Thursday, October 17, 2013

Facebook "like" and First Amendment protection for the right to vote

Recently, the Fourth U.S. Circuit Court of Appeals ruled that a Facebook "like" is protected First Amendment speech. The question arose after several employees of a sheriff's office filed a lawsuit claiming that they had been fired for clicking "like" in support of their boss's challenger, which violated their First Amendment rights.

Prominent UCLA law professor Eugene Volokh said, "You're expressing the relevance of a message and that's good enough." The court agreed. "Liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it," wrote the Court. "It is the Internet equivalent of displaying a political sign in one's yard, which the Supreme Court has held is substantive speech."

The Fourth Circuit's ruling could have a dramatic effect on our right to vote jurisprudence. Clicking "like" on Facebook is not materially different from casting a vote. In fact, unlike clicking "like," historically voting was often actually spoken. Indeed, the historical record indicates that at the time the Founders enshrined our democracy in the Constitution, the most common method of voting was the public expression of one’s choice. 

Even before future colonists began to experience the religious and cultural oppression that would lead them across the Atlantic in search of new freedoms, the English had established this method in elections to the House of Commons. Known as viva voce, this process began when the sheriff called for a vocal public proclamation—or showing of hands—expressing support or opposition for a candidate. If the election remained in dispute, individual voters would voice their choices to an election official, who would record the voter’s name and selection in a poll book. 

When the colonists came to America, viva voce voting came with them. Virginia was the largest and most populous American colony, and it retained a strong allegiance to English traditions. Representative government commenced on this contintent with the organization of the Virginia House of Burgesses in 1619, and thus a formalized method of voting had to be adopted.

At first, a variety of voting methods were used. For example, one early statute called for election of public official by “voices[,]” while another required voters to express their choices with beans—a light bean signifying a positive vote and a dark bean signifying a negative one. However, by 1623, viva voce became required by law.

Viva voce quickly became the preferred method of exercising the vote. By the Revolutionary War, four of the five most populous colonies used this method of voting; and, eleven of the thirteen appear to have used it at some point during the colonial period. 

Furthermore, viva voce voting lasted well into the 19th century. As the country grew, territories and new states adopted viva voce voting as opposed to other established methods. Illinois, for example, voted viva voce until 1849.

Virginia retained this method until the state's constitutional convention in 1867, and Kentucky was the last to abandon the practice in 1891.

Moreover, as I have noted, paper ballots generally were not secretly cast until the 1890s. Until that time, parties printed their own ballots. These ballots were different in size and color, and different kinds of paper were used.

Secrecy was nonexistent. In his book The American Ballot Box in the Mid-Nineteenth Century, Richard Franklin Bensel states, "[P]arty agents attending the polls closely observed with whom the voter associated just before approaching the voting window and were also aware of the subtle differences in the quality of paper and printing associated with the various tickets."

Indeed, voting was a public display. Bensel explains:

The most prominent feature was the voting window through which tickets were received. The voting window separated voters from election officials who occupied what was, in most cases, a large room. Voters remained in the street, courtyard, or empty lot adjoining the building. The voting window was usually about five feet or so above the ground, high enough to restrict access to the election officials but not so high as to make it impossible for shorter voters to hand in their tickets... While this physical arrangement protected election officials from the jostling of partisans outside the building, it also exposed voters to the crowd around the polls."

As Bensel also notes, "election etiquette required only that a man of ordinary courage be able to make his way to the voting window." (Internal citation omitted). Certainly, party ballots and the organization of polling places prohibited voters from hiding their choices.

Even if efforts to maintain ballot secrecy could have prevailed, election officials knew most voters and their political allegiances. At the time ballot reformers began to push for secrecy, less than 30 percent of the country's population lived in cities (urban areas did not contain a majority of the population until the 1920s); the majority still lived in rural areas, where small, more closely knit communities relied on less formal electoral practices. Indeed, according to Bensel, "In practice, election judges...called upon a collective recollection of the voter's personal history" when judging voter eligibility.

Even after the passage of the secret ballot, election officials continued to rely on their personal knowledge of voters. In the disputed Tennessee gubernatorial election in 1894, for example, The Nashville Banner reported, "It is true the judges in many district did not require men they know had paid the tax to go through the formality of showing [poll tax] receipts."

Historically, voting was public expression. The methods of voting and the places that voting took place compel the conclusion that the vote was as public as clicking "like" on Facebook. Further, due to its fundamentality in our representative democracy, the right to vote ought to receive at least as much protection as Facebook expression. 

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