Category Archives: ballot access

Section 3 of the Fourteenth Amendment and January 6, 2025: the need for legislation now

All the current talk of Donald Trump running again in 2024 assumes that he’s eligible to serve as president if reelected.  He’s not, or at least there’s a strong argument that he isn’t.

In fairness to America’s voters, this argument ought to be resolved conclusively in court long before voters cast their ballots in 2024—and not on January 6, 2025, when Congress next meets to count electoral votes. 

Section 3 of the Fourteenth Amendment explicitly bars from the presidency, as well as any other “office, civil or military, under the United States” anyone who “having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection … against the same.”  Given all that we now know about Trump’s role in fomenting the insurrection at the Capitol this past January 6, including the extent to which he was pushing Vice President Pence to act upon the Eastman memo—and urging the crowd on January 6 to pressure Pence to repudiate the constitutionally proper electoral votes cast for Joe Biden—there’s already a powerful case to be made that Trump “engaged in insurrection” within the meaning of this constitutional clause, thereby making Trump ineligible to be inaugurated again as president on January 20, 2025.  This ineligibility argument may grow even stronger after the House select committee completes its ongoing investigation.

Continue reading Section 3 of the Fourteenth Amendment and January 6, 2025: the need for legislation now
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“Florida GOP official: Third-party candidates help Republicans win ‘many’ elections”

Washington Examiner:

Internal jostling for leadership of Florida’s Republican Party has shaken loose a revelation bolstering allegations the GOP regularly runs third-party candidates funded by “dark money” shadow groups to win elections.

In an email sent Tuesday to all Florida GOP committee members, former state representative and current Lee County Property Appraiser Matt Caldwell ripped the party’s leadership for failing to support incumbents and for placing elected state officials – including current chairperson Sen. Joe Gruters, R-Sarasota – in charge.

Caldwell, defeated by Democrat Nikki Fried in the 2018 state agriculture commissioner election by 6,753 votes, blamed his loss on the state party’s neglect.

“The most glaring difference in the loss for Ag. Commissioner was the lack of any 3rd party candidate” in his race against Fried as, he implied, the state party did for candidates in four other statewide races, including Gov. Ron DeSantis’ half-percent victory over Democrat Andrew Gillum.

In fact, he added, “Many of our victories can be attributed to 3rd Party candidates dividing the vote.”

While recruiting third-party or no party affiliation (NPA) candidates is not new and, under Florida’s campaign financing rules, not necessarily illegal, the Miami-Dade State Attorney Office is investigating at least one NPA candidate’s 2020 campaign and Democrats are demanding lawmakers reassess state campaign regulations.

The most notable example comes from Miami-Dade County’s Senate District 37 race, where NPA candidate Alex Rodriguez received 6,300 votes out of 215,000 ballots cast in an election won by 32 votes by Sen. Ileana Garcia, who unseated incumbent Democrat José Javier Rodríguez.

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Buffalo: “Board of Elections to mull appeal of rulings that put Byron Brown on the ballot”

Buffalo News

The Erie County Board of Elections will decide Tuesday whether to appeal one or both decisions handed down Friday that allow Mayor Byron W. Brown to appear on the ballot in November on an independent line.

Jeremy J. Zellner, the Democratic commissioner at the Board of Elections who is also the Erie County Democratic Committee chairman, says he thinks the county should appeal.

“I’m publicly in favor of appealing,” Zellner said Saturday.

Republican Elections Commissioner Ralph M. Mohr said Saturday that he hasn’t made up his mind about how to proceed.

“I’ll decide that at the meeting,” Mohr said. He also said he thinks the rulings that allow Brown to be on the ballot mean there is no deadline anymore and that means other people may petition to be on independent lines for the upcoming election.

Both commissioners must agree in order for the county to move forward, Zellner said. 

The decision will be made during a hearing scheduled for 2 p.m. Tuesday in the third-floor conference room at the board’s offices, 134 W. Eagle St.

The public will have a chance to weigh in. Participants and attendees of the public hearing will be required to wear masks inside the county facility.

Brown, who lost the Democratic primary to India B. Walton, missed a May filing deadline for the ballot line by nearly 14 weeks. On Aug. 27, the Erie County Board of Elections shot down Brown’s bid for his name to appear on an independent ballot line, ruling his submission was “untimely” because it was not filed by the deadline set earlier this year by the state Legislature.


See also High court ruling in 1980 presidential race figures in Buffalo mayoral election litigation.

