote for
an independent candidate for one office must forgo the
opportunity to vote in an established party primary in every
other race.  Since there might be no independent candidates
for most of the other offices, in practical terms the voter
who wants to vote for one independent candidate forfeits
the right to participate in the selection of candidates for all
other offices.  This rule, the very ballot access rule that the
Court finds to be curative, in fact presents a substantial
disincentive for voters to select the nonpartisan ballot.  A
voter who wishes to vote for a third-party candidate for only
one particular office faces a similar disincentive to select
the third-party's ballot.
   The dominance of the Democratic Party magnifies the
disincentive because the primary election is dispositive in
so many races.  In effect, a Hawaii voter who wishes to vote
for any independent candidate must choose between doing
so and participating in what will be the dispositive election
for many offices.  This dilemma imposes a substantial
burden on voter choice.  It explains also why so few
independent candidates secure enough primary votes to
advance to the general election.  As the majority notes, only
eight independent candidates have succeeded in advancing
to the general election in the past 10 years.  That is, less
than one independent candidate per year on average has in
fact run in a general election in Hawaii.
  The majority's approval of Hawaii's ban is ironic at a time
when the new democracies in foreign countries strive to
emerge from an era of sham elections in which the name of
the ruling party candidate was the only one on the ballot.
Hawaii does not impose as severe a restriction on the right
to vote, but it imposes a restriction that has a haunting
similarity in its tendency to exact severe penalties for one
who does anything but vote the dominant party ballot.
   Aside from constraints related to ballot access restric-
tions, the write-in ban limits voter choice in another way.
Write-in voting can serve as an important safety mecha-
nism in those instances where a late-developing issue arises
or where new information is disclosed about a candidate
late in the race.  In these situations, voters may become
disenchanted with the available candidates when it is too
late for other candidates to come forward and qualify for
the ballot.  The prohibition on write-in voting imposes a
significant burden on voters, forcing them either to vote for
a candidate whom they no longer support, or to cast a blank
ballot.  Write-in voting provides a way out of the quandary,
allowing voters to switch their support to candidates who
are not on the official ballot.  Even if there are other
mechanisms to address the problem of late-breaking
election developments (unsuitable candidates who win an
election can be recalled), allowing write-in voting is the only
way to preserve the voters' right to cast a meaningful vote
in the general election.
   With this background, I turn to the legal principles that
control this case.  At the outset, I agree with the first
premise in the majority's legal analysis.  The right at stake
here is the right to cast a meaningful vote for the candidate
of one's choice.  Petitioner's right to freedom of expression
is not implicated.  His argument that the First Amendment
confers upon citizens the right to cast a protest vote and to
have government officials count and report this vote is not
persuasive.  As the majority points out, the purpose of
casting, counting, and recording votes is to elect public
officials, not to serve as a general forum for political
expression.
   I agree as well with the careful statement the Court gives
of the test to be applied in this case to determine if the
right to vote has been constricted.  As the Court phrases it,
we must -weigh `the character and magnitude of the
asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindi-
cate' against `the precise interests put forward by the State
as justifications for the burden imposed by its rule,' taking
into consideration `the extent to which those interests make
it necessary to burden the plaintiff's rights.'-  Ante, at 5,
quoting Tashjian v. Republican Party of Connecticut, 479
U. S. 208, 213-214 (1986).  I submit the conclusion must be
that the write-in ban deprives some voters of any substan-
tial voice in selecting candidates for the entire range of
offices at issue in a particular election.
   As a starting point, it is useful to remember that until
the late 1800's, all ballots cast in this country were write-in
ballots.  The system of state-prepared ballots, also known
as the Australian ballot system, was introduced in this
country in 1888.  See L. E. Fredman, The Australian Ballot:
The Story of an American Reform ix (1968).  Prior to this,
voters prepared their own ballots or used preprinted tickets
offered by political parties.  Since there were no state-
imposed restrictions on whose name could appear on a
ballot, individuals could always vote for the candidates of
their choice.
