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.
“Cert petition of the week” highlighted at SCOTUSblog, summarizing the case Mazo v. Way.
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.”
New York Law Journal: A Manhattan judge has struck down as unconstitutional a New York City law that bars those with convictions for public corruption crimes from running for public office.
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.'”
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.
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.
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.
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.
Hat tip to Richard Winger, of course, on the news.
I’d be intrigued to see if there’s any correlation between the major-party vote margin and the permissiveness of a state’s minor-party ballot access structure.
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.