Ballot access

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Ballot access are rules and procedures regulating the right to candidacy, the conditions under which a candidate, political party, or ballot measure is entitled to appear on voters' ballots in elections in the United States. [1] The jurisprudence of the right to candidacy and right to create a political party are less clear than voting rights in the United States. [2] However, the U.S. Supreme Court has established in multiple cases that the federal constitution does not recognize a fundamental right to candidacy, [3] [4] and that state governments have a legitimate government interest in blocking "frivolous or fraudulent candidacies". [5] [6] [7] As election processes are decentralized by Article I, Section 4, of the United States Constitution, ballot access laws are established and enforced by the states. [8] 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, and citizenship. 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.

Contents

In order to get on the ballot, a candidate, political party, or ballot measure must meet various 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. [8] The United States is one of the few nations that do not have uniform national laws on ballot access. [9]

Arguments

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. [10] 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. [11]

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. [12] 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. [13] [14]

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." [15] The OSCE published a report on the 2004 United States election, which among other things, noted restrictive ballot access laws. [16]

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
To be recognized, a political party must gain 50,000 votes in the most recent gubernatorial election. (There are, as of 2019, eight such parties. Three of these have primarily resorted to electoral fusion and usually only nominate candidates already on either the Democratic or Republican lines.) This allows for primary elections and allows statewide candidates to be exempted from having to petition. Any other candidate must file petitions. For statewide candidates, 15,000 signatures are required, and there must be at least 100 signatures from each of at least 1/2 of the congressional districts in the state (27 as of 2014). All state legislature and congressional candidates must file petitions regardless of party nominations, except in special elections. Village and town elections have less restrictive ballot access rules. [37]

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. [58] 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." [59]

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. [60] 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%. [61]

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. [62] 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. [14] [63]

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. [64] [65] 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 [66] 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

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References

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  43. ↑ "N.C.G.S. §163-97.1 Voters affiliated with expired political party". Ncleg.net. Retrieved 9 May 2010.
  44. 1 2 "N.C.G.S. §163-122 Unaffiliated candidates nominated by petition". Ncleg.net. Archived from the original on 17 April 2010. Retrieved 9 May 2010.
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  47. ↑ http://www.lpo.org/pressreleases/SecretaryofStateEasesRestrictions.shtml [ permanent dead link ] "Secretary of State Eases Restrictions on LPO Ballot Access", Libertarian Party of Ohio, 22 May 2007. Retrieved 22 September 2008
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  51. ↑ "Qualifying Procedures for Tennessee Candidates for United States House of Representatives", Tennessee Division of Elections. Retrieved 3 November 2008.
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  59. ↑ "Constitutional Right To Candidacy." Nicole A. Gordon Political Science Quarterly Volume 91, Number 3, 1976
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  61. ↑ "Oklahoma Supreme Court Won't Hear Ballot Case – Libertarian Ballot Access Case Had Been Filed in 2004", Ballot Access News, 1 June 2007. Retrieved 22 September 2008
  62. ↑ "Writing in your vote for president? It might not get counted". PBS NewsHour. 2016-10-31. Retrieved 2019-12-30.
  63. ↑ "Anderson v. Celebrezze, 460 U.S. 780 (1983)". Justia Law. Retrieved 2019-12-30.
  64. ↑ "Alaska - Election Results 2010 - The New York Times". www.nytimes.com. Retrieved 2021-09-16.
  65. ↑ "U.S. Senate: Senator Elected on a Write-in Ballot". www.senate.gov. Retrieved 2021-09-16.
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Bibliography

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