Ballot Access

Ballot access rules regulate the conditions under which a candidate or political party is entitled to appear on voters' ballots. Laws restricting which names may appear on the ballot have an obvious impact on the rights of candidates and political parties, but such laws also affect the rights of voters. The U.S. Supreme Court has observed that the rights of candidates and voters are closely intertwined. Bullock v. Carter, 405 U.S. 134 (1972).

Overview of ballot access in the U.S.

Each State has its own ballot access laws to determine who may appear on ballots and who may not. According to Article I, Section 4, of the United States Constitution, the authority to regulate the time, place, and manner of federal elections is up to each State, unless Congress legislates otherwise.

The main rationale put forward by States for restricting ballot access has been the argument that setting ballot access criteria too low would result in numerous frivolous candidates cluttering the ballot, which would cause confusion and waste the time of voters. However, proponents of ballot access reform say that reasonably easy access to the ballot does not lead to a glut of candidates, and that, even where many candidates do appear on the ballot, as was the case in the crowded 2003 California recall, actual election results show that such crowding does not in fact confuse voters.

Historically, there were generally no restrictions on ballot access in the United States until after the introduction of the so-called "Australian ballot" beginning in the 1880s. The eighteenth century prevalence of "voice voting" gave way to paper ballots, but until the 1880s paper ballots were not officially designed and printed by the government but were instead privately produced "tickets" that were distributed (usually by political parties) to the voter, who would take the ticket to the polling place and deposit it in the ballot box. The 1880s reform movement that led to officially designed secret ballots had some salutary effects, but it also gave the government control over who could be on the ballot. As historian Peter Argersinger has pointed out, the reform that conferred power on officials to regulate who may be on the ballot carried with it the danger that this power would be abused by officialdom and that legislatures controlled by the established political parties (specifically, the Republican and Democratic Parties), would enact restrictive ballot access laws to influence election outcomes, for partisan purposes, in order to ensure re-election of their own party's candidates.

Perhaps the most prominent advocate of the 1880s ballot reform movement, Dean Wigmore, suggested that "ten signatures" might be an appropriate requirement for nomination to the official ballot for a legislative office. In the twentieth century, ballot access laws imposing signature requirements far more restrictive than Wigmore had envisioned were enacted by many state legislatures, often in response to election victories by Socialists, Communists, or other disfavored political organizations; in almost all of these cases, the two major parties framed the laws in such a way that the burdens created by these new ballot access requirements (usually in the form of difficult signature-gathering petition drives) fell on alternative candidates, but not on major party candidates. Proponents of more open ballot access argue that restricting access to the ballot has the effect of unjustly restricting the choices available to the voters and typically disadvantages third party candidates and other candidates who are not affiliated with the established parties.

State laws, the Constitution, and international human rights

State ballot access laws

Ballot access laws in the United States vary widely from state to state. A brief outline of such laws follows

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota - Major party candidates are nominated by the state primary process. Independent and minor political party candidates are nominated by a petition process; two-thousand signatures for a statewide election, or five hundred for a state legislative election. Candidates have two week period to collect nominating petition signatures. Independent candidates may select a brief political party designation in lieu of independent.
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota - Seven thousand petition signatures to create a new political party and nominate a slate of candidates for office. Independent candidates need a thousand for a statewide office or 300 for a state legislative office. The independent nominiating petition process does not allow for candidates to appear on the ballot with a political party designation, in lieu of independent, except for presidential elections [1].
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota - For a registered political party in a statewide election they must collect petition signatures equal to one percent of the vote for the that political party in the preceding election for state governor. An independent candidate must collect petition signatures equal to one percent of the total votes for state governor, and a new political party must collect two-hundred and fifty petition signatures. In state legislative elections a registered political party needs to collect fifty signatures and an independent candidate must collect one percent of the total votes cast for state governor in the preceding election [2].
Tennessee – 25 signatures is all that is required as of 2006 to be put on the ballot for any elected office. A candidate for President of the United States must put foward a full slate of candidates who have agreed to serve as electors (11, at least until the 2010 census). A party must mainatain five percent of the vote statewide in order to be recognized as a party and have its candidates listed on the ballot under that party's name; the last third party to do so was the American Party in 1968; none of its candidates received five percent of the statewide vote in 1970 and it was then decertified as an official party.
Texas - For a registered political party in a statewide election to gain ballot access, they must either 1) obtain five percent of the vote in any statewide election or 2) collect petition signatures equal to one percent of the total votes cast in the preceding election for governor, and must do so by January 2 of the year in which such statewide election is held. An independent candidate for any statewide office must collect petition signatures equal to one percent of the total votes cast for governor, and must do so beginning the day after primary elections are held and complete collection within 60 days thereafter (if runoff elections are held, the window is shortened to beginning the day after runoff elections are held and completed within 30 days thereafter). The petition signature cannot be from anyone who voted in either primary (including runoff), and voters cannot sign multiple petitions (they must sign a petition for one party or candidate only). [3]
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Dist. of Columbia
Amer. Samoa
Guam
Puerto Rico
Virgin Islands

