Ballot Access in Historical Context
Over the last several decades, the percentage of Americans who self-identify as independents has climbed to above 40 percent while attachment to the Democratic and Republican parties has declined. And in recent months, broad dissatisfaction with the presidential nominees of both parties has caused the public to look to third party and independent options to find candidates who better represent their views.
Yet despite this shift in support, third party and independent candidates have faced and continue to face obstacles in securing access to general election ballots (not to mention access to debates). The Green Party, for instance, is mounting legal challenges to state restrictions in its efforts to appear on as many ballots as possible, and the campaign of independent candidate Evan McMullin has stated its intention to do the same. And while Libertarian Party presidential candidate Gary Johnson is likely to appear on ballots in all 50 states, this has not been without some struggle and controversy.
Though many have grown accustomed to seeing few options during a general election, as a matter of history, onerous ballot access requirements and having a narrow range of choices are relatively new phenomena in American politics. Such strict requirements began to arise after the contentious presidential election of 1912 and proliferated significantly in the 1930s and 1940s.
Parties and candidates from across the spectrum challenged these restrictions in state and federal courts, and beginning in the 1960s, some of these challenges percolated all the way up to the Supreme Court. It is the Court’s decisions from that decade onwards that have established lasting precedents in the domain of ballot access and created the political environment – for better and for worse – in which third party and independent candidates must compete today.
The Supreme Court and Ballot Access
Prior to its series of ballot access rulings beginning with Williams v. Rhodes in 1968, the Court recognized the importance of pluralism and electoral competition in a strong and vibrant democracy.
In Sweezy v. New Hampshire (1957), for instance, the Court wrote, “Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents,” adding, “All political ideas cannot and should not be channeled into the programs of two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted.”
And in Reynolds v. Sims (1964), the Court stated that “The right to vote freely for the candidate one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”
These statements undergirded and forecast the Court’s ruling in Williams v. Rhodes, when the Court invalidated Ohio’s overly restrictive rules pertaining to ballot access for presidential candidates, which the majority described as “invidiously discriminatory” toward challengers to the Democratic and Republican parties.
Yet, as we’ll see below, this ruling was just the first of several important ballot access decisions (though the sample below is by no means exhaustive), and subsequent rulings created a body of precedents that have determined – with some degree of specificity – what sorts of requirements serve a legitimate state interest and what sort of requirements unconstitutionally restrict the rights of voters, candidates, and parties.
Williams v. Rhodes (1968)
In 1968, both the American Independent Party (supporting George Wallace) and the Socialist Labor Party challenged Ohio’s laws stipulating that to access the general election ballot, a party had to collect signatures equal to 15 percent of the number of votes cast in the last gubernatorial election and submit its petition two months before the major parties’ primaries. (The AIP submitted more than the requisite 433,000 signatures but not until after the February 1968 deadline; the SLP, with slightly more than 100 members, did not submit enough signatures.)
The plaintiffs based their argument primarily on the equal protection clause of the Fourteenth Amendment, noting that other parties needed to win only 10 percent of the vote in the previous gubernatorial election to remain on the ballot. The AIP also cited the earlier deadline for the submission of the petition as unequal and discriminatory.
The state defended its laws by citing Article II of the Constitution, which allows state legislatures to decide who its electors will be. It was therefore free to determine whether to hold an election, and, if it did, the state argued, to determine how to run that election. During oral arguments, the state’s lawyer also said it had “a legitimate interest in protecting against the distortion of the popular vote against the two candidates having a chance to win.”
In its decision, the six-member majority agreed that Ohio’s rules violated the Fourteenth Amendment, and Wallace was able to appear on the November ballot. Writing for the majority, Justice Hugo Black wrote – in language reminiscent of the Court’s statements in the Sweezy and Sims cases,”The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot, and thus denied an equal opportunity to win votes.”
Jenness v. Fortson (1970)
Two years later, the Court accepted a case challenging Georgia’s ballot access laws, which required that to appear on the ballot, a third party or independent candidate needed within a six month period to collect signatures equal to 5 percent of the number of registered voters in the previous election for that office (e.g. 5 percent of statewide voters for a gubernatorial candidate, 5 percent of district-wide voters for the U.S. House, etc.).
The rules were challenged by Linda Jenness, the gubernatorial candidate from the Socialist Workers Party, as well as two SWP congressional candidates and two registered Georgia voters interested in having greater diversity on the ballot.
They rested their case on the Fourteenth Amendment, noting that the winner of a major party’s primary received an automatic place on the ballot. (In 1970, a candidate attempting to petition onto the gubernatorial ballot needed approximately 88,000 signatures; the Republican nominee that year, Harold Suit, won his primary with fewer than 63,000 votes.) They also cited an unfair curtailment of their First Amendment rights. (Television stations in Georgia did not grant equal time candidates who failed to petition onto the ballot or qualify as write-in candidates.)
The state justified the 5 percent threshold on several grounds, including its interest in keeping “frivolous” candidates off the ballot so as to reserve it for those with substantial support and preventing overcrowding on the ballot (though the state could not explain to the Court why in 1943 the 5 percent figure was chosen). In oral arguments, the state also said it wanted to limit the number of candidates so as to “encourage stability and compromise.”
