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Ballot access rules, called nomination rules outside the United States, regulate the conditions under which a candidate or political party is either entitled to stand for election or to appear on voters' ballots. The criteria to stand as a candidate depends on the individual legal system, however they may include the age of a candidate, citizenship, endorsement by a political party and profession.^[1] Legal restrictions, such as those based around competence or moral aptitude, can be used in a discriminatory manner. Restrictive and discriminatory ballot access rules can impact the civil rights of candidates, political parties and voters.

Ballot access in the United States of America

Overview of ballot access in the U.S.

Each state has its own ballot access laws to determine who may appear on ballots and who may not. According to Article I, Section 4, of the United States Constitution, the authority to regulate the time, place, and manner of federal elections is up to each State, unless Congress legislates otherwise.

The primary argument put forward by States for restricting ballot access has been the rational conclusion 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, and old but common way to pick the winner, the candidate with the most votes wins, even if it is not a majority. Suppose a district is 55% Democrat and 45% Republican, or vise versa. If there are two candidates which appeal to democrats, and one who appeals to republicans, the vote of the democrats will likely be split between the first two candidates, and the republican will win even though 55% strongly prefer someone else. Plurality races, also known as First past the post, tend to cause consolidation among political parties for this reason. Also, it would be expensive to print 100+ names on a ballot. 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, as was the case in the crowded 2003 California recall. In that case, such actual crowding did not confuse voters: "Even though 135 candidates appeared on the ballot, newspapers reported that voters did not have trouble finding the candidate they wished to vote for."^[2]

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; in many cases, the two major parties wrote the laws in such a way 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.^[3] 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 disadvantages third party candidates and other candidates who are not affiliated with the established parties.

State laws, the Constitution, and international human rights

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

The United States has been criticized by the Organization for Security and Co-operation in Europe (OSCE) for its harsh ballot access laws in the past. In 1996, United States delegates responded to the criticism by saying, unfair ballot access "could be remedied through existing appeal and regulatory structures and did not represent a breach of the Copenhagen commitments."^[4]

The OSCE published a report on the 2004 United States election, which, among other things, noted restrictive ballot access laws.^[5]

The United States and Switzerland are the only countries in the world that don’t have national ballot access standards for federal elections;^[6] however in Swiss federal elections each Canton elects its own representatives, and each candidate can only be listed in one Canton. Since 1985, Democrats and Republicans (including Congressman John Conyers (D-MI), Congressman Tim Penny (D-MN) and Congressman Ron Paul (R-TX)) have repeatedly introduced in the US House of Representatives a bill that would set maximum ballot access requirements for House elections. The bill has only made it to the House floor once, in 1998, when it was defeated 62-363.

The interest group Friends of Democracy has also introduced a proposed "Political Liberty Amendment", which would address these electoral reform issues.

While some supporters of easy ballot access seek congressional intervention, other reformers are happy congress has not mandated stricter access laws in all states. Reducing access requiements at the local level would be easier than doing so federally if congress wanted to guarantee its re-elections.

State ballot access laws

Ballot access laws in the United States vary widely from state to state. A brief outline of such laws follows (incomplete).

• Alabama: Major party candidates are nominated by the state primary process. Independent candidates are granted ballot access through a petition process and minor political party candidates are nominated by convention along with a petition process; one must collect 3% of the total votes cast in the last election for the specific race or 3% of the total votes cast in the last gubernatorial election for state-wide ballot access. The figure for 2006 state wide ballot access was 41,012 good signatures. Be aware that the validity of signatures generally means that 20-30% more signatures will need to be collected to ensure that the goal is achieved. To retain ballot access a third party has to poll 20% in a state wide race and it will retain state wide ballot access through to the next election.

Activists of the Arizona Green Party collecting signatures for ballot status.

