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On The Front Lines

Rutherford Institute Issues Constitutional Guidelines on the Rights, Legalities & Restrictions of Write-In Voting

CHARLOTTESVILLE, Va.  —  In the first of what will be an ongoing series of Constitutional Q&As, The Rutherford Institute has issued guidelines on the rights, legalities and restrictions of write-in voting for those interested in casting a write-in vote for president this November.

“So You Think You Can Write-In Your Vote? The Options and Limitations of Write-In Voting” is available here.

“While the duties of citizenship require much more than merely the act of voting, Americans do have a constitutional right to vote,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “With growing numbers of Americans expressing dissatisfaction with the limited electoral choices before them, it’s important to understand exactly what options are available to citizens who wish to elect to public office individuals they feel is best suited to represent their interests, rather than merely pulling a lever for the ‘lesser of two evils.’”

A write-in vote is one in which the voter selects a person for an office who is not named on the voting ballot by manually writing the name of that person on the ballot in a manner and place that indicates the voter is selecting the person written in. Prior to an election, individuals qualify according to the applicable law to be named on the ballot produced by election officials as a candidate for a particular office. For example, a person may qualify for placement on the ballot by obtaining votes in a political party primary election or by obtaining signatures on petitions. If a voter desires to vote for someone who is not named on the ballot, he or she may attempt to write-in that person’s name.

In a 1992 decision in Burdick v. Takushi, the U.S. Supreme Court ruled that there is no absolute right to cast a write-in vote in an election. The Court considered a Hawaii law that prohibited write-in voting. A Hawaii resident had challenged this restriction as a violation of his First Amendment rights of expression and association. Upholding the law, the Court determined that the purpose of elections is to winnow out and reject all but the chosen candidates. Giving elections a more generalized expressive function, the Court reasoned, would undermine the states’ ability to operate elections efficiently. Thus, according to the Court, the U.S. Constitution does not require election officials to allow voters to cast write-in votes. However, the Court also recognized that if state law unduly restricts the opportunity of candidates to appear on the ballot, a prohibition on write-in voting might be unconstitutional.

The Rutherford Institute’s Constitutional Q&A, “So You Think You Can Write-In Your Vote?” provides voters who want to write-in their vote with the steps they need to take before going to the polls, as well as what they can do if their state does not allow write-in candidates.