   State-prepared ballots were considered to be a progressive
reform to reduce fraudulent election practices.  The pre-
printed ballots offered by political parties had often been in
distinctive colors so that the party could determine whether
one who had sold his vote had used the right ballot.
Fredman, supra, at 22.  The disadvantage of the new ballot
system was that it could operate to constrict voter choice.
In recognition of this problem, several early state courts
recognized a right to cast write-in votes.  See, for example,
Sanner v. Patton, 155 Ill. 553, 562-564, 40 N.E. 290,
292-293 (1895) (-[I]f the construction contended for by
appellee [prohibiting write-in voting] be the correct one, the
voter is deprived of the constitutional right of suffrage; he
is deprived of the right of exercising his own choice; and
where this right is taken away there is nothing left worthy
of the name of the right of suffrage--the boasted free ballot
becomes a delusion-); Patterson v. Hanley, 136 Cal. 265,
270, 68 P. 821, 823 (1902) (-Under every form of ballot of
which we have had any experience the voter has been
allowed-and it seems to be agreed that he must be
allowed-the privilege of casting his vote for any person for
any office by writing his name in the proper place-); and
Oughton v. Black, 212 Pa. 1, 6-7, 61 A. 346, 348 (1905)
(-Unless there was such provision to enable the voter, not
satisfied to vote any ticket on the ballot, or for any names
appearing on it, to make up an entire ticket of his own
choice, the election as to him would not be equal, for he
would not be able to express his own individual will in his
own way-).
   As these courts recognized, some voters cannot vote for
the candidate of their choice without a write-in option.  In
effect, a write-in ban, in conjunction with other restrictions,
can deprive the voter of the opportunity to cast a meaning-
ful ballot.  As a consequence, write-in prohibitions can
impose a significant burden on voting rights.  See Reynolds
v. Sims, 377 U. S. 533, 555 (1964) (-The right to vote freely
for the candidate of one's choice is of the essence of a
democratic society, and any restrictions on that right strike
at the heart of representative government-).  For those who
are affected by write-in bans, the infringement on their
right to vote for the candidate of their choice is total.  The
fact that write-in candidates are longshots more often than
not makes no difference; the right to vote for one's preferred
candidate exists regardless of the likelihood that the
candidate will be successful.  Socialist Labor Party v.
Rhodes, 290 F. Supp. 983, 987 (SD Ohio), (-A write-in ballot
permits a voter to effectively exercise his individual
constitutionally protected franchise.  The use of write-in
ballots does not and should not be dependent on the
candidate's chance of success-), aff'd in pt., modified in pt.
sub nom., Williams v. Rhodes, 393 U. S. 23 (1968).
   Based on the foregoing reasoning, I cannot accept the
majority's presumption that write-in bans are permissible
if the state's ballot access laws are otherwise constitutional.
For one thing, this presumption is circular, for we must
consider the availability of write-in voting, or the lack
thereof, as a factor in determining whether a state's ballot
access laws considered as a whole are constitutional.
Jenness v. Fortson, 403 U. S. 431, 438 (1971); Storer v.
Brown, 415 U. S. 724, 736, n.7 (1974).  The effect of the
presumption, moreover, is to excuse a state from having to
justify or defend any write-in ban.  Under the majority's
view, a write-in ban only has constitutional implications
when the state's ballot access scheme is defective and write-
in voting would remedy the defect.  This means that the
state needs to defend only its ballot access laws, and not
the write-in restriction itself.
   The majority's analysis ignores the inevitable and
significant burden a write-in ban imposes upon some
individual voters by preventing them from exercising their
right to vote in a meaningful manner.  The liberality of a
state's ballot access laws is one determinant of the extent
of the burden imposed by the write-in ban; it is not, though,
an automatic excuse for forbidding all write-in voting.  In
my view, a state that bans write-in voting in some or all
elections must justify the burden on individual voters by
putting forth the precise interests that are served by the
ban.  A write-in prohibition should not be presumed valid
in the absence of any proffered justification by the State.