The Court ruled in favor of Georgia, upholding the constitutionality of its ballot access laws. Writing for the majority, Justice Potter Stewart referred to several major differences between the Ohio rules it invalidated in Williams v. Rhodes and those of Georgia.
Perhaps most significantly, the Court sanctioned the 5 percent threshold even though it was not, despite appearances, one-third less stringent than Ohio’s 15 percent threshold. Ohio used a percentage of votes cast metric rather than a percentage of registered voters metric. At the time, given voter turnout rates, Georgia’s 5 percent of registered voters requirement was roughly equivalent to 10 percent of votes cast (or two-thirds the severity of Ohio’s requirement).
And while indeed more lenient in this respect than Ohio’s rules, Georgia’s were in some ways more prohibitive. Georgia required parties to receive 20 percent of the vote to remain ballot-qualified, while Ohio mandated 10 percent. And in Ohio, a party could file a single petition to have its candidates qualify for the ballot, while in Georgia, a party had to submit 14 separate petitions to run a full slate of candidates.
In light of this comparison, one legal scholar argued that the Court should have reached the same decision in Jenness that it did in Williams. “If the Georgia scheme did not, like its Ohio counterpart, ‘freeze the political status quo,’” he wrote, using the words of Justice Potter, “surely it solidified the status quo, that is, Democrat and Republican supremacy, sufficiently to merit the same result.”
Nevertheless, the 5 percent figure was upheld, and it remains, as we’ll discuss below, the current ceiling on petition and vote test requirements for access to the general election ballot.
Anderson v. Celebrezze (1983)
Fifteen years after Williams, the Court once again was faced with a challenge to Ohio’s ballot access laws. In this case, the challenge was brought by John Anderson, who ran an independent candidacy for president beginning in April 1980. However, his petition (submitted in May 1980) was two months late, as Ohio’s deadline was set for March 20.
Anderson argued that the early deadline violated the Fourteenth Amendment (because his petition was due before the major parties’ primaries and was thus unfair and discriminatory) and violated the First Amendment (because it denied him the ability, as a candidate, to canvass the state and share his ideas with voters who may have been interested).
The state justified the early deadline on the grounds that voters needed the many months between the deadline and the November election to learn about independent candidates. It also expressed an interest in maintaining “stability” through limiting the number of viable candidates.
The Court ruled that the early deadline was unconstitutional. It scoffed at the notion that voters needed more than seven months to learn about an independent candidate, and it denied that one state could play a stabilizing role in a national, presidential election.
Yet the decision was unique in that the justices employed a “balancing” standard. In other words, rather than using the rigorous strict scrutiny test as it did in Williams (which requires the state to demonstrate a compelling interest to justify the restriction of fundamental constitutional rights), the instead “weighed” the interests of the state against the rights restrictions – a more subjective standard of review that, as we’ll see in the next case, is less protective of rights than strict scrutiny.
Munro v. Socialist Workers Party (1986)
In 1986, the Court accepted a challenge to a Washington state ballot access provision. This provision required third party candidates to receive at least one percent of the vote in the state’s blanket primary in order to appear on the general election ballot.
The case was brought by the Socialist Workers Party’s nominee for U.S. Senate, Dean Peoples, as well as the SWP and two registered voters. Peoples claimed that the provision, adopted in 1977, violated the First and Fourteenth Amendments, since the added 1 percent requirement pertained to a limited body of participants: primary voters. The provision had demonstrably reduced political competition, since, afterwards, only one minor party candidate had advanced to the general election up to the date of the trial.
Washington argued that it had a legitimate interest in keeping “frivolous” candidates and parties off the ballot, not only to prevent overcrowding and voter confusion, but also to save costs. (The state created and distributed a pamphlet to each residence educating voters about the general election and its candidates.)
The Court sided with the state, agreeing that it was justified in ensuring that general election candidates have a “significant modicum of voter support.” The Court also held that the differences between a primary vote requirement and a nominating petition requirement “are not of constitutional dimension.”
Significantly, the majority opinion claimed that, as in the Jenness case (and other rulings not covered here), the state had no obligation to demonstrate that the restriction was needed to address its stated concerns regarding the integrity of the general election ballot. “A State is not required to prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidates,” the majority wrote, “as a predicate to imposing reasonable ballot access restrictions.”
In the dissent (written by Justice Thurgood Marshall and joined by Justice William Brennan), the minority disputed the state’s claims and the majority’s decision not to interrogate them. Between 1907 and 1977, they observed, there had never been more than six minor party candidates on the general election ballot. Moreover, overcrowding only became a major concern after the 1977 reform – during a special election in 1983 when Peoples appeared on a primary ballot with 18 Democrats and 14 Republicans.
“Rather than alleviating the harm the statute purports to prevent, the law simply shifts any possible harm to the primary election,” they wrote. “Where the State’s solution exacerbates the very problem it claims to solve, the State’s means cannot be even rationally related to its asserted ends.”
