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 |