226
Stevens, J., dissenting
lored." In Munro, we upheld a Washington ballot-access law and, in doing so, observed that we would not "requir[e] a State to make a particularized showing of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access." Id., at 194-195. We stated that legislatures "should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights." Id., at 195-196. I have substantial doubts about the plurality's extension of Munro's reasoning to this case, most fundamentally because I question the plurality's assumption that campaign-free zones do "not significantly impinge on constitutionally protected rights." Not only is this the very question before us, but in light of the sweep of such zones and the vital First Amendment interests at stake, I do not know how that assumption can be sound.
Third, although the plurality recognizes the problematic character of Tennessee's content-based suppressive regulation, ante, at 197-198, it nonetheless upholds the statute because "there is simply no evidence" that commercial or charitable solicitation outside the polling place poses the same potential dangers as campaigning outside the polling place, ante, at 207. This analysis contradicts a core premise of strict scrutiny—namely, that the heavy burden of justification is on the State. The plurality has effectively shifted the burden of proving the necessity of content discrimination from the State to the plaintiff.
In sum, what the plurality early in its opinion calls "exacting scrutiny," ante, at 198, appears by the end of its analysis to be neither exacting nor scrutiny. To borrow a mixed metaphor, the plurality's scrutiny is "toothless." Mathews v. Lucas, 427 U. S. 495, 510 (1976).
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