The majority’s decision not to apply the strict scrutiny test was likely pivotal. Strict scrutiny allows the Court to invalidate laws that impinge on fundamental rights if the government can achieve its legitimate interests through less exacting means. Indeed, this standard of review caused the Court in two separate cases from the 1970s to invalidate filing fees for candidates in Texas and California. The Court claimed that filing fees were too heavy-handed a way of discouraging frivolous candidates, since such fees penalized indigent candidates and were ineffective at discouraging wealthy candidates.
Marshall and Brennan stated in their dissent that the same standard of review was called for in this case. They called the decision “overbroad,” since it sought to keep frivolous candidates off the ballot “only by excluding virtually all minor-party candidates from general elections for statewide office.” Contrasting the demonstrated ability of minor party candidates to compete for governor in Georgia in spite of the 5 percent requirement (prior to Jenness) with the evident obstacles faced by minor party candidates in Washington, they called the provision empirically excessive and thus unconstitutional.
Timmons v. Twin Cities Area New Party (1997)
In 1996, the Court heard arguments in a case over the constitutionality of Minnesota’s ban on fusion voting, in which one party (typically a minor party) nominates a candidate from another party (often a major party) so that the major party candidate’s name appears alongside the name of the minor party.
The New Party claimed that the ban violated its First and Fourteenth Amendment rights to freedom of association, since the law burdened its right to “communicate its choice of nominees on the ballot on terms equal to those offered other parties, and the right of the party’s supporters and other voters to receive that information.”
The state argued that it had legitimate interests in maintaing a stable political system, in avoid partisan infighting and splintering, and in avoiding voter confusion. It also sought to prevent minor parties from “bootstrapping” their way to major party status by depending on votes cast for the major party candidate on its own party line.
The majority ruled in favor of the state, claiming that “Minnesota’s fusion ban does not severely burden the New Party’s associational rights.” Declining therefore to impose a strict scrutiny test, the majority determined that the state’s interests were “sufficiently weighty to justify the limitation.”
The dissenting opinion (written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg and David Souter) questioned whether the ban actually achieved its stated interests and whether its asserted concerns about confusion and instability were actual or “hypothetical” and “theoretical.” The dissenters also noted that there were more precise, less oppressive ways for the state to achieve its various interests than through a ban on fusion voting.
In the third part of their dissent, Stevens and Ginsburg observed (without celebrating it outright) that fusion voting provides “a means by which voters with viewpoints not adequately represented by the platforms of the two major parties can indicate to a particular candidate that – in addition to his support for the major party views – he should be responsive to the views of the minor party whose support for him was demonstrated where political parties demonstrate support – on the ballot.”
The majority opinion in the Timmons case (authored by Chief Justice William Rehnquist) contained a remarkable and unprecedented statement about how states can interpret “political stability” and seek to promote this interest.
“The States’ interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two party system and that temper the destabilizing effects of party splintering and excessive factionalism,” Rehnquist wrote. “The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two party system. And while an interest in securing the perceived benefits of a stable two party system will not justify unreasonably exclusionary restrictions, States need not remove all of the many hurdles third parties face in the American political arena today [citations omitted].”
This statement is as profound in its retrospection as it is in its prescience: it not only summarized the various restrictions imposed by states that preceded this case, but it also foretold the adoption of restrictions that followed it. After Timmons, for instance, several of the 10 remaining states that permitted fusion voting decided to ban it. And since 1997, states have persisted in passing laws that strengthen the two-party system in innumerable ways.
Given the Court’s inconsistent application of strict scrutiny in ballot access cases, states reliably point to government-friendly precedents such as Munro and Timmons to justify restrictions of fundamental rights in the name of keeping “frivolous” candidates off the ballot – even without having to demonstrate that overcrowding or confusion occurs without such restrictions. These precedents grant states considerable leeway to determine what kinds of measures to impose, as they can enact “overbroad” and oppressive restrictions even if their interests could be achieved through less exacting means.
Of course, there are encouraging and significant precedents for pluralism as well. The decision in Anderson, for instance (invalidating Ohio’s April petition deadline), has prompted courts to strike down deadlines as late as June. Likewise, the Court has invalidated provisions requiring petitioners to gather signatures across jurisdictions of varying population (e.g. county distribution requirements), which has made petitioning easier in most states. Furthermore, the decision in Williams has meant that states cannot enact measures that purposefully or evidently thwart third party and independent candidacies, and the decision in Jenness has put a de jure (though not de facto) ceiling of 5 percent on signature requirements and – through the equivalence stated in Munro – vote tests.
Nevertheless, the application of strict scrutiny in ballot access cases could go a long way in empowering the rights of minor parties and independent candidates. If states cannot rely on theoretical concerns about overcrowding and confusion to keep such candidates off the ballot, and if they are forced to enact the least restrictive means ballot to advance their interests, there is a real possibility that restrictions that currently limit voter choice could be struck down.
Such a ‘turn’ in the standard of review could help usher in a new era of competitive elections, where alternative candidates are once again able to appear on general election ballots and thus have a platform to introduce their ideas to an electorate that is increasingly demanding to hear voices in our political discourse and options in our general elections.