Category Archives: ballot access

“N.Y. Democrats back election law change to remove former Lt. Gov. Brian Benjamin from ballot”

NYDN:

 Advocates and Democratic lawmakers have devised a way to boot recently indicted ex-Lieutenant Gov. Brian Benjamin from the ballot.

Or at least prevent another problem like the one Dems will face in two months when Benjamin’s name will still appear on the June 28 primary ballot despite his resignation after being indicted earlier this week on federal corruption charges.

An election law change being proposed by Common Cause/NY and sponsored by Assemblywoman Amy Paulin (D-Westchester) would allow a candidate to step off the ballot if they are indicted for a crime, have resigned from the office they are seeking or are diagnosed with a life-threatening illness.

Under current law, a candidate who has accepted a party nomination can’t decline or be removed from the ballot unless they die, move out of state, or are nominated for another office.

“This is a problem for New Yorkers who will confront a ballot that does not reflect the reality of the field, and may end up throwing away their vote on a candidate who is not running for office,” said Susan Lerner, executive director of Common Cause/NY. “It’s simply unfair and wrong to present the voters with a false choice.”

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“Lawsuit seeks to block ‘insurrectionist’ Marjorie Taylor Greene from reelection bid”

Jan Wolfe at Reuters:

A group of Georgia voters on Thursday asked state officials to block Republican U.S. Representative Marjorie Taylor Greene from running for reelection, alleging she is unfit for office because of her support of rioters who attacked the U.S. Capitol.

In a legal challenge filed with the Georgia Secretary of State, the voters claim Greene has violated a provision of the U.S. Constitution known as the “Insurrectionist Disqualification Clause.”

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Adding qualifications for congressional candidates and a Section 3 puzzle

Earlier, I blogged my skepticism about a state’s power to review the qualifications of a congressional candidate and exclude that candidate from the ballot, specifically referring to a Section 3 of the Fourteenth Amendment challenge to Representative Madison Cawthorn’s candidacy. Not everyone is terribly supportive of the “strong” version of this argument I set out. But let me suggest a “weak” version of the argument.

Assume that my thesis is wrong, and a state may evaluate the qualification of a candidate for office as a condition of appearing on the ballot. A 15-year-old could not appear on the ballot, for instance.

But states may not add qualifications to candidates seeking congressional office. That’s U.S. Term Limits v. Thornton. And some state enforcement of existing qualifications rules could function as an additional requirement.

Consider the age example, and let’s begin with President Joe Biden. In 1972, Biden first ran for Senate at the age of 29. He was not eligible to serve in the Senate. But, after Election Day–after he was elected–he turned 30. He presented his credentials to the Senate several weeks after Election Day and was seated.

If Delaware had excluded Biden from the ballot on the basis that Biden was “ineligible” as of Election Day–or, really, at the ballot access deadline weeks before Election Day–it would have impermissibly added a qualification to a candidate seeking federal office.

The same is true for inhabitancy rules. Article I conditions that no person can serve as a Representative “who shall not, when elected, be an inhabitant of that state in which he shall be chosen.” A state has no power to evaluate inhabitancy before Election Day, because it would add a qualification to a candidate seeking federal office.

Now, to whether one has “engaged in insurrection.” We know, as of today, at least, whether one’s participation in activities in and around January 6, 2021 rises to the level of a Section 3 violation. (Let’s stipulate for our purposes that a candidate has done so.)

But there’s a catch: “Congress may by a vote of two-thirds of each House, remove such disability.” This is an odd qualification, because a disqualification that Congress itself can change. And as of today, we don’t know whether Congress will or will not remove that qualification before Election Day–or before January 3, 2023, in the event that candidate is elected. Put differently, a state like North Carolina can’t condition ballot access on whether, as of today, you’ve engaged insurrection, because it would add a qualification.

This appears to be a strange rule. We might not know whether someone is qualified until after he’s elected? And then, what, we leave it Congress to sort it out?

But it was entirely sensible in 1868. States didn’t administer the ballot. For the House, voters filled out pieces of paper, or they dropped tickets printed and distributed by political parties into the ballot box. The state didn’t filter who could or couldn’t appear on the ballot, because that was entirely left to the voters.

I don’t know whether the federal collateral attack on North Carolina’s ballot access review process will succeed (there are abstention hurdles to overcome, among other things), but whether a state court or a federal court reviews the question first, it’s worth highlighting the “weak” version of the argument that states cannot review the qualifications of candidates.

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“Eleventh Circuit Upholds Georgia’s 5% Petition for U.S. House Independent and Minor Party Candidates”

BAN:

On January 5, 2022, the Eleventh Circuit reversed the U.S. District Court and found that Georgia’s 5% petition (of the number of registered voters) for independent candidates, and the nominees of parties that didn’t poll 20% of the vote in the last election for president or governor, is constitutional. Here is the 17-page opinion.

The decision says the requirement is not “severe”, even though the evidence in the case shows that no one has successfully overcome that requirement since 1964, when the deadline was in October and the signatures were not checked and didn’t need to be notarized, and district boundaries did not split counties. The evidence also shows that in the 21st century alone, twenty attempts have been made, all of which failed.

The decision does not explain why the requirement is not severe, other than to say that in 2020, a candidate for judicial office met the requirement. But he was running in a judicial district that has far fewer voters than a U.S. House district, and his district was comprised of five counties, so the boundary of the district did not cross county lines. Also he only needed 3,526 signatures. U.S. House petitions are approximately 25,000. The Georgia Secretary of State still has not calculated the precise requirement for 2022 in any district.

If Georgia’s law is constitutional, then a similar law in all states would be constitutional. And if every state had a law like Georgia’s, there would have been an absolute monopoly of Democratic and Republican candidates on the ballot for U.S. House in the entire nation for almost 60 years.

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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.

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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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