Legal Commentary

?NOT the ?Whiteman?s Bitch?? Rejected as Candidate?s Label on a Ballot

By Eugene Volokh

The Milwaukee Journal-Sentinel reports that the Wisconsin Government Accountability Board rejected an independent Wisconsin Assembly candidate?s request to label herself on the ballot as ?NOT the ?whiteman?s bitch??:

Unlike candidates from the established Democratic and Republican parties, independents are allowed a five-word statement of purpose on the ballot to explain to voters what their candidacy is about. Shane Falk, a staff attorney for the Accountability Board, said that the board had the ability to restrict obscene or derogatory candidate statements from the ballot. 

With one member absent, the board voted 3?2 in favor of reversing that ruling and allowing the wording. Under board rules, however, four votes are needed to overturn a staff decision.

As best I can tell, the relevant statute provides simply that, ?Along with the names of the independent candidates shall appear the party or principle of the candidates, if any, in 5 words or less, as shown on their nomination papers?; I don?t know what statute or regulation gives the board authority to restrict the contents of those 5 words, and under what standards. I would be inclined to say that a viewpoint-neutral rule prohibiting vulgarities or epithets might well be constitutional, since the ballot is a state-created limited public forum. But I?m not sure exactly what rule is involved; please let me know if you know.

The candidate, Ieshuh Griffin, says this violates her First Amendment rights, and ?says she will seek an injunction in federal court.? For a related example, check out the post about the Rent is 2 Damn High party.

Full post as published by The Volokh Conspiracy on July 21, 2010 (boomark / email).