Ballot access rules regulate the conditions under which a ballot initiative, candidate or political party is entitled to appear on voters' ballots. Laws restricting which ballot measures and candidate names may appear on the ballot have an obvious impact on the rights of candidates, political parties, and ballot measure proponents but such laws also affect the rights of voters. The Supreme Court of the United States 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 which ballot measures may appear on ballots.
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 ballot measures and 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 options, and that, even where many choices 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, Libertarians, Greens 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 disadvantaged third party candidates and other candidates who are not affiliated with the established parties.
State ballot access laws for ballot measures
Ballot access laws for initiative and referendum in the United States vary widely from state to state. States with initiative or referendum includes comprehensive information about the ballot access laws in each of those states.
Wikipedia's article on ballot access includes a state-by-state description of ballot access laws for candidates and political parties.
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 US 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)
(NB: to be completed)
From a structural point of view, ballot access restrictions affect the most fundamental rights in a democratic society. (NB: to be completed)
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:
(NB: to be completed)
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.
- Ballot Access News
- Ballot Access article on Wikipedia
- United States Constitution from Cornell Law School