Category Archives: ballot access

“The Battle for the Ballot in New Jersey”

Gene Mazo has posted this draft at SSRN (Seton Hall Law Review). Here is the abstract:

A scholarly literature has recently emerged to study, document, and measure the effects of New Jersey’s unique ballot bracketing system, colloquially known as the “county line,” which New Jersey’s party insiders and political machines have long used to determine the outcomes of the state’s primary elections. To date, this literature has examined how the “county line” works and what its empirical effects are, but it has thus far not adequately explained exactly why the “county line” system violates the U.S. Constitution. This Article fills this gap. Part I explores how New Jersey election law works to create the “county line” before surveying the different ways in which scholars have recently attempted to measure the “county line’s” empirical effects. Part II then proceeds to examine why the “county line” turns out to be so radically and vehemently repugnant to the Constitution. The Article looks at the recent litigation brought to challenge the “county line”—in the three cases of Conforti v. HanlonMazo v. Durkin, and Kim v. Hanlon—and uses it to explore the rights-based balancing theories under which New Jersey’s “county line” ballot bracketing system violates the First and Fourteenth Amendments of the Constitution, as well as the structural non-balancing theories under which the “county line” violates the “by the People” provisions (found in Article I, Section 2 and the Seventeenth Amendment), the Qualifications Clauses, and the Elections Clause of the Constitution.



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“Ohio GOP pushes new rules that voting rights groups say will make it harder to get issues on the ballot”

Cleveland.com:

The next time someone asks you to sign a petition, they might be wearing a government-issued badge.

Republicans say voters deserve to know when someone is being paid to gather signatures, and that a badge will make the process more transparent.

“They might see the badge and think, ‘Hey, wait a minute— is there more behind a petition than meets the eye?’” said Republican state Sen. Andrew Brenner of Delaware.

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“The county line is officially gone with a new primary ballot design for New Jersey, but advocates may sue again”

Philadelphia Inquirer:

New Jersey has a new primary ballot design now that Gov. Phil Murphy has signed it into law — though it remains to be seen whether it the measure will be challenged in court.

With the governor’s quiet approval last week, the new rules of the ballot shepherd the state into a new era of primary elections.

The main purpose of the ballot overhaul is to organize candidates by the office they’re seeking, getting rid of the longstanding county line design. The county line grouped together party-endorsed candidates and put outsiders not supported by their county political establishment at a disadvantage by listing them on less prominent positions on the ballot.

The death of the county line ballot is a victory for candidates who want to run for office without the prized endorsement of their county party committee, and it can motivate more candidates to throw their hat in the ring to compete for support from voters, not party bosses. This year, 10 candidates are running for governor.

But progressive advocates say the new design still has issues reminiscent of the old design, in part because it still groups together certain candidates in a way that could favor the establishment.The new law provides design guidelines for clerks to create primary ballots for their counties, but the plan for the ballot is currently just words on a page. The new ballots will be created in time for the June 10 primary.

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Antebellum fusion

Justin again.  I had the “pleasure” of teaching Timmons v. Twin Cities Area New Party again yesterday.  Timmons was a federal constitutional challenge to “anti-fusion” laws: laws preventing two parties on the ballot from nominating the same candidate (and thereby preventing voters from demonstrating their preference for a candidate on one of two or more party lines).

And I was reminded, again, of two things:

  • The remarkable sloppiness of the Court’s drive-by originalism as a rationale for allowing states to entrench a duopoly.  Whatever your view of the political science, it’s pretty clear that the Court gets Federalist No. 10 (and its warning against faction) exactly 180-degrees backward.
  • The remarkably monochromatic nature of the public’s understanding of electoral options based on deep unfamiliarity not just with other countries’ systems, but our own history.  Fusion ballots are just one example of this, of course.  But even students who think they know a lot about Earl Warren as Chief Justice have no idea that he got both the Republican and Democratic nominations for Governor, or even that that’s a conceptual option.

In the latter vein, there’s a really interesting new paper out by Corey Brooks and Beau Tremitiere in the St. John’s Law Review reviewing how northern antislavery parties used fusion in the 1840s and 1850s to grow what would become the Republican Party.  I’m looking forward to digging in.

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New Article: “A Path to Multiparty Democracy”

Nate Ela (Temple Beasley School of Law) has posted a new article in relation to the state constitutional challenges to anti-fusion laws that are currently underway. Building on the work of Jessica Bulman-Pozen and Miriam Seifter, Ela argues that many state constitutions distinctly favor popular sovereignty and small-d democracy in ways that counsel for applying strict scrutiny, rather than the interest-balancing approach used in the federal courts when assessing the constitutionality of bans on fusion candidacies. Ela also seeks to remind state courts that they are not constrained by the federalism concerns that drive the U.S. Supreme Court’s reluctance to strike down state election laws.

