Category Archives: ballot access

“A Mysteriously Financed Group That Could Upend a Biden-Trump Rematch”

Julie Bykowicz for WSJ:

The 13-year-old nonprofit group, which has a $70 million budget, has qualified for the ballot in Arizona, Alaska, Colorado, Oregon and Utah and is pursuing access elsewhere. Arizona Democrats are suing to kick No Labels off the ballot, and the group says it expects more lawsuits in other states where it wins access. 

The ballot drive in Maine has collided with a Democratic secretary of state who accused the group of leading voters to think they were merely signing a petition when they were actually signing up to join its party.  

The liberal group MoveOn recently sent letters to secretaries of state asking them to investigate whether No Labels is doing the same in their states. No Labels says it isn’t misleading anyone. …

Questions about the motives of No Labels are compounded by the secrecy surrounding its finances. 

The group’s leaders say naming their donors would subject them to scrutiny and intimidation. Past known donors include executives in the finance and energy industries whose campaign contributions largely lean Republican.

Crow, the Republican developer, has spoken at No Labels events and made contributions.

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Josh Douglas Blog Post: “Justice Stevens’s Papers and Burdick v. Takushi”

The following is a guest post from Josh Douglas:

Like Rick, when I was in DC last week I visited the Library of Congress to review the newly-released papers of Justice John Paul Stevens. (Shout-out to the great staff in the Manuscript Division of the Library of Congress for being so helpful!) Because the case will be featured in my new book due out in 2024 (tentatively titled The Voters vs. The Court), I was most interested in reviewing the files from Burdick v. Takushi, a 1992 case that makes up the second half of the influential “Anderson-Burdick” balancing test that the Supreme Court uses for “non-severe” infringements on the right to vote. (I had already looked at the case files from Anderson last summer; the newly released papers covers cases from 1984 to 2004.)

Burdick was about Hawaii’s ban on write-in voting. The Court upheld the Hawaii rule on a 6–3 vote. Justice Stevens joined Justice Kennedy’s dissent in the case. That fact by itself is interesting because Justice Stevens wrote the Anderson v. Celebrezze majority opinion in 1983. As the dissent explained in Burdick, “a State that bans write-in voting in some or all elections must justify the burden on individual voters by putting forth the precise interests that are served by the ban. A write-in prohibition should not be presumed valid in the absence of any proffered justification by the State. The standard the Court derives from Anderson v. Celebrezze means at least this.”

The most interesting tidbit I found in Justice Stevens’s files on the Burdick case was the inclusion of an odd paragraph in a draft of Justice Kennedy’s dissent. Here is the text of the paragraph in question:

We are required then to apply a weighing test. A weighing test, whatever its other deficiencies, can be adopted when there are too few precedents to devise a standard of more general and certain application. That appears to be the circumstance here, for both before and since our decision in Anderson v. Celebrezze, there are few decisions in this Court which explain either the origin or the extent of the right to vote. Given the condition of the case law, we are obligated to apply the test given in our precedents, the test the majority sets forth, with scrupulous regard to the precise facts before us, including all of the features of the particular election system under review. If we do so here, I submit the conclusion must be that the write-in ban deprives some voters of any substantial voice in selecting candidates for the entire range of offices at issue in a particular election.

As Justice Stevens’s law clerk pointed out in a memo to Justice Stevens, this paragraph questions both the origins and the strength of the constitutional protection for the right to vote. As the clerk wrote, the paragraph implies that “(1) the Court applies a balancing test when it doesn’t know what else to do and (2) we aren’t sure where the ‘right to vote’ came from, but it’s in our precedent, so we must do our best to enforce it.”

Justice Stevens then wrote to Justice Kennedy to ask him to remove the paragraph, and Justice Kennedy responded that his own law clerks, too, had questioned that paragraph. “Out it goes,” Justice Kennedy agreed.

The final dissent recites the Anderson balancing test and then includes only the last sentence of the paragraph in question: “I submit the conclusion must be that the write-in ban deprives some voters of any substantial voice in selecting candidates for the entire range of offices at issue in a particular election.”

This draft paragraph—especially given that it was in a dissent—is not particularly significant, but it does suggest that Justice Kennedy was perhaps unsure of how to describe the Constitution’s protection for the right to vote. Using the Equal Protection Clause and the AndersonBurdick balancing test has always been an inartful fit for what should be the most important, foundational right under the U.S. Constitution. As my book will explain, the Court has underprotected the right to vote and has deferred too much to state politicians in election rules—not just recently but during the past five decades. The sentiment in Justice Kennedy’s draft dissent in Burdick epitomizes this view.

Burdick is an interesting case for many reasons. I interviewed Alan Burdick and will include several anecdotes from our conversation in the book. This aspect from Justice Stevens’s papers is not going to make it into the book—it’s a little bit too much inside baseball, I think—but hopefully ELB readers found it as interesting as I did.

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Muller on Ballot Access

Derek T. Muller, Ballot Access (forthcoming, Oxford Handbook of American Election Law):

Voters use ballots to choose their preferred candidates or to express support or opposition to ballot initiatives and referenda. There are many and diverse rules for how these people or items appear on the ballot in the first place—who can obtain “ballot access.” Once states began printing ballots in the late nineteenth century, they began to develop standards for which candidates, political parties, or ballot measures could appear on the ballot. States may require prospective candidates to circulate petitions and secure a number of signatures from voters to demonstrate support before their names could appear on the ballot. States set deadlines for candidates to circulate those petitions or to file for candidacy. Or states may limit the candidates who may appear on the general election ballot to those who meet a threshold level of votes in an earlier round of voting.