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Qualifications for candidates running in California’s gubernatorial recall

To build off Ned‘s post, and setting aside the major laches problem to this lawsuit, Vik Amar and Evan Caminker at Justia have a pretty thorough defense of California’s process, a process that disqualifies a recalled governor from seeking office for the replacement term. I’ll highlight (or restate?) a couple of points I made very briefly on Twitter earlier.e

The California Constitution dictates, “The officer may not be a candidate.” Art. II, sec. 15(c). That is, upon a majority of voters recalling the officer, the officer is disqualified from seeking the remainder of the term. As a qualification for office (which Ned points out), we have many such rules. Term limits, age limits, resign-to-run laws, sore loser laws, and myriad other state qualifications rules. It can be a function of impeachment. And recall, in my judgment, seems similar.

Once a candidate is disqualified from seeking office, whether that happens on the same ballot or an earlier ballot, it’s not “one person, one vote.” The candidate is disqualified, whatever happens in some later event, no matter how many people might like that candidate (as one might well like a “sore loser” or an impeached candidate). Admittedly, it’s convenient to hold up the results of question 1 (the recall) against prospect of question 2 (the replacement). But the fact that it’s one election, in my judgment, tells us little about the qualifications question. (There’s some intriguing debate about the line between “ballot access” and “qualifications,” as state qualifications rules seem to receive more deference from the Court, as n.9 of Anderson v. Celebrezze (1983) indicates.)

The Supreme Court has also rejected analogizing “one person, one vote” to state qualifications or ballot access rules. Consider Bullock v. Carter (1972), a filing fees case: “. . . nor does [Texas] quantitatively dilute votes that have been cast [citations to Reynolds v. Sims & to Wesberry v. Sims]. Rather, the Texas system creates barriers to candidate access to the primary ballot . . . .”

But, my money is on a swift dismissal on laches, and the academic dialogue, I think, continues for the next recall….

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“Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office”

New draft from Elizabeth D. Katz on SSRN, forthcoming in the Yale Journal of Law & Feminism. Abstract:

On January 20, 2021, Kamala Harris was sworn in by Justice Sonia Sotomayor as the nation’s first woman Vice President. This occasion, with women of color holding two of the most crucial roles in our national government, would have been unthinkable for most of United States history. While the political efforts necessary to reach this moment have been studied in great depth, the legal challenges have been overlooked and even denied.

Relying on extensive historical research, this Article is the first to examine how women advocated for the legal right to hold public office in state-level litigation, constitutional amendments, legislative lobbying, and other venues for more than a century. From the 1840s through the 1940s, women in many states were excluded from holding even mundane public offices because of state constitutional language and judicial holdings. Opponents of women’s officeholding feared that permitting women to hold posts would deprive men of their rightful opportunities, radically alter gender norms, and fuel the flames of the women’s suffrage movement. The nation’s first women lawyers were particularly active in challenging these restrictions, with results varying by region and reflecting distinct legal, political, and social cultures. Women in the West obtained public offices relatively early, in part because they were the first to secure suffrage. Women in the Northeast and South faced the most difficult hurdles because conservative state judiciaries construed constitutional silences as implying women’s exclusion from office. The Midwest emerged as the contested middle ground; although women could not vote in Midwestern states for most of the studied period, many courts nevertheless held that they were entitled to hold both appointed and elected offices.

Recovering the history of women’s legal right to hold public office challenges three major conventional wisdoms. First, it undermines the commonplace claim in scholarship on women’s legal and political history that officeholding was not a meaningful part of women’s advocacy or experiences until after ratification of the Nineteenth Amendment in 1920. This account instead shows that proponents of women’s rights have long demanded women’s access to public posts, and women held positions more than a half century prior to the federal suffrage amendment. Second, this Article challenges prominent scholarship—mostly focused on interpreting the Reconstruction Amendments—that treats officeholding as an obvious or inevitable twin to suffrage. Foregrounding women’s history and state-level advocacy emphasizes the legal possibility and practical reality of severing these political rights. Third, and relatedly, the Article calls for more attention to state constitutional law and regional variation. The women’s officeholding story clearly demonstrates how focusing on one geographical area, providing a single national account, or limiting analysis to the federal level obscures essential developments in securing rights.

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“Libertarian vs. Liberation creates third-party conundrum on Virginia ballots”

Virginia Mercury:

Most Virginia voters go for candidates with a “D” or “R” next to their name, but who should have dibs on the “L?”

This year, election officials preparing November’s ballots were faced with the dilemma of how to differentiate the Libertarian Party from the Liberation Party, the newly formed initiative from gubernatorial candidate and social justice activist Princess Blanding.

“We didn’t want to list them both as ‘L.’ Because that’s a really bad idea,” Dave Nichols, elections services manager for the Virginia Department of Elections, said at a state Board of Elections meeting Tuesday.

A textbook example of dilemmas that arise over ballot speech.

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“Ex-Gov. Blagojevich files federal lawsuit challenging state law precluding him from running again”

Chicago Tribune:

The last time convicted ex-Gov. Rod Blagojevich appeared in federal court in Chicago, he watched sullenly via a video link from prison as a judge resentenced him to 14 years in prison for an array of corruption schemes.

Five years later, a far more upbeat Blagojevich returned in the flesh to the Dirksen U.S. Courthouse, ground zero for his historic political and personal downfall.

“I don’t like this place,” Blagojevich said after striding up to a battery of news microphones set up outside the building on South Dearborn Street. “I was hoping I would never have to set foot in this building again, but here I am.”

This time, the ex-governor, whose sentence was commuted by President Donald Trump in February 2020, wasn’t there to answer to allegations of brazenly selling a U.S. Senate seat or receive a tongue-lashing from a judge.

He was there filing a lawsuit of his own challenging the Illinois General Assembly’s disqualifying resolution that prohibited him from running for any state or local office in Illinois because of his 2009 impeachment.

Additional coverage at the Washington Post.

The pro se complaint in Blagojevich v. Illinois was filed in the North District of Illinois, and the complaint is available at CourtListener. It largely hinges on a Sixth Amendment right… which I do not think will go very far.

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Court concludes California candidate tax disclosure law applies only to gubernatorial primaries, not recalls

California recently enacted a law to compel presidential candidates and gubernatorial candidates to disclose their tax returns as a condition for appearing on the primary ballot. The presidential rule was targeted at Donald Trump; the gubernatorial rule added at the behest of Gavin Newsom, who was voluntarily disclosing tax returns anyway. While Jerry Brown had vetoed a similar bill, Newsom signed the bill. A federal district court and the California Supreme Court independently enjoined enforcement of the presidential primary component (which I discuss, among other things, in Weaponizing the Ballot, recently published in the Florida State University Law Review; enjoined, despite the serial assurances of its constitutionality mentioned in Newsom’s signing statement).

On the gubernatorial side, Division 8 of the Elections Code includes rules for the primary. Section 8902(a) provides, “Notwithstanding any other law, the name of a candidate for Governor shall not be printed on a direct primary election ballot, unless the candidate, at least 98 days before the direct primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years, in accordance with the procedure set forth in Section 8903.”

Newsom now faces a gubernatorial recall election. A number of candidates filed to challenge him.

One might think that this tax disclosure provision would not apply to a recall election. After all, the Code uses the word “primary,” not “recall.” Ballot access for a recall election is governed by an entirely separate part of the Elections Code, Division 11. Professor Jessica Levinson at Loyola Law School noted that it’s “going to be hard to overcome a plain language problem.”

One might think. But it didn’t dissuade California’s Secretary of State from summarizing that “gubernatorial candidates,” not primary candidates, are required to disclose tax returns. And she enforced the rule, dutifully disclosing the sordid details of dozens of candidates, which you’re welcome to peruse here, and excluding any candidate who failed to comply.

One prospective candidate, Larry Elder, failed to comply with the law, apparently inadvertently failing to redact some information from his tax returns. He sued, and a state court found he should appear on the ballot. As the court said, “I don’t find that Mr. Elder was required to file tax returns at all.” By its plain text, the statute applies to primaries, not recalls.

Whether other candidates were improperly excluded from the ballot for failure to file tax returns remains to be seen. Did it “scare off” any candidates? Time will tell if the California recall ballot gets much longer in the days ahead as the recall election rapidly approaches and ballots need to be printed.

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Tournament Elections with Round-Robin Primaries

I’ve posted a draft of this paper on SSRN. Here’s the abstract:

Round-robin voting uses ranked-choice ballots but calculates which candidates are most preferred by a majority of voters differently from instant-runoff voting. Like a round-robin sports competition, round-robin voting determines how each candidate fares against every other candidate one-on-one, tallying the number of wins and losses for each candidate in these one-on-one matchups. If necessary to break a tie in these win-loss records, round-robin voting looks to the total number of votes cast for and against each candidate in all of the one-on-one matchups—just as round-robin sports tournaments look to an equivalent total point differential statistic to break ties. When used in a primary election as the method to identify the top two candidates deserving to compete head-to-head as finalists in the general election, comparable to the use of round-robin competition as the preliminary stage of a sports tournament, round-robin voting is the electoral system best able to implement the democratic idea of majority rule.

I was delighted to have the opportunity to present an earlier draft at the University of Wisconsin Law School’s “Public Law in the States Conference” on June 23, and I’m looking forward to working with the Wisconsin Law Review on preparing the paper for publication. This draft will be revised before submission to the law review’s editors at the end of August, and therefore I very much welcome any comments that readers might email me before then.

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“New York GOP groups sue over Working Families petitions”


County Republican organizations around the state have filed lawsuits trying to remove Democrats from the state Working Families Party line ahead of the June primaries.

The move comes as local Republicans in at least three counties have also tried to co-opt the WFP line – a move they made after other minor parties they relied on to boost their voting totals in elections were booted from the ballot under new state election thresholds.

Lawsuits in state Supreme Court have been filed in Albany, OnondagaMonroe, Niagara, Rensselaer, Saratoga, and Schenectady counties, according to court records and media reports. The lawsuits allege that the Working Families Party’s executive committee did not properly authenticate petitions from Democrats seeking to run on the WFP line.

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“Judge rules against Georgia’s limits on third-party House candidates”


Georgia’s steep requirements for Libertarian and other third-party candidates to run for Congress are “overbroad,” shutting them out of the political process, a federal judge ruled Monday.


On March 29, U.S. District Court Judge Leigh Martin May, an Obama appointee, issued an opinion in Cowen v Raffensperger, n.d., 1:17cv-4660. It invalidates the 5% petition for minor party and independent candidates for U.S. House, combined with the filing fee, which is 3% of the office’s annual salary. The opinion suggests that because Georgia has a 1% petition for non-presidential statewide petitions, the state would be hard-pressed to justify requiring a petition greater than 1%.

All of these petition percentages are based on the number of registered voters.

The opinion asks both sides to submit further briefs by the next three weeks, to discuss what the interim remedy should be. The legislature adjourns for the year on March 31, so obviously the legislature can’t write a new law this year.

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Must-Read Story Out of Florida: “Evidence suggests several state Senate candidates were plants funded by dark money”

Local10 News:

Why would candidates for Florida Senate seats do no campaigning, no fundraising, have no issue platforms, nor make any effort to get votes?

Local 10 News has found evidence to suggest three such candidates in three Florida Senate district races, two of them in Miami Dade County, were shill candidates whose presence in the races were meant to syphon votes from Democratic candidates.

Comparisons of the no-party candidates’ public campaign records show similarities and connections that suggest they are all linked by funding from the same dark money donors, and part of an elaborate scheme to upset voting patterns.

In one of those races, District 37, a recount is underway because the spread between the Democratic and Republican candidates is only 31 votes. The third party candidate received more than 6300 votes.

That third party candidate is Alexis Rodriguez, who has the same last name as the Democratic incumbent senator Jose Javier Rodriguez. The Republican challenger is Ileana Garcia.

Alexis Rodriguez falsified his address on his campaign filing form last June. The couple who now live at the Palmetto Bay address say they have been repeatedly harassed since then by people looking for Rodriguez, who hadn’t lived there in five years.

Local 10 visited Rodriguez’s place of business Tuesday, where Rodriguez lied about his identity. Pretending to be a business partner, Rodriguez shed little light on his sudden candidacy in the District 37 race and lack of fundraising or campaigning.

Local 10 began investigating Rodriguez’s candidacy because of a hunch by Executive Producer Natalie Morera de Varona last month. She was collecting candidates’ headshots for election broadcast graphics and was curious why a candidate was nowhere to be found, not returning phone calls.

A search of campaign documents filed by Rodriguez led to a money trail and campaign finance connections with other no-party third candidates in Florida Senate District 9 in Central Florida, and District 39 in Miami-Dade.

The District 39 candidate is 81-year-old Celso Alfonso, a retiree who named the woman he calls his wife as campaign treasurer. She owns a day spa, and the home where we found Alfonso Tuesday afternoon.

He, too, lied about his identity at first, and finally admitted to being the candidate.

Alfonso claimed he had a lifelong dream to be in public service. He said he filed on his own, that no one assisted him.

A comparison of candidates Alfonso and Rodriguez show unusual similarities.

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“An accidental candidate looms as wild card in Katko-Balter race for Congress”

Steve Williams agreed to be only a temporary placeholder on the Working Families Party line until Democrats chose a candidate – ultimately Balter – in the June 23 primary election.

But now he’s stuck on the ballot, even though he’s backing Balter. His awkward position is the result of miscalculations by the Working Families Party and a lawsuit by Republicans, who want to block Balter from gaining a third-party line in the election.

Williams’ appearance on the ballot takes on added importance because a Siena College | poll shows Balter (45%) and Katko (42%) locked in a statistical dead heat. The race is within the poll’s margin of error of plus or minus 5.1 percentage points.

If the election is anything like 2010, when Ann Marie Buerkle defeated Rep. Dan Maffei by 648 votes in the Syracuse-based congressional district, Williams could be a big factor in the final outcome.

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