Ela’s is a very timely intervention not only because the Appellate Division of the Superior Court of NJ will hear oral arguments in the first of these challenges on December 10, but also because, as our two-party system has become polarized and vulnerable to authoritarianism, it is critical to consider structural reforms with the capacity to address the dissatisfaction that drives many voters, including those that reject both parties. Arizona and Nevada, for example, have roughly as many independents as registered Democrats and Republicans. Fusion offers an eminently feasible reform for bringing such voters into the democratic fold in a productive way. Let’s hope that state court judges recognize that they do not need to follow Timmons v. Twin Cities Area New Party (1997), which has been almost uniformly criticized by legal academics and which completely misunderstood the burdens fusion places on parties as organizations and associations.

From the abstract:

“By barring candidates from accepting the nomination of more than one party, anti-fusion laws violate a range of state constitutional provisions: the grounding of government in popular sovereignty; the right to vote; the right to free, equal, and open elections; the right to assemble, consult for the common good, and instruct elected representatives; and the freedom of political association. Rather than adopting the deferential approach of Timmons, state courts should rigorously and realistically review the true burdens of anti-fusion laws, and the actual, partisan interests they serve.”

Part II of the Article is particularly interesting. Among other things, Ela argues that the correct baseline for assessing the burdens of anti-fusion laws is the system that existed before fusion was banned–a system in which minor parties could name their standard bearers, present themselves to voters on that basis, and use their vote share to demonstrate support and exert influence over policymaking. The question, he argues, should be: How have anti-fusion laws undermined third parties in such efforts?

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“Losing GOP candidate for NC Supreme Court challenges 60,000 ballots as recount starts”

News&Observer: Jefferson Griffin, the Republican candidate for North Carolina Supreme Court, requests a recount where he trails by 625 votes while also filing “a series of election protests on Tuesday challenging the validity of over 60,000 ballots cast across the state.”

His complaints, some of which have already been rejected by courts include:

  • “[C]ounties improperly counted ballots from voters who voted early but died before Election Day.”
  • Votes should be rejected from those “serving a felony sentence as of Election Day.”
  • Votes should be rejected from individuals who failed to attach “a driver’s license number or Social Security number” to their voter registrations, even though state law does not require this.
  • Votes from “military and overseas voters who have never resided in North Carolina” should be rejected despite laws that appear to permit this in certain circumstances.
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Richie: “Weaponizing Minor Parties: 2024 Edition”

The following is a guest post from Rob Richie:


Weaponizing Minor Parties: 2024 Edition

By Rob Richie

The presidential election will come down to which candidate wins in the seven swing states – the same closest states from 2020 that again have drawn an overwhelming share of presidential campaign spending and time. Yet every swing state ballot has more than two presidential candidates. Libertarian Chase Oliver is making Republicans nervous due to being on the ballot in all seven states, while anti-abortion activist Randall Terry is on three swing state ballots. Running from the political left, the Green Party’s Jill Stein is on six ballots (all but Nevada), and Cornel West on three. Robert Kennedy Jr. remains on two swing state ballots despite his campaign’s efforts to withdraw his name.

It’s a near certainty that the “tipping point” presidential state will be won without a majority of the vote – just as in six of the last nine presidential elections – and there will be a “Ralph Nader narrative” of a minor party splitting the vote and changing the outcome. Learning from Nader’s impact in 2000, major party donors and operatives have shamelessly sought to benefit from “spoilers” enabled by our dominant plurality, singe-choice voting method. FairVote this year has documented these tactics, while Forbes Magazine provided a valuable overview of a string of major party interventions to boost or block minor presidential candidates based on partisan calculation. I wrote about weaponization of voter choice in a similar guest blog in 2020, but this election has seen new levels of seeking to game our plurality voting rules. 

As a reminder of just how bad it can get, consider a key Florida state senate race in 2020 that helped Republicans reach a supermajority needed to dominate state government. As part of a tactic used in several races. GOP operatives recruited a “ghost candidate” with the same name as the Democratic incumbent to run as an independent. He won more than 6,000 votes in a race won by the Republican by 34 votes. The fact that a key architect of the scheme, former state senator Frank Artiles, was convicted of felonies for his role didn’t change the fact that Republicans got what they wanted.

This year the Democrats have regularly sought to combat and exploit our elections’ spoiler loophole, starting with the Democratic National Committee investing in a full-time office run by Lis Smith focused on minor parties. Democrats helped push No Labels and Robert F. Kennedy Jr. out of the race, then threw a range of legal and administrative obstacles to efforts by Jill Stein and Cornel West to get on ballots and created anti-Stein ads.

