Category Archives: ballot access

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.

Share this:

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.”

Share this:

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.'”

Share this:

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.

Share this:

“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.

Share this:

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.

Share this:

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.

Share this:

“No Labels group raises alarms with third-party presidential preparations”


Former senator Joe Lieberman knows better than most the impact third-party bids can have on presidential elections. His 2000 Democratic campaign for vice president fell just 537 Florida votes short of victory, in a state where Ralph Nader, the liberal activist and Green Party nominee, won more than 97,000 votes.

But that didn’t stop the Connecticut Democrat turned independent from joining a meeting Thursday in support of plans by the centrist group No Labels to get presidential ballot lines in all 50 states for 2024. The group calls its effort an “insurance policy” against the major parties nominating two “unacceptable” candidates next year.

Asked if President Biden, his former Senate colleague, would be unacceptable, Lieberman said the answer was uncertain.

“No decision has been made on any of that. But we’re putting ourselves in a position,” Lieberman said. “You know, it might be that we will take our common-sense, moderate, independent platform to him and the Republican candidate and see which one of them is willing to commit to it. And that could lead to, in my opinion, a No Labels endorsement.”

Uncertainty over the $70 million No Labels ballot effort has set off major alarm bells in Democratic circles and raised concerns among Republican strategists, who have launched their own research projects to figure out the potential impacts. As Lieberman spoke, the Arizona Democratic Party filed a lawsuit to block No Labels from ballot access in that state on procedural grounds. Matt Bennett of the centrist Democratic think tank Third Way has argued that the plot is “going to reelect Trump,” and Adam Green of the Progressive Change Campaign Committee has accused No Labels of wanting “to play the role of spoiler.”

“The only way you can justify this is if you really believe that it doesn’t really matter if it is Joe Biden or Donald Trump,” said Stuart Stevens, a former presidential campaign strategist for George W. Bush, John McCain and Mitt Romney, who now works with the anti-Trump Lincoln Project. “So it is sort of a test. If you live in a world where it doesn’t matter, this is kind of harmless. If you live in a world where it does matter, it is dangerous.”

Splits have also emerged inside the organization. William Galston, a Brookings Institution policy scholar, said this week that he would separate himself from No Labels, which he helped found, over its 2024 planning for a third-party campaign to challenge Biden and Trump.

“I am proud of No Labels’ record of bipartisan legislation, and I know its leaders want what is best for the country. But I cannot support the organization’s preparation for a possible independent presidential candidacy,” he said in a statement. “There is no equivalence between President Biden and a former president who threatens the survival of our constitutional order. And most important, in today’s closely divided politics, any division of the anti-Trump vote would open the door to his reelection.”

Share this:

“Arizona Democrats to sue No Labels to block third-party challenge”


The Arizona Democratic Party will file a lawsuit Thursday against the state’s top election administrator and No Labels, seeking to reverse the moderate group’s recognition as a political party for the 2024 elections, according to Democratic officials.

The lawsuit, in state court in Phoenix, reflects growing concern in Democratic circles that a No Labels third-party ticket in 2024 will jeopardize the reelection hopes of President Biden and make it harder for Democrats to maintain control of the Senate.

The lawsuit claims that Secretary of State Adrian Fontes, who is a Democrat, made an error in accepting signature petitions for the No Labels Party, because accompanying affidavits from proposed electors were signed before all the petitions were gathered, in violation of state statute. As a result, the Arizona Democratic Party claims the affidavits purporting to verify the petitions should be considered false and the petitions invalid.

The lawsuit also argues that No Labels, which is organized as a social welfare nonprofit that is not required to disclose its donors, has failed to comply with the federal requirements of a political party, including donation limits and donor disclosure.

“No Labels is not following the rules for political party recognition, while attempting to be placed on the ballot alongside actual, functioning political parties who do,” said Morgan Dick, spokeswoman for the Arizona Democratic Party. “Arizonans deserve better and voters deserve to know who is behind this shadowy organization and what potentially nefarious agenda they are pushing.”

Ryan Clancy, the chief strategist for No Labels, dismissed the lawsuit as a political move.

“This undemocratic and unscrupulous lawsuit is a disgrace,” he said in a statement. “Next time you hear this crowd talking about protecting democracy, remember what they are really doing is protecting their turf.”

Share this:

“‘If You Ain’t First, You’re Last'” How State ‘Sore-Loser’ Laws Make It Impossible For Trump To Run A Successful Third-Party Campaign If He Loses The Republican Primary”

Jason Torchinsky, Steve Roberts, Dennis Polio, and Andrew Pardue write in the Harvard Journal of Law and Public Policy:

In recent months, Donald Trump and his supporters have stoked rumors that he may run as
a third-party candidate for president in 2024 if he fails to win the Republican nomination. These
rumors, sometimes bordering on outright threats, have reinvigorated a discussion of sore-loser
laws—restrictions that states place on candidates running in the general election after losing a
primary election. This discussion has centered on two questions: 1) whether sore-loser laws apply to candidates for president, and, if so; 2) whether a Trump third-party campaign can win a majority of electoral college votes if sore-loser laws prevent him from accessing the ballot.

This article explores the hypothetical scenario where Trump (or any other Presidential candidate) seeks to run in the general election after a losing bid for a major-party nomination.
Although nearly every state now has some kind of sore-loser restriction, their potential
application to presidential candidates has not been extensively studied. The Authors have determined that sore-loser laws in 28 states do indeed apply to presidential candidates and that if a candidate fails to win the Republican nomination, sore-loser laws will prevent access to the general election ballot in those states. This includes 20 states that Trump won in either 2016 or 2020 which total 225 electoral votes—more than 83% of the electoral votes needed for a majority.

As a result, it would be nearly impossible for Trump to win the general election as a third-party
candidate given the limited number of Republican-leaning or “tossup” states where his name
would appear on the ballot, which together amount to an insufficient number of electoral votes
for a general election victory. Accordingly, any third-party presidential campaign mounted by
Trump or any other defeated Republican could only function as a spoiler campaign—splitting
the vote that would otherwise coalesce behind the Republican nominee—thereby causing that
nominee to lose the general election.

Share this:

“New York moves to ban ‘independence’ from party ballot lines to reduce confusion”

State of Politics:

At the height of its power, the Independence Party in New York had registered more than 400,000 voters in the state. For years, political observers, elected officials and candidates suspected many of those voters were duped into enrolling in a party when they meant to register as “blanks” — no party affiliation at all.

A law signed this week by Gov. Kathy Hochul is meant to put an end to that.

The new law will restrict the use of “independence” or “independent” from the name of a ballot line in order to reduce the chances of confusing voters into registering for a party when they mean to be true registered independent voters.

A large enrollment for the Independence Party in New York enabled it to leverage real sway with candidates who sought their ballot line in general elections. Candidates in New York can run on multiple ballot lines.

“A party known for preying on independently-minded New York voters to inflate its rolls should have no place in our democratic system,” said state Sen. James Skoufis, a Democrat from the Hudson Valley who sponsored the measure with Assemblyman Jeff Dinowitz of the Bronx.

Share this: