On July 24, 2015, Greg Dorsey filed a lawsuit against the Maryland State Board of Elections, arguing that the state’s requirements for independent ballot access for a Senate seat are unconstitutional. Dorsey claims that those who run as unaffiliated candidates are faced with unfair requirements that violate the First and Fourteenth Amendments of the U.S Constitution.
Beyond what one might think constitutes a “free and fair election,” Maryland state law requires a non-affiliated candidate to obtain signatures from no fewer than 1% of registered voters (approximately 38,000 signatures) just to appear on the ballot as an independent candidate, as well as a $290 fee. The actual number of signatures are not yet known, because the number of registered Maryland voters won’t be available until January 1, 2016.
Therefore, Dorsey argues, the signature requirement adds uncertainty to nonpartisan campaigns that a partisan candidate doesn’t have to face. Candidates who run for the nomination of a political party are automatically placed on the general election ballot.
“Being a life-long independent, actually running for public office is one of the only ways I can truly participate. In my adult life, there have been no non-partisan candidates in my state/districts that I have felt comfortable backing, and the hell if I am going to vote for the lesser of two evils. To add insult to injury, unaffiliated candidates have the major hurdle, sometimes futile, of attempting to gain ballot access with petition signatures” – Greg Dorsey
Dorsey argues that the First Amendment’s protection of the freedom of association (and the corollary freedom to NOT associate), as applied to the Fourteenth Amendment’s equal protection clause, makes the regulations unconstitutional.
Being a life-long independent, actually running for public office is one of the only ways I can truly participate.Greg Dorsey
The state of Maryland responded to Dorsey’s legal brief by trying to dismiss his case, invoking Rule 12(b)(6) of the Federal Rules of Civil Procedure. In plain terms, the state argues that even if the rules are unfair, Dorsey does not present facts sufficient for a legal claim. His right of ballot access, according to the argument, is not protected by the Constitution because there is no right not to join a political party.
Dorsey’s legal argument can be compared to that of the recent Supreme Court ruling on gay marriage. Using the Fourteenth Amendment, the case was made that because the government must protect citizens equally under the law