• Arizona: To gain ballot access, a new political party must gather signatures on a county by county basis, achieving over 20,000 good signatures from registered voters. Once this has been achieved the party must run a candidate for Governor or President who garners at least 5% of the vote to maintain ballot access for an additional two years, maintain at least 1% of registered voters registered with their party, or gather approximately the same number of signatures again every two years. The Democratic, Libertarian, and Republican parties have ballot access by voter registrations. In 2008, the Arizona Green Party gathered enough signatures to gain ballot access.^[7]
• California: Per section 5100 of the California Election Code, ballot access requires one of the two conditions below to be met.^[8]
  • If at the last preceding gubernatorial election there was polled for any one of the party's candidates for any office voted on throughout the state, at least 2 percent of the entire vote of the state.
  • If on or before the 135th day before any primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their political affiliations transmitted to him or her by the county elections officials, that voters equal in number to at least 1 percent of the entire vote of the state at the last preceding gubernatorial election have declared their intention to affiliate with that party.
• Colorado: Colorado has relatively lax ballot access requirements. For U.S. Senate, 1,000 signatures are required; for U.S. House, 800 signatures; for State Senate, 600 signatures; and for State House, 400. Sometimes these requirements are relaxed even further based on the voting statistics of the district.^[9]
• Maryland: Party certifications are done for each gubernatorial cycle (e.g. 2006–2010). If the number of registered voters to a political party is less than 1%, then 10,000 petition signatures must be gathered for that party to be considered certified. A party must be certified before voters can register under that party. A party can also be certified for a two year term if their candidate receives more than 1% of the vote.
• Minnesota: Major party candidates are nominated by the state primary process. Independent and minor political party candidates are nominated by a petition process; two-thousand signatures for a statewide election, or five hundred for a state legislative election. Candidates have two week period to collect nominating petition signatures. Independent candidates may select a brief political party designation in lieu of independent.
• New York: A new party or independent candidate may gain ballot access for one election by collecting a set number of petition signatures for each office (or 5 percent of the votes cast for governor in the most recent election in the jurisdiction, if that is lower). A new party that wins 50,000 votes for governor is recognized statewide as a political party and qualifies to participate in primary elections for four years. This total can be and often is obtained through electoral fusion. Candidates may gain access to primary election ballots by being "designated" by a relevant committee of the party or collecting signatures equal to 5 percent of the party's enrollment in the jurisdiction, up to a set number for each office. A candidate seeking the nomination of a party to which she or he does not belong – e.g. for purposes of fusion – must be authorized by a relevant committee of the party.
  See also: Qualified New York Parties
• North Dakota: Seven thousand petition signatures to create a new political party and nominate a slate of candidates for office. Independent candidates need a thousand for a statewide office or 300 for a state legislative office. The independent nominating petition process does not allow for candidates to appear on the ballot with a political party designation, in lieu of independent, except for presidential elections.^[10]
• Ohio: Late in 2006, the 6th U.S. Circuit Court of Appeals invalidated Ohio's law for ballot access for new political parties in a suit brought by the Libertarian Party of Ohio.^[11] After the November elections, the outgoing Secretary of State and Attorney General requested an extension to file an appeal to the U.S. Supreme Court so that the decision whether or not to appeal could be made by the newly elected Secretary of State and Attorney General. The new Secretary of State did not appeal, but instead asserted her authority as Chief Election Officer of Ohio to issue new ballot access rules. In July, 2008, a U.S. District Court invalidated the Secretary of State's rules and placed the Libertarian Party on the ballot.^[12] Three other parties subsequently sued and were placed on the ballot by the Court or by the Secretary of State.
• Oklahoma: A party is defined either as a group that polled 10% for the office at the top of the ticket in the last election (i.e., president or governor), or which submits a petition signed by voters equal to 5% of the last vote cast for the office at the top of the ticket. An independent presidential candidate, or the presidential candidate of an unqualified party, may get on the ballot with a petition of 3% of the last presidential vote. Oklahoma is the only state in the nation in which an independent presidential candidate, or the presidential candidate of a new or previously unqualified party, needs support from more than 2% of the last vote cast to get on the ballot. An initiative is being circulated during the period Sep. 14, 2007-Dec. 13, 2007 to lower the ballot access rules for political parties.
