Category Archives: ballot access

Lower courts ruled this week in favor of easier access for voters and parties

BallotAccessNew reports two new cases in the lower courts:

  • A Montana state court has ruled that the Montana Constitution bars the legislature from having repealed election-day registration.
  • U.S. District Court has struck down Arkansas ballot access procedures for new or previously unqualified parties, finding the 3% petition, the early deadline, and the requirement that all signatures be gathered in 90 days too onerous.

More details on their site.

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Breaking–District Court preliminarily enjoins parts new Arizona voter law

The U.S. District Court for Arizona has preliminarily enjoined two key provisions of Arizona’s recent effort to regulate voter registration. Importantly, it found the statute’s provision seeking to criminalize efforts to register out-of-state voters is likely unconstitutionally vague and further that the registration cancellation provisions likely violate the National Voter Registration Act.

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“North Carolina’s Green Party says Democrats are working to keep it off 2022 ballot”

NPR:

In North Carolina’s high-profile U.S. Senate race this November, the Green Party may not have the chance to play spoiler.

That’s because the state Board of Elections, which is controlled by Democrats, has — so far — refused to give the Green Party a spot on the ballot, citing possible fraud in their ballot petition.

That’s sparked complaints from the Green Party — along with Republicans — that the board is undermining the Green Party to boost Democratic Senate candidate Cheri Beasley as she faces off against Republican nominee Ted Budd.

The Green Party filed a lawsuit Thursday to try to force the state to give it a spot on the ballot.

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Richard Winger: “California’s Faulty Rules for Presidential Candidates Running Outside the Two Major Parties”

Richard Winger, author of Ballot Access News, has written this guest post:

California public officials are proud of the state’s protection for voting rights, but there is one area of voting rights in which California procedures are among the most restrictive in the nation.

The procedure for an independent presidential candidate requires almost 200,000 signatures, to be collected in 105 days.  The petition can’t start to circulate until after the presidential candidate has chosen his or her presidential elector candidates, because the names of the candidates for elector, with their addresses, must be printed on each petition sheet.  By contrast, in most states, the names of the presidential elector candidates don’t appear on the petition; instead the presidential candidate certifies their names after the petition is submitted.

Most states let independent presidential petitions circulate as early as the candidate wishes.

No presidential candidate has been able to comply with the California independent procedure for 30 years.  Ross Perot was the last candidate who used them, in 1992.

There is no election-administration reason to require almost 200,000 signatures.  There is no instance in which a state ever required more than 5,000 signatures for all procedures to get on the ballot (for presidential candidates running outside the major parties), and in which that state had more than nine presidential candidates on the November ballot.

Significant presidential candidates who failed to get on the California general election ballot, due to the state’s restrictive rules, include Evan McMullin in 2016, Ralph Nader in 2004, Eugene McCarthy in 1976, Norman Thomas in 1948 and 1944, and Congressman William Lemke in 1936. In Anderson v Celebrezze, the U.S. Supreme Court said states should have more lenient rules for presidential candidates than for candidates for other office.  California has it backwards.  The California rules for candidates for non-presidential partisan office only require 65 signatures plus a filing fee, and that does cause over-crowded ballots for Governor and U.S. Senator.  It makes no sense to require a gubernatorial candidate to submit only 65 signatures and yet to require a presidential candidate to submit almost 200,000 signatures.          

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Ballot Paper Shortage

The Bipartisan Policy Center will be releasing a report, Preparing for Ballot Paper Shortages in 2022 and 2024, that lays out recommendations to improve the supply and storage of ballot materials and contingency planning for last minute changes and delayed materials. On Monday at 12PM ET, it will be co-hosting a panel discussion with POLITICO about the nature of the problem, how election officials are preparing, and how state legislatures should support those efforts.

Participants include:
Moderator: Zach Montellaro, state politics reporter at POLITICO
Panelist: Amanda Grandjean, Director of Elections and Deputy Assistant Secretary of State for Ohio Secretary of State Frank LaRose
Panelist: Karen Brinson Bell, Executive Director of the North Carolina Board of Elections
Panelist: Matthew Weil, director of BPC’s Elections Project

Update: The paper is now available at this link (–rh).

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Breaking & Analysis —Commonwealth Court Issues Injunction in PA Republican Primary Recount

The Commonwealth Court of Pennsylvania ruled in favor of Dave McCormick’s petition for a “judicial declaration that ‘timely returned absentee and mail-in ballots may not be rejected due solely to the lack of a date in the declaration on the exterior envelope’” and a special injunction directing various county boards to count such ballots. McCormick argued both state and federal grounds, maintaining that “the dating provisions set forth in Sections 1306(a) and 1306-D(a) of the [PA] Election Code are not material to determining the qualifications of that voter under federal and Pennsylvania law.” In terms of the state law ground, McCormick emphasized that the Pennsylvania Constitution requires that “the Election Code is to be liberally construed so as not to deprive voters of their right to elect a candidate of their choice.”

The Commonwealth Court ruled McCormick is likely to succeed on the merits with respect to both arguments–ordering counties, inter alia, “to provide two vote tallies to the Acting Secretary, one that includes the votes from those ballots without a dated exterior envelope and one that does not” so that “when a final decision on the merits of whether the ballots that lack a dated exterior envelope must be counted or not, the Acting Secretary will have the necessary reports from the County Boards.”    

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Lawsuit Challenging New Jersey’s Obfuscating Primary Ballot Design to Proceed

U.S. District Court denied seven motions to dismiss a lawsuit challenging the design of New Jersey’s primary ballots yesterday. The case seeks to end the influence county party leaders exert over ballot placement. Among other things, the suit challenges a provision that allows candidates for different offices, who request that their names be grouped together, to be placed in more favorable primary ballot slots–arguing that the practice violates the United States Constitution. The essence of the challenge is nicely captured by this video comparing New Jersey’s ballot design to a reasonable ballot design.

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“New York on brink of major voting rights act”

Democrats in Albany are expected to pass major election reforms. The package is expected to also “create a so-called pre-clearance program that requires local governments with histories of discrimination against minority voters to prove that any changes they make to voting laws or election procedures would not harm voters of color before taking effect.” New York boasts one of the least hospitable election regimes, designed by party machines to repressed turnout.

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“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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