Why Voting Should Be a First Amendment Right
The Supreme Court is about to decide Watson v. Republican National Committee on the narrowest possible grounds: whether a federal statute preempts a Mississippi law that allows mail-in ballots postmarked by Election Day to be counted if they arrive within five days. If the Court concludes that federal law preempts Mississippi's rule, it will mean that hundreds of thousands of legally cast ballots that were postmarked on time will be invalidated because the USPS, a government service, took longer than expected or what the statutory definition allows. In other words, the voters followed all of the rules, but their greatest form of political expression will be suppressed.
The case has been argued entirely on statutory grounds. But the question underneath it is constitutional, and I don't think we've been asking it correctly.
What if voting is a First Amendment right?
I came to this question from an unexpected direction. In Matal v. Tam, the case I litigated to the Supreme Court over eight years, the government used an administrative mechanism — the disparagement provision of the Lanham Act — to deny my band a trademark. The USPTO couldn't ban our name outright; the First Amendment wouldn't allow it. So instead it used a procedural standard, applied subjectively and inconsistently, to suppress something expressive through bureaucratic process. The Court found, unanimously, that the government doesn't get to make that determination. We argued, and the court agreed, that the disparagement provision was a form of viewpoint discrimination.
Watson raises a structurally similar question. The government cannot ban mail voting outright. Instead, it defines "Election Day" in a way that makes a constitutionally significant act of political expression practically impossible for identifiable communities — rural voters, military voters, elderly voters — through procedural indifference. The mechanism is administrative. The effect is expressive suppression. The question is whether our constitutional framework is equipped to see it that way.
Why the Reconstruction Amendments aren't enough
The Fourteenth and Fifteenth Amendments were written to answer specific post-Civil War questions: Were formerly enslaved people citizens? Yes. Did Congress have authority over federal elections for the first time? Yes. The Fourteenth Amendment has since become the primary constitutional defense for women, LGBTQ people, and racial and ethnic minorities against government discrimination — Brown v. Board, gender equality, marriage rights. But it has also failed those same communities at critical moments. Korematsu v. United States upheld the internment of Japanese Americans under equal protection. Trump v. Hawaii deferred to executive authority. The Fifteenth Amendment's teeth didn't arrive until the Voting Rights Act of 1965 — and those protections have been systematically narrowed by this Court through Shelby County, Crawford, and Brnovich.
The Reconstruction Amendments prohibit certain forms of disenfranchisement. They guarantee equal protection. They are necessary but not sufficient. They were not designed primarily to address the suppression of political viewpoints — the structural privileging of one mode of expression over another. The First Amendment is.
What makes voting expressive
The skeptic's objection is straightforward: the Constitution already addresses voting in five amendments. Why bring the First Amendment into it?
Because voting is not merely a mechanism for choosing officeholders. It is the citizen's most formal act of political expression and association — the moment when speech, assembly, petition, and political affiliation become effective.
The First Amendment's reach extends well beyond spoken words. Courts have long recognized that conduct communicates when it conveys a political message. In Tinker v. Des Moines, the Court ruled that wearing a black armband to protest a war was protected speech. The Court has also repeatedly ruled that actions such as flag burning and burning a draft card are all considered speech. All of these have received First Amendment protection because they express political judgment. The ballot is not a random administrative form. It is a structured political statement addressed to the state itself. If burning a draft card raises First Amendment questions, completing a ballot raises them more directly.
There is also a deeper irony in the current doctrine that bears naming. The Supreme Court treats spending money to influence votes — by candidates, parties, corporations, and anonymous contributors — as fully protected First Amendment expression subject to strict scrutiny. Why does the act of voting receive far less constitutional protection than the act of trying to influence your vote? Why do the dollars matter more than the votes themselves?