The standard the Court derives from Anderson v. Celebrez-
ze, 460 U.S. 780 (1983), means at least this.
   Because Hawaii's write-in ban, when considered in
conjunction with the State's ballot access laws, imposes a
significant burden on voters such as petitioner, it must put
forward the state interests which justify the burden so that
we can assess them.  I do not think it necessary here to
specify the level of scrutiny that should then be applied
because, in my view, the State has failed to justify the
write-in ban under any level of scrutiny.  The interests
proffered by the State, some of which are puzzling, are not
advanced to any significant degree by the write-in prohibi-
tion.  I consider each of the interests in turn.
   The interest that has the best potential for acceptance, in
my view, is that of preserving the integrity of party prima-
ries by preventing sore loser candidacies during the general
election.  As the majority points out, we have acknowledged
the States' interest in avoiding party factionalism.  A write-
in ban does serve this interest to some degree by eliminat-
ing one mechanism which could be used by sore loser
candidates.  But I do not agree that this interest provides
-adequate justification- for the ban.  Ante, at 10.  As an
initial matter, the interest can at best justify the write-in
prohibition for general elections; it cannot justify Hawaii's
complete ban in both the primary and the general election.
And with respect to general elections, a write-in ban is a
very overinclusive means of addressing the problem; it bars
legitimate candidacies as well as undesirable sore loser
candidacies.  If the State desires to prevent sore loser
candidacies, it can implement a narrow provision aimed at
that particular problem.
   The second interest advanced by the State is enforcing its
policy of permitting the unopposed victors in certain
primaries to be designated as officeholders without having
to go through the general election.  The majority states that
-[t]his would not be possible, absent the write-in voting
ban.-  Ante, at 11.  This makes no sense.  As petitioner's
counsel acknowledged during oral argument, -[t]o the
degree that Hawaii has abolished general elections in these
circumstances, there is no occasion to cast a write-in ballot.-
Tr. of Oral Arg. 14.  If anything, the argument cuts the
other way because this provision makes it all the more

important to allow write-in voting in the primary elections
because primaries are often dispositive.
   Hawaii justifies its write-in ban in primary elections as
a way to prevent party raiding.  Petitioners argue that this
alleged interest is suspect because the State created the
party raiding problem in the first place by allowing open
primaries.  I agree.  It is ironic for the State to raise this
concern when the risk of party raiding is a feature of the
open primary system the State has chosen.  The majority
suggests that write-in voting presents a particular risk of
circumventing the primary system because state law
requires candidates in party primaries to be members of the
party.  Again, the majority's argument is not persuasive.  If
write-in voters mount a campaign for a candidate who does
not meet state law requirements, the candidate would be
disqualified from the election.
   The State also cites its interest in promoting the informed
selection of candidates, an interest it claims is advanced by
-flushing candidates into the open a reasonable time before
the election.-  Brief for Respondent 44.  I think the State
has it backwards.  The fact that write-in candidates often
do not conduct visible campaigns seems to me to make it
more likely that voters who go to the trouble of seeking out
these candidates and writing in their names are well
informed.  The state interest may well cut the other way.
   The State cites interests in combating fraud and enforc-
ing nomination requirements.  But the State does not
explain how write-in voting presents a risk of fraud in
today's polling places.  As to the State's interest in making
sure that ineligible candidates are not elected, petitioner's
counsel pointed out at argument that approximately 20
States require write-in candidates to file a declaration of
candidacy and verify that they are eligible to hold office a
few days before the election.  Tr. of Oral Arg. 13.
   In sum, the State's proffered justifications for the write-in
prohibition are not sufficient under any standard to justify
the significant impairment of the constitutional rights of
voters such as petitioner.  I would grant him relief.
