Ballot Access Developments in 1994

Forward Steps Outweigh Slips        

Richard Winger

Effect of Term Limits Decision on Ballot Access Law

        The most significant 1994 event relating to the struggle to improve ballot access laws was the oral argument before the U.S. Supreme Court on congressional term limits. The Congressional term limits case was so important because the Court was being forced to settle key constitutional questions relating to ballot access. One question was whether the qualifications to be a member of Congress mentioned in the Constitution were exclusive or whether states or Congress could add to them.
        Another question was to what extent the First Amendment protects a political party's right to nominate its candidate of choice. The Democratic Party of California filed an amicus brief arguing that term limits laws (with a write-in loophole) interfere with a party's right to choose its preferred nominee.
        Until these questions are settled [see postscript on next page -- ed], Congress will not spend much time or energy on ballot access. Readers may be aware that a bill was introduced in Congress in 1985, 1987, 1989 and 1993 to outlaw restrictive ballot access laws for federal offices -- laws more restrictive than nearly all other democracies. Some members of Congress argued that the federal bill was unconstitutional. The U.S. Supreme Court decision will surely settle that question.
        If the Supreme Court upholds state laws which keep long-time congressional incumbents off the ballot, but makes it clear that Congress can repeal them, then chances are fairly good that Congress will indeed repeal them. In that case, it may be possible to persuade Congress to include uniform ballot access laws, for Congress, in the same bill.
        If the Supreme Court rules that the state laws which keep long-time congressional incumbents off the ballot are unconstitutional, on the grounds that states cannot add to the qualifications listed in the U.S. Constitution to hold congressional office, then it will be easier to attack certain other state ballot access laws in court, such as:
        • Colorado's law which requires third party or independent candidates to have been registered "independent" for a full year before the candidate submits a petition to get on the ballot (in effect, this law acts as a one-year duration of residency requirement in the state, for congressional candidates) and;
        • Georgia's petition requirement for third party and independent candidates, which is so severe that no third party candidate for the U.S. House has ever qualified in the 52 years the law has existed.
        Federal courts have upheld both of these laws, but if the U.S. Supreme Court decides that states are powerless to add to the constitutional qualifications to hold congressional office, it will be possible to file new court challenges to these and similar laws.
        If the Supreme Court rules that the state laws which keep long-term congressional incumbents off the ballot are unconstitutional on the grounds that they violate the First Amendment rights of political parties to decide for themselves whom they nominate, it will be easier to attack a different type of state ballot access in court. For example:
        • California's law which says small qualified parties cannot nominate a non-member for public office, even though the Democrats and Republicans may do so (by write-in votes in the primaries);
        • Maine's law which says that even though a small party is entitled to hold its own primary election, at state expense, it may not nominate any candidates in that primary;
        • Maryland's law which says that even after a new party qualifies for "party" status, it cannot place any nominee on the general election ballot (except for president) unless it submits a candidate petition signed by 3% of the registered voters and;
        • Most states, in which laws forbid a qualified political party from nominating someone as a candidate who is also the candidate (for the same office) of another qualified party.

1994 Ballot Access Developments In State Legislatures

        1994 was a fairly good year for winning ballot access improvements in state legislatures:
        • Connecticut lowered the number of signatures for a statewide third party or independent candidate, from 1% of the last vote cast (about 15,000 signatures for president) to a flat 7,500.
        • Kansas changed the deadline for a new party to qualify for the ballot, from April to June.
        • Nebraska eased up on where people may petition. Formerly, no one could circulate a petition outside of his or her own county. Now, he or she may work anywhere in the state.
        • Virginia also loosened up somewhat on who may circulate a petition to get a third party or independent presidential candidate on the ballot. Formerly, no one could circulate a petition outside of his or her own congressional district. Now, a circulator may also work in neighboring districts.
        • Rhode Island created a petition procedure for voters to qualify a new party. Formerly, the only way to create a new qualified political party in Rhode Island was for a group to run someone for Governor and poll 5%. Now the voters can create a new qualified party, by petition, without having to wait for a good showing in a gubernatorial election.
        On the other hand, bills to improve ballot access were defeated in Georgia, Illinois, Indiana, Kentucky, Maryland and Oklahoma.

1994 Ballot Access Developments in Court

There were some 1994 victories for easier ballot access in court:
        • Colorado: A federal judge ruled that it is unconstitutional to require petitioners to wear badges giving their name. The state is appealing.
        Another Colorado federal judge ruled that the state cannot require 1,000 signatures to get a third party or independent candidate on the ballot for state legislative elections, as long as the state only requires 500 signatures for U.S. House of Representatives (given that legislative districts have fewer constituents than congressional districts).
        However, the state is threatening to increase the number of signatures for congressional candidates, so this may have been a pyrrhic victory.
        • Florida: The 11th circuit invalidated Florida's ballot access procedures for getting on the presidential primary ballots of the Democratic and Republican Parties.
        • Nevada and New Mexico: State Supreme Courts in both states ruled that a qualified minor party may nominate any current member, regardless of whether that candidate was a registered member of that party for all of the preceding six months.
        • New York: The highest state court ruled that an unqualified party may substitute a new nominee as late as the qualified parties may substitute.
        • North Carolina: A federal court ruled that it is unconstitutional for the state to require third party and independent candidates to pay the costs of checking their signatures.
        Ballot access defeats occurred in court in Arkansas, Florida, Georgia, Kansas, New York, North Carolina and Washington state.
        The New York loss was particularly disappointing. A U.S. District Court had thrown out a New York law requiring all signatures on petitions to include the signer's precinct number and legislative district number -- since few people know their precinct number, the group circulating the petition must look up this information and add it for each signature, which takes thousands of work-hours.
        The U.S. Court of Appeals said in November 1994 that it was affirming this decision and would explain later; but in December that Court changed its mind and reversed the lower court decision.

Administrative Rulings

        State elections officials in Washington and Oklahoma ruled that a new or unqualified party can circulate a petition with a stand-in presidential candidate if the group has yet to choose its actual candidate. These rulings will help third parties if they do not wish to choose their presidential candidate until the summer of a presidential election year. Similar rulings are being sought in Kentucky and West Virginia, but there is no decision yet.

        Richard Winger is editor of Ballot Access News, a monthly publication available from: Box 470296, San Francisco, CA 94123 (415-922-9779).

        Term Limits Ruling Helps Ballot Access
        The Supreme Court's ruling against imposition of term limits for congressional elections in U.S. Term Limits v. Thornton has two clear benefits for ballot access challenges:
        1) For the first time it will be possible to submit evidence about state legislators' motivation when a ballot access lawsuit is filed. The Court found that because the motivation of the authors of the Arkansas law to limit congressional terms was obviously to limit terms, alleged "loopholes" did not matter.
        2) There is now a benchmark for ballot access constitutional challenges, at least for congressional elections: a ballot access law is likely to be unconstitutional, at least for Congress, if it "favors or disfavors a class of candidates" and has no election-administration-related purpose.
                • Winger, 6/1/95 Ballot Access News


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Chapter Six