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D. Frank Robinson: ‘Censorship: The State Monopoly of Ballot Printing’

Submitted by D. Frank Robinson to IPR for publication:

Does giving the state governments a monopoly of printing ballots violate the individual’s First Amendment right by abridging freedom of the press?

Until the late 1800’s, all ballots, votes recorded on paper, in the United States were cast as write-in ballots. Voters prepared, that is published, their own ballots or used pre-printed ballots published by political parties. Because there were no state-imposed restrictions on whose name could appear on the ballot, individuals could always vote for the candidates of their choice on self-published ballots.

The system of a state monopoly on prepared ballots, known as the Australian ballot system, was introduced in the United States in 1888. State-monopoly ballots were considered a progressive reform to reduce fraudulent election practices. However, the new state monopoly ballot publishing system also operated to restrict the voter’s choice of candidates. The effect of this Progressive reform was to establish a state monopoly on the use of paper for the purpose of casting, i.e., publishing a citizen’s vote.

In response to this problem, several early state courts recognized a right to cast write-in votes. These early decisions emphasized the voters’ choice as paramount to convenience of monopoly administrators. In Sanner v. Patton, 40 N.E. 290, 292-93 (Ill. 1895) (if write-in voting is prohibited, the voter is deprived of the right of exercising his own choice; where this right is taken away “the boasted free ballot becomes a delusion.”); in Patterson v. Hanley, 68 P. 821, 823 (Cal. 1902) (it seems to be agreed that the voter must be allowed the privilege of casting his vote for any person for any office by writing his name in the proper place.); in Oughton v. Black, 61 A. 346, 348 (Pa. 1905) (without a provision for the voter to make up an entire ticket of his or her own choice, the election as to that voter will not be equal, for that voter is unable to express his or her own individual will in his or her own way.).

Clearly the state publishing monopoly means that not all voters can vote for the candidate of their choice without a self-publishing or write-in option. The effect of the publishing monopoly is to make some candidates privileged by the state ballot monopoly and marginalizes all other candidates who, in effect, lack a license from the monopoly to appear on the ballot. Ballots became a publication subject to editorial control of politically appointed administrators of those partisans who held office at that particular time. This editorial control of the ballot enable those political partisans to further entrench the control of all other state activities.

By 1974 Lubin v. Panish, 415 U.S. 709, 716 (1974) even the Supreme Court recognized that operation of this state ballot publishing monopoly meant not every voter can be assured “that the candidate of his or her liking will be on the ballot.” Or, in the Court’s opinion ballot censorship is an exception to the vaulted rights proclaimed in the First Amendment.

The present balloting system in the United States is now a censorship regime administered by two long self-entrenched cliques of partisans whom voters, candidates, judges and political parties almost unanimously accept as constitutionally necessary, proper and indispensable. The disputes litigated and the reforms proposed involve merely the administrative editorial details of all the various fifty-one publishing units of one national censorship cartel such as which quotas apply under what circumstances and yet still insulate the ballot censorship cartel from competition. Competition is the bane of entrenched monopolists.

There are alternatives to editorial tyranny of the censored ballot short of returning to freelance, although constitutional, ballot publishing. I have discussed one possible alternative — adoption of a uniform or universal write-in ballot similar to the Federal Write in ballot for citizens residing outside the U. S. This electoral system reform should not require a constitutional amendment since the Constitutional provides that Congress may legislate “the manner” of state authorities conducting elections at least for federal offices in not all elections as the Supreme Court has construed the 14th Amendment.

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Wang Tang-Fu


  1. D. Frank Robinson D. Frank Robinson February 27, 2022

    On February 26, 2022, Saturday, I presented to the Oklahoma Libertarian Party state convention the idea of the Liberty Ballot. The Liberty Ballot does not censor the voter’s right and ability to choose among candidates and it enables voter to verify their choices of who to fill offices have not been tampered with after their ballot has been cast. Yet it preserves voter anonymity and even makes it more secure.
    The Liberty Ballot rest on the traditional concept of the ballot held at the founding of the United States that the ballot is the property of the voter. But the 21st Century Liberty Ballot secures the property right of the voter in a way inconceivable in the 18th century with an encrypted ballot receipt for the voter. In effect a secret key for the voter monitor the official processing of their ballot.
    Voters cannot break free from the manipulative grip of the entrenched political party aristocracy until they can again make elections really matter instead merely an elaborate media soap opera.
    The Liberty Ballot will put voters back in command of government.

  2. D. Frank Robinson D. Frank Robinson July 22, 2020

    I’m not publishing Slashing the Gordian Knot of Ballot Access Censorship until I file my lawsuit or posthumously.
    Mr. Knapp’s article linked above is very accurate and concise.

  3. D Frank Robinson D Frank Robinson July 2, 2019

    Working on a forthcoming article, “Slashing the Gordian Knot of Ballot Access Censorship.”

  4. D Frank Robinson D Frank Robinson July 2, 2018

    Further inquiry since this publication has led me to conclude that Article 1, Section 4 and Article 1, Section 5 place the regulation of elections in the Congress and the states nay act only as agents of Congress to hold elections. Therefore, state ballot access censorship is an usurpation of Congressional power and all state ballot access laws are unconstitutional.

  5. D Frank Robinson D Frank Robinson April 16, 2018

    Of course, people did not really give states a monopoly of ballot publishing. The states simply used some nebulous notion of a “police power” to carve out an exception to the First Amendment. It was a “taking” of property without due process or just compensation and that is prohibited by the Fifth Amendment. But, does a constitution really matter to authoritarians dedicated to erecting an omnipotent state?

  6. D. Frank Robinson D. Frank Robinson April 30, 2017

    Yes, after several proof reads, I see that the word “vaulted” should be “vaunted.”

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