Democrats also strategically boosted conservative candidates. Democrats sought to block all minor parties from the Georgia ballot except the Libertarian nominee and Georgian Chase Oliver, while Civic Truth Action, a Super PAC with ties to the Democratic election firm Elias Law Group, recently paid for at least $1.5 million in swing state ads backing Oliver as “ a “true conservative” who will “abolish income taxes” and “dismantle the nanny state.” The New York Times reported on major Democratic spending on behalf of Operation Rescue activist Randall Terry.

Democrats have been active down the ballot as well Consider these headlines

The Examiner story adds a particularly troubling twist. Alaska has ranked choice voting, a system designed to defang this weaponization of voter choice by giving minor candidate backers the right to indicate backup choices that will count if that candidate is eliminated by finishing last and no candidate wins a majority. Yet the Democratic-linked ad not only lifts up U.S. House candidate John Howe as the “real conservative,” but also urges voters to rank only him – essentially the equivalent of ads telling voters that this year Election Day is on Wednesday.

If not as overtly active up and down the ballot this cycle, Republicans are far from blameless. Donald Trump has called Cornel West “one of my favorite candidates” and said of the Green’s Jill Stein: “I like her very much. You know why? She takes 100% from them. He takes 100%.” The GOP has done a range of major spending and litigation to boost both Stein and West, as reported in detail by the Associated Press, the Washington Post, and Wall Street Journal. Republicans also successfully blocked the Constitution Party from the presidential ballot in the quintessential swing state of Pennsylvania.

The courts may not be immune from calculations about “spoiling” as well. After withdrawing from the race and endorsing Trump, Robert F. Kennedy Jr. went from a candidate that the Democrats feared to one who might more clearly hurt Trump. Facing similar fact patterns of administrative burdens that would be created by seeking to remove Kennedy from the ballot, the Democratic-controlled state supreme courts in Michigan and Wisconsin ruled that he should stay on the presidential ballot, while conservatives on the North Carolina supreme court ruled he should come off. 

So what can we do about all gaming voter choice? We don’t see anything comparable to it in countries with similar plurality voting systems like Canada and the United Kingdom, so public shaming certainly is warranted. Yet operatives arguably are just playing with the rules our leaders have the power to change. In our era of calcified partisanship and high-stakes elections, there are only so many ways to get an edge – inspiring more voters to go to the polls, changing voters’ minds, or persuading backers of the other party to stay home. In the hunt for new ways to tip close races, I expect steering votes to or away from minor parties to be an escalating tactic in our politics – and one that only deepens voter cynicism.

But we do have the power to change it. Today, voters in Alaska and Maine will vote for president and Congress with ranked choice voting (RCV) and turn the power on whether to “spoil” entirely in the hands of voters. Four more states and the District of Columbia may adopt RCV. Looking forward, we have a choice: resigning ourselves to ongoing escalation of weaponization of voter choice or ending the practice through RCV’s expanded use.

Rob Richie is co-founder and senior advisor of FairVote.

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“Supreme Court rejects RFK Jr. plea to be removed from ballot in two swing states”

NBC News:

The Supreme Court on Tuesday rejected a long-shot bid by Robert F. Kennedy Jr., who ended his independent presidential campaign, seeking his removal from the ballot in the key swing states of Wisconsin and Michigan.

Kennedy has endorsed Trump and is seeking to have his name dropped from the ballots in states where it could be a boost to his new ally.

The court did not explain its reasoning. Justice Neil Gorsuch said he would have granted Kennedy’s application in the Michigan case.

On Gorsuch’s dissent in the Michigan case:

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En Banc Sixth Circuit Rejects Attempt to Reconsider Ruling Rejecting RFK Jr.’s Attempt to Get Off Michigan Ballot

You can read a set of opinions here. From Judge Clay’s concurrence:

Plaintiff’s complaint also suffers from flaws on the merits. Plaintiff’s theory of injury, for example, argues that that “once the ballots are printed” with his name on them, he will inevitably suffer an “injury to reputation,” and his supporters will “be left confused and angry for casting an invalid vote” for him. Appellant’s Br., ECF No. 6, 34. But Plaintiff has not shown that removing his name would prevent a loss of face; in fact, Plaintiff requested in another case that New York courts keep him on the ballot. See Team Kennedy v. Berger, No. 24A285, 2024 WL 4312515 (U.S. Sept. 27, 2024). Plaintiff has never explained or reconciled these conflicting and contradictory positions. Additionally, removing Plaintiff from the ballot at this late stage would have important consequences for the Natural Law Party. The Chair of the Natural Law Party has explained that removing Plaintiff from the ballot would leave the party in a “bad position,” as it could impact the party’s ability to put candidates forward in the future. See R. 8- 5, Page ID #13. Plaintiff seems completely oblivious to the fact, and selfishly unconcerned, that his actions in seeking to remove his name from the ballot at this late stage is likely to injure the fortunes of the Natural Law Party—which made him its presidential nominee and devoted the party’s political capital and resources to promoting Plaintiff’s political ambitions.

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