• Pennsylvania: A new party or independent candidate may gain ballot access for one election as a "political body" by collecting petition signatures equal to 2 percent of the vote for the highest vote-getter in the most recent election in the jurisdiction. A political body that wins two percent of the vote obtained by the highest vote-getter statewide in the same election is recognized statewide as a "political party" for two years. A political party with a voter enrollment equal to less than 15 percent of the state's total partisan enrollment is classified as a "minor political party," which has automatic ballot access in special elections but must otherwise collect the same number of signatures as political bodies. Political parties not relegated to "minor" status qualify to participate in primary elections. Candidates may gain access to primary election ballots by collecting a set number of petition signatures for each office, generally significantly fewer than required for political bodies and minor political parties.
• South Dakota: For a registered political party in a statewide election they must collect petition signatures equal to one percent of the vote for that political party in the preceding election for state governor. An independent candidate must collect petition signatures equal to one percent of the total votes for state governor, and a new political party must collect two-hundred and fifty petition signatures. In state legislative elections a registered political party needs to collect fifty signatures and an independent candidate must collect one percent of the total votes cast for state governor in the preceding election.^[13]
• Tennessee: A candidate seeking a House or Senate seat at the state or national level must gather 25 signatures from registered voters to be put on the ballot for any elected office.^{[14][15][16][17]} Presidential candidates seeking to represent an officially recognized party must either be named as candidates by the Tennessee Secretary of State or gather 2,500 signatures from registered voters, and an independent candidate for President must gather 275 signatures and put forward a full slate of eleven candidates who have agreed to serve as electors.^[18] In order to be recognized as a party and have its candidates listed on the ballot under that party's name, a political party must gather signatures equal to or in excess of 2.5% of the total number of votes cast in the last gubernatorial election (about 45,000 signatures based on the election held in 2006).^[19] The last third party to be officially recognized was the American Party in 1968; none of its candidates received five percent of the statewide vote in 1970 and it was then subject to desertification as an official party.
• Texas: For a registered political party in a statewide election to gain ballot access, they must either 1) obtain five percent of the vote in any statewide election or 2) collect petition signatures equal to one percent of the total votes cast in the preceding election for governor, and must do so by January 2 of the year in which such statewide election is held. An independent candidate for any statewide office must collect petition signatures equal to one percent of the total votes cast for governor, and must do so beginning the day after primary elections are held and complete collection within 60 days thereafter (if runoff elections are held, the window is shortened to beginning the day after runoff elections are held and completed within 30 days thereafter). The petition signature cannot be from anyone who voted in either primary (including runoff), and voters cannot sign multiple petitions (they must sign a petition for one party or candidate only).^[20]
• Virginia: A candidate for any statewide or local office must be qualified to vote for as well as hold the office to which they are running for, must have been "a resident of the county, city or town which he offers at the time of filing", a resident of the district if it is an election for a specific district, and a resident of Virginia for one year before the election. For any office the candidate must obtain signatures of at least 125 registered voters for the area to which they are running for office (except in communities of fewer than 3,500 people, where the number is lower), and if they are running as a candidate from a political party where partisan elections are permitted, must pay a fee of 2% of their yearly salary (no fee is required for persons not running as a candidate for a primary of a political party). Petitions, along with additional paperwork, must be filed between about four and five months before the election, subject to additional requirements for candidates for a primary election.^[21] 1,000 signatures are required for a U.S. House race and 10,000 for a statewide race (i.e. U.S. President, U.S. Senate, Governor, Lieutenant Governor, or Attorney General), including 400 from each Congressional district.^[22]

