Ballot access

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Ballot access in the United States refers to the rules and procedures regulating the conditions under which a candidate, political party, or ballot measure is entitled to appear on voters' ballots. [1] As the nation's election process is decentralized by Article I, Section 4, of the United States Constitution, ballot access laws are established and enforced by the states. [2] As a result, ballot access processes may vary from one state to another. State access requirements for candidates generally pertain to personal qualities of a candidate, such as: minimum age, residency, citizenship, and being a qualified voter. Additionally, many states require prospective candidates to collect a specified number of qualified voters' signatures on petitions of support and mandate the payment of filing fees before granting access; ballot measures are similarly regulated (as is the wording and format of petitions as well). Each state also regulates how political parties qualify for automatic ballot access, and how those minor parties that do not can. Fundamental to democracy, topics related to ballot access are the subject of considerable debate in the United States.



In order to get on the ballot, a candidate, political party, or ballot measure must meet a variety of requirements. The Elections Clause in Article I of the Constitution states that "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof." Consequently, each state may design its own unique criteria for ballot access. [2] The United States is one of the very few nations that does not have uniform federal ballot access laws. [3]

The primary argument put forward by States for restricting ballot access has been the presumption that setting ballot access criteria too low would result in numerous candidates on the ballot, splitting the votes of similar minded voters. Example: With plurality voting, also known as First past the post, the candidate with the most votes wins, even if the candidate does not have a majority of the votes. Suppose 55% Belief A and 45% Belief B vote in a district. If two candidates appeal to A, but only one appeals to B, the votes of A could split between the two A candidates, say 25% vote for one and 30% for the other, giving the B candidate the office although 55% preferred to see an A candidate in the office. However, proponents of ballot access reform say that reasonably easy access to the ballot does not lead to a glut of candidates, even where many candidates do appear on the ballot. The 1880s reform movement that led to officially designed secret ballots, such as the Australian ballot, had some salutary effects, but it also gave the government control over who could be on the ballot. [4] As historian Peter Argersinger has pointed out, the reform that empowered officials to regulate access onto the ballot, also carried the danger that this power would be abused by officialdom and that legislatures controlled by established political parties, would enact restrictive ballot access laws to ensure re-election of their party's candidates. [5]

Perhaps the most prominent advocate of the 1880s ballot reform movement, John Henry Wigmore, suggested that "ten signatures" might be an appropriate requirement for nomination to the official ballot for a legislative office. [6] In the 20th century, ballot access laws imposing signature requirements far more restrictive than Wigmore had envisioned were enacted by many state legislatures; in many cases, the two major parties wrote the laws such that the burdens created by these new ballot access requirements (usually in the form of difficult signature-gathering nominating petition drives) fell on alternative candidates, but not on major party candidates. Proponents of more open ballot access argue that restricting ballot access has the effect of unjustly restricting the choices available to voters, and typically disadvantages third party candidates and other candidates who are not affiliated with the established parties. [7] [8]

President George H. W. Bush signed the Copenhagen Document of the Helsinki Accords that states in part:

(7.5) – respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination; (7.6) – respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities;...

The Organization for Security and Co-operation in Europe (OSCE) has criticized the United States for its ballot access laws. In 1996, United States delegates responded to the criticism by saying that unfair ballot access "could be remedied through existing appeal and regulatory structures and did not represent a breach of the Copenhagen commitments." [9] The OSCE published a report on the 2004 United States election, which among other things, noted restrictive ballot access laws. [10]

Ballot access laws by state

Ballot access laws in the United States vary widely from state to state:

Activists of the Arizona Green Party collecting signatures for ballot status Arizona Greens ballot status signature collectors 20080209.jpg
Activists of the Arizona Green Party collecting signatures for ballot status

Constitutional dimensions of ballot access laws

The Constitution has limited the states' discretion to determine their own ballot access laws:

The US Supreme Court precedent on ballot access laws cases has been conflicting. [45] In Williams v. Rhodes (1969) the court struck down Ohio's ballot access laws on First and Fourteenth Amendment grounds. During the 1970s the Supreme Court upheld strict ballot access laws, with a 'compelling State interest' being the "preservation of the integrity of the electoral process and regulating the number of candidates on the ballot to avoid voter confusion." [46]

