The Supreme Court has repeatedly noted that ballot and election regulations raise difficult questions about the interplay between the First Amendment's heightened protection for political speech, and states' need to regulate ballots and elections to ensure fair and orderly democracy. When making the delicate judgments between protecting political speech and allowing states to regulate elections, the Court has traditionally stated precisely which test it was employing to evaluate individual restrictions. Last Term, in Buckley v. American Constitutional Law Foundation, the Court invalidated several of Colorado's restrictions on the signature-gathering process for ballot initiative petitions. In so doing, the Court failed to identify which level of scrutiny it was applying for each of the restrictions in question and relied instead on certain unreviewed restrictions to render unconstitutional the specific regulations before it. The lack of clarity in the resulting opinion will make it difficult for lawmakers, lower courts, and the Court to create and evaluate election regulations.
Mark L. Rienzi, Note, Political Speech—Restrictions on Ballot-Initiative Petitions, Buckley v. American Constitutional Law Foundation, 119 S.Ct. 636 (1999), 113 HARV. L. REV. 286 (1999).