Constitutional dimensions of ballot access laws

State ballot access restrictions can affect fundamental constitutional rights, including:

the right to equal protection of the laws under the fourteenth amendment (when the restrictions involve a discriminatory classification of voters, candidates, or political parties)
rights of political association under the first amendment (especially when the restrictions burden the rights of political parties and other political associations, but also when they infringe on the rights of a candidate or a voter not to associate with a political party)
rights of free expression under the first amendment
rights of voters (which the Supreme Court has said are "inextricably intertwined" with the rights of candidates)
property interests and liberty interests in candidacy
other rights to "due process of law"

It has also been argued that ballot access restrictions infringe the following constitutional rights:

the right to "petition" the government (this argument is sometimes raised to allege that signature-gathering requirements, or the rules implementing them, are unfairly restrictive)
freedom of the press (which historically included the right to print ballots containing the name of the candidate of one's choosing);
the right to a "republican form of government," which is guaranteed to each state (although this clause has been held not to be enforceable in court by individual citizens)

From a structural point of view, ballot access restrictions affect the most fundamental rights in a democratic society.

The United States Supreme Court has upheld constitutional challenges to ballot access restrictions in a number of important cases, for example:

Williams v. Rhodes, 393 U.S. 23 (1968)
Anderson v. Celebrezze, 460 U.S. 780 (1983)
Bullock v. Carter, 405 U.S. 134 (1972)
Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)
Lubin v. Panish, 415 U.S. 709 (1974)
Norman v. Reed, 502 U.S. 279 (1992)

Various state courts and lower federal courts have also upheld constitutional challenges to ballot access restrictions, for example:

On the other hand, a number of court decisions are routinely cited as supporting the principle that states have considerable leeway, if justified by legitimate and compelling interests, to regulate who may appear on the ballot. The Supreme Court case cited most often this effect is Jenness v. Fortson, 403 U.S. 431 (1971), where the Court declined to strike down a very restrictive ballot access law in Georgia.

International human rights law and ballot access

International agreements that have the status of treaties of the U.S. are part of the supreme law of the land, under Article VI of the United States Constitution.

International Covenant on Civil and Political Rights, Art. 25
Copenhagen Document, 6-8, Annex I to 1990 Charter of Paris

Another source of international human rights law derives from universally accepted norms that have found expression in resolutions of the U.N. General Assembly. Although the Universal Declaration of Human Rights is not binding under U.S. law the way a treaty is, this type of norm is recognized as a source of international law in such treaties as the Statute of the International Court of Justice, to which the U.S. is a party:

Universal Declaration of Human Rights, Art. 21

Write-in status versus ballot access

Depending on the office and the state, it may be possible for a voter to cast a write-in vote for a candidate whose name does not appear on the ballot; but, it is extremely rare for such a candidate to win office. In some cases, write-in votes are simply not counted. Having one's name printed on the ballot confers an enormous advantage over candidates who are not on the ballot. The United States Supreme Court has noted that write-in status is absolutely no substitute for being on the ballot. One of the rare cases, and perhaps the most notable case, of a write-in candidate actually winning an election was Strom Thurmond's election as a write-in candidate to the United States Senate in 1954. More recent examples were the write-in election of Charlotte Burks to the Tennessee State Senate seat of her late husband, Tommy Burks, murdered by his only opponent on the ballot, and the write-in re-election of Mayor Anthony A. Williams of the District of Columbia. Each of these cases involved unique political circumstances, a popular and well-known candidate, and a highly organized and well-funded write-in education campaign.

Other obstacles facing third parties

The growth of any third political party in the United States faces extremely challenging obstacles, among them restrictive ballot access. Other obstacles often cited as barriers to third-party growth include:

the role of corporate money in propping up the two established parties
the allegedly related general reluctance of news organizations to cover minor political party campaigns
politically motivated gerrymandering of election districts by those already in power, in order to reduce or eliminate political competition
plurality voting and the absence of proportional representation
the lack of an educated and organized voter base identifying with a fledgling political party.

External links

Election Laws in Each State

Alabama