Decoding the “Sphinx-Like Silence”: State Residency, Petition Circulation, and the First Amendment

March 30, 2018


State governments are the primary regulators of elections and ballot access in the United States. State statutes determine who is eligible to be on the ballot in each particular state, as well as who may assist these individuals by gathering petition signatures. Candidates for political office, initiative proponents, and their supporters have challenged some of these restrictions as unconstitutional burdens on political speech. The U.S. Supreme Court has had great difficulty in articulating a coherent standard of review in this area of the law, which shows that the line between a state’s reasonable regulation of the election process and an unconstitutional burden on First Amendment rights is not easy to define.

One particular area where this issue has come into focus is state laws requiring petition circulators to be state residents or, alternatively, eligible to vote in the state. The majority of circuits have declared these restrictions unconstitutional burdens on political speech, while one circuit has found them a reasonable regulation of a state’s electoral process. This Note explores the history and context of the Supreme Court’s struggle to establish a consistent standard of review in ballot-access cases before examining the nuances of the constitutionality of both residency and voter eligibility requirements. This Note ultimately argues that the minority view is the more correct reading of Supreme Court precedent and that residency requirements are generally reasonable state regulations of elections, while voter eligibility requirements are unconstitutional violations of the First Amendment.

April 2018

No. 5