The Supreme Court did strike down provisions in a ballot access law in Anderson v. Celebrezze , 460 U.S. 780 (1983), but most of the subsequent court rulings in the 1980s–2000s continued to uphold ballot access laws in both primary and general elections. Among the most notable of these cases from the 1970s–1990s:

The Supreme Court has not expressly ruled on the maximum level of restrictions that can be imposed on an otherwise qualified candidate or political party seeking ballot access. As a result, lower courts have often reached difficult conclusions about whether a particular ballot access rule is unconstitutional.

Requiring an otherwise eligible candidate or political party to obtain signatures greater than 5% of the eligible voters in the previous election may be unconstitutional. This is based on Jenness v. Fortson, 403 U.S. 431 (1971); the court upheld a restrictive ballot access law with this 5% signature requirement, whereas the Williams v. Rhodes (1969) had involved a 15% signature requirement. [47] Most State ballot access requirements, even the more restrictive ones, are less than 5%, and the Supreme Court has generally refused to hear ballot access cases that involved an Independent or minor party candidate challenging a ballot access law that requires less than 5%. [48]

International human rights law and ballot access

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

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 US 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 US is a party:

(NB: to be completed)

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. It is extremely rare for such a candidate to win office. In some cases, write-in votes are simply not counted. [49] Having one's name printed on the ballot confers an enormous advantage over candidates who are not on the ballot. The US Supreme Court has noted that write-in status is not a substitute for being on the ballot. [50] [51]

The two most notable cases of write-in candidates actually winning are the elections of Lisa Murkowski in 2010 and Strom Thurmond in 1954, both to the United States Senate. Other cases include the 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 primary victories in the re-election campaign of Mayor Anthony A. Williams of the District of Columbia. All 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[ by whom? ] as barriers to third-party growth include:

Justification of strict ballot access laws by two party supporters

Strict ballot access laws are not required for a two–party system, as can be seen by the experience of the United Kingdom. However, the following arguments are put forth about the need for strict ballot access laws in the United States:

See also

Related Research Articles

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A write-in candidate is a candidate whose name does not appear on the ballot but seeks election by asking voters to cast a vote for the candidate by physically writing in the person's name on the ballot. Depending on electoral law it may be possible to win an election by winning a sufficient number of such write-in votes, which count equally as if the person was formally listed on the ballot.

Libertarian Party of Oklahoma Oklahoma affiliate of the Libertarian Party

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Elections in California

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Qualified New York political parties

In New York State, to qualify for automatic ballot access, a party must have qualify every two years by receiving the greater 130,000 votes or 2% of the vote in the previous gubernatorial election or presidential election. In years with a gubernatorial election or presidential election a party must run a gubernatorial candidate or a presidential candidate to be eligible for automatic ballot access; if 130,000 voters vote for that candidate on their party line, they have qualified the party for the next two years until the following presidential or gubernatorial general election whichever one comes first. A party that is not qualified may run candidates by completing a petition process. Parties are also allowed to cross-endorse candidates, whose votes are accumulated under electoral fusion, but any parties must cross-endorse both the governor and lieutenant governor candidates for fusion to apply. Parties that are already qualified must issue a Wilson Pakula authorization if they cross-endorse someone not enrolled in that party; there are no restrictions on who can be nominated on a non-qualified ballot line, as these lines are determined by filing petitions.

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Anderson v. Celebrezze, 460 U.S. 780 (1983), was a United States Supreme Court case in which the Court held that Ohio's filing deadline for independent candidates was unconstitutional.

N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008), was a case decided by the United States Supreme Court that involved a constitutional challenge brought against New York State's judicial election law, alleging that it unfairly prevented candidates from obtaining access to the ballot. The Supreme Court rejected this challenge and held that the state's election laws did not infringe upon candidates' First Amendment associational rights. Several concurring justices emphasized, however, that their decision reflected only the constitutionality of the state's election system, and not its wisdom or merit.

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