In the middle of the twentieth century, the United States Supreme Court became increasing interested in establishing rules for federal courts to evaluate states’ ballot access rules. On the one hand, the state has an interest in preventing an overcrowded ballot and ensuring that only serious candidates appear on it. On the other hand, the state’s rules may be unduly restrictive, which may reduce voters’ choices or entrench one or both major political parties in office. The Court has developed a balancing test to determine whether the rules are too onerous or whether the state has adequately justified its interest. These fact-intensive balancing tests have left federal courts with the task of figuring out these context-specific questions.

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Elected officials aren’t always the biggest fans of ballot measures

Some recent actions of legislatures and other elected officials stepping into the thick of how ballot measures are proposed and adopted….

In the Wall Street Journal, “State Lawmakers Take Aim at Voter-Led Ballot Measures,” which begins, “Lawmakers in Republican-led states are backing measures to make it harder for voters to amend state constitutions, as partisan fights play out over abortion access and other issues.” (Earlier this week, I highlighted the disputes in Ohio here and here.)

From the Detroit News a few weeks ago, “Gov. Whitmer signs bills to repeal right to work, restore prevailing wage,” which includes the tidbit, “Whitmer signed the bills on Friday even though they included appropriations that will protect them from facing referendum votes. Under the Michigan Constitution, bills with spending in them cannot be subjected to referenda.”

Daniel Borenstein in the Mercury News argues, “Californians will face longer ballots next year as state lawmakers keep undermining democratic principles by putting their thumbs on the election scale. The ballot explanations for costly state and local measures, which should be informative but neutral, continue to be turned into opportunities for political propaganda.”

And from CBS Miami, “Florida marijuana proposal goes to state’s Supreme Court,” which opens, “Attorney General Ashley Moody has formally submitted a proposed recreational-marijuana ballot initiative to the Florida Supreme Court and signaled she will argue that the proposal doesn’t meet legal requirements to go before voters in 2024.”

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No Labels Sent Caution by Maine Secretary of State

Press Herald reports that the national organization of No Labels has been sent a cease and desist letter from the Secretary of State of Maine for misleading voters in their efforts to gain ballot access.

“’Over the past few months, municipal clerks have received reports from numerous Maine voters who did not realize that they had been enrolled in the No Labels Party,’ Bellows wrote. ‘These voters have provided similar accounts of how they came to be enrolled in the party: that they were approached by No Labels Party organizers in public places and asked to sign a “petition” to support the new party. These voters have further stated that No Labels organizers did not disclose – and the voters did not understand – that No Labels was asking them to change their party enrollment.'”

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Constitutionality of N.Y’s Restrictions on Write-Ins Upheld

A 2021 amendment to N.Y.’s Election Law restricts the permissible universe of write-in candidates in a party primary to members of the party. Essentially applying Anderson-Burdick, the state appellate court upheld the constitutionality of the amendment.

“Political parties have protected associational rights, which include the right to identify their own members and to select candidates who best represent their ideals and preferences and the ‘right to exclude non-members from their candidate nomination process.’ We conclude that the restrictions imposed by the statute were intended to protect those rights, and that petitioners have no associational right to involve non-members in the nomination process of their parties.”

The case is In re Kowal v. Mohr, 419 CAE 23-00703.

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“A Critical and Historical Analysis of Ohio’s Post-Millennium Regression to Major-Party Monopoly”

New in the Hastings Constitutional Law Quarterly, from Capital’s Mark Brown: a review of recent ballot access battles in Ohio.  I suspect there’s even more to add to the “major-party monopoly” argument if you add the legislature’s all-out gerrymandering war with the state Supreme Court, and the attempt to raise the threshold for citizen amendments.

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Paul Clement leads cert petition in Mazo v. New Jersey Secretary of State on ballot speech issue

Late last year here at ELB, I highlighted the Third Circuit’s decision in Mazo v. New Jersey Secretary of State. (Disclosure: I filed an amicus brief in that case.) Check out that post for more on the background.

Paul Clement is leading the legal team that has just filed a petition for writ of certiorari to the United States Supreme Court. The docket for the case is here. Here’s how the question presented is framed:

The decision below allows New Jersey to regulate core political speech at the election’s critical moment, and to do so on the basis of content and viewpoint while insulating entrenched political machines from serious primary challenges. New Jersey allows candidates in primary elections to engage in political speech on the ballot via six-word slogans next to their names. New Jersey was not obligated to allow candidates to communicate directly with voters at the very moment they cast their ballots. But having done so for the express purpose of allowing candidates to distinguish themselves from their primary opponents, the state could not dictate content or skew the debate. Undeterred, the state prohibits candidates from referencing the name of any individual anywhere in the world (e.g., “Never Trump” or “Evict Putin From Ukraine”) or any New Jersey corporation (e.g., “Higher Taxes for Merck & JnJ”) absent written consent. Entrenched political machines have long exploited this law by using political associations incorporated in New Jersey to signal which candidates enjoy machine support in the primary. Tellingly, New Jersey drops the consent requirement altogether on the general election ballot. The Third Circuit upheld this glaring free-speech violation only by bypassing traditional First Amendment scrutiny in favor of the amorphous Anderson-Burdick balancing test.

The question presented is:

Whether a state that permits political candidates to engage in core political speech on the ballot may restrict that speech on the basis of content and viewpoint without satisfying strict scrutiny.

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Ballot access in Montana

A top-two primary, but only for U.S. Senate, and only for 2024.  That’s in one bill that Montana legislators advanced on Monday.

A second Montana bill advancing Monday would raise thresholds for parties to qualify for the ballot, and raise signature requirements for parties not yet qualified.

In 2018, the Libertarian candidate drew 3% of the vote for U.S. Senate in a 50-47 contest.  But I’m sure that’s coincidence.

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