One could also draw a parallel to the freedoms the First Amendment explicitly protects. Speech and petition are obvious antecedents. But consider assembly: voting is among the most formal acts of political association, a collective exercise of civic will that gives meaning to everything assembly is meant to accomplish. It is difficult to explain why the Constitution would protect gathering to influence government while offering comparatively little protection to the act that ultimately constitutes that influence.
Treating voting as merely administrative implies that citizenship consists of asking rulers to listen. Treating it as expressive recognizes something more accurate: citizens are co-authors of the political order. Those subject to coercive law should have a meaningful opportunity to participate in its creation. That is not a progressive premise or a conservative one. It is the premise of self-governance.
What a First Amendment lens would require
Speech rights have always coexisted with reasonable time, place, and manner regulations. The state can administer elections, prevent fraud, establish deadlines, and verify eligibility. A First Amendment frame doesn't eliminate that authority.
What it does is ask a harder question: is the government burdening a protected act of political expression, and if so, does the burden serve a compelling interest narrowly tailored to that end?
Consider the hypothetical: if a state law said you may join a political party only if you appear at the state capital in person, it would immediately raise First Amendment concerns — not because joining a party is prohibited, but because the burden on the means of political participation is unjustifiable. The same logic applies to voting. If the ballot is expressive conduct, the state cannot be indifferent to the medium through which that expression occurs.
Mail ballots exist because not everyone can participate equally through in-person voting. Rural voters face longer distances and fewer polling locations. Military and overseas voters cannot physically appear at a precinct. Elderly and disabled voters may have no other option. Restrictions on mail voting do not fall evenly — they fall hardest on the communities with the least flexibility to absorb narrow participation windows.
Under a pure administrative view, mail ballots are a convenience the state may grant or withdraw. That is precisely what we are watching happen. Under a First Amendment view, they are one constitutionally significant channel for political expression, and restrictions on them require serious justification tied to election integrity — not statutory interpretation of an 1845 definition of "Election Day" that says nothing about when ballots must be received.
What this argument doesn't depend on
This argument doesn't depend on proving partisan intent. The principle should hold regardless of who benefits politically. The question is whether government may substantially burden a citizen's most formal act of political expression without meaningful constitutional scrutiny.
The Court has repeatedly recognized that voting implicates associational and expressive interests, even if it has never squarely held that casting a ballot itself is protected speech. That gap — between what the Court has acknowledged and what it has been willing to protect — is exactly where a First Amendment claim could take hold. The laws most worth defending are those that are most fair, and that standard cannot depend on who currently holds power. I've believed that throughout my own experience with government process used as expressive suppression. The principle doesn't change based on which community is targeted or which administration is doing the targeting.
What this argument doesn't resolve
This is not a legal brief, and I want to be honest about its limits. The First Amendment argument for voting has not been adopted by courts, and there are real jurisprudential reasons why. The doctrines are different. The standards of review are different. Expanding First Amendment coverage into election administration would have consequences difficult to fully anticipate.
What I'm arguing is not that the Court should have decided Watson on First Amendment grounds. It's that the statutory question before the Court is the wrong level of analysis for the civil liberties problem the case represents — and that we won't find a durable answer until we're willing to ask whether voting, as the most fundamental act of political self-expression, deserves constitutional protection that matches its importance to democratic life. Legal scholars have begun making this case: Armand Derfner and J. Gerald Hebert argued in the Yale Law & Policy Review that the casting of a vote meets the ordinary definition of a speech act, and that the Court has never foreclosed the First Amendment claim — it simply hasn't been asked to make it directly.
The arc of the moral universe bends toward justice. But as I've learned from years inside constitutional litigation, it doesn't bend on its own. It requires people willing to keep asking the questions the current framework doesn't have room for — until the framework catches up.
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I speak on First Amendment law, civil liberties, and the gap between legal doctrine and lived experience at law schools, bar associations, and civic organizations. If these questions connect to work you're doing, simontam.org/speaking is the place to start. For civic engagement and democracy programming, simontam.org/civic-engagement-democracy has more.