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 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.

(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. The law in question required third party candidates seeking a nomination petition to obtain signatures no less than 5% of eligible voters in the previous election for that particular office.^[23] In most states, the requirement is less than 2%.^[24]

International human rights law and ballot access

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

• International Covenant on Civil and Political Rights, Art. 25
• Copenhagen Document, ¶¶6-8, Annex I to 1990 Charter of Paris

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 U.S. 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 U.S. is a party:

• Universal Declaration of Human Rights, Art. 21

(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; but, it is extremely rare for such a candidate to win office. In some cases, write-in votes are simply not counted. Having one's name printed on the ballot confers an enormous advantage over candidates who are not on the ballot. The United States Supreme Court has noted that write-in status is absolutely no substitute for being on the ballot. One of the rare cases, and perhaps the most notable case, of a write-in candidate actually winning an election was Strom Thurmond's election as a write-in candidate to the United States Senate in 1954. More recent examples were the write-in 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. Each 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 as barriers to third-party growth include:

• Campaign funding re-imbursement for any political party that gets at least 5% of the vote --- Implemented in many states "to help smaller parties", the typical result is to help the two biggest parties;
• laws intended to fight corporate donations and all loop holes being so long that a team of lawyers is needed to navigate the laws;
• the role of corporate money in propping up the two established parties;
• the allegedly related general reluctance of news organizations to cover minor political party campaigns;
• moderate voters being divided between the major parties, or registered independent, so that both major primaries are hostile to moderate or libertarian candidates;
• politically motivated gerrymandering of election districts by those already in power, in order to reduce or eliminate political competition (two party proponents would argue that the minority party in that district should just nominate a more centrist candidate relative to that district);
• plurality voting scaring voters from voting for any candidate other than the lessor of evils, who is reported to have a chance of winning;
• the absence of proportional representation;
• the public view that third parties have no chance of beating the worser of eveils, and are therefore a wasted vote;
• campaign costs of convincing interested voters that the party nominee has a chance of winning, and regaining that trust after an election where the third party got the third most votes (not a problem with Instant Runoff voting or condorcet voting);

Justification of ballot access laws by two party supporters

• With plurality voting, allowing third candidates on the ballot could split the vote of a majority and throw the race to a candidate a majority dislike. Allowing only two candidates on the ballot insures that at least the worst one is never elected.
• If a third party could get enough votes to win an election, then voters who would support the nominee could infiltrate one of the two parties by registering as members, and force a win in that party's primary. However, pulling this off would take considerable coordination on the part of the supporting voters, especially if half of them preferred to infiltrate the other major party or remain independent. It would also depend on the rules of the major party for how people may become candidates in their primary, and which registered members may vote in the primary.
• There is a one person one vote mandate. If voters could vote in a primary for one candidate, and then sign a petition for another candidate, this would violate that mandate. Some voters might sign a petition for the candidate they want, and then vote in the primary for the candidate who would be easier to beat. Since primary votes are anonymous, and a presidential orangutan therefore can not remove that voter's vote after it is caste, the only remedy is to strike the voter's signature on the petition. As for signatures not counting if a voter later votes in a primary, that could be reformed since the political party would know in advance about the signatures if they are filed in time.
• Sore loser laws, where a candidate who loses in a primary may not then run as an independent candidate in that same election, stem from contract laws. Similar minded candidates run in the same primary with the contract that the losers will drop out of the race and support the winner so that they do not split the votes of similar minded voters and cause the other party's nominee to win with 40% of the vote. The need for primaries is primarily because of plurality voting, whose rules state that the candidate receiving the most votes wins, even if not a majority.
• Strict ballot access laws make it difficult for extremists to get on the ballot, since few people would want to sign their petition.

Claimed problems with the two party system

• Two party systems tend to be moderately polarizing, with few centrists elected.
• Usually at least one of the parties has a majority in the legislatures, especially after gerrymandering.
• A moderately polarized majority running the state could turn it to tyranny of the majority, though the filabuster, bicameral legislature, and governor tend to mitigate this.
• Centrist voters tend to be independent, or split between the two parties, or not vote at all, and thus rarely have the majority necessary to win the primary in either party. Their primary vote serves mostly to pick the more centrist of the two in the top two runoff, and to elect the more centrist of the two moderately extreme candidates in the general election.
• If ballot access is difficult, and political parties with their freedom of association have the right to exclude voters from their primaries, then it is possible for a district to have one candidate on the general ballot, and a large portion of voters unable to vote in the primary, thus not being able to vote at all.

See also

Politics portal

• Ballot Access News
• Coalition for Free and Open Elections

References

External links

• ACE Encyclopaedia: Comparative Data: Ballot Access Issues
• Ballot Access News
• 1998 European Ballot Access Law
• More Voter Choice (Washington State)
• Friends of Democracy - election law reform in Minnesota, North Dakota and South Dakota
• A legal analysis of over 50 years of ballot access discrimination against third parties in the US by Theresa Amato, national campaign director for Ralph Nader, in the Harvard Law Record

Bibliography

• Dimitri Evseev. "A Second Look At Third Parties: Correcting The Supreme Court's Understanding of Elections". Boston University Law Review. Vol. 85:1277 (2005).
• Essays By Richard Winger. Ballot Access News. (http://www.ballot-access.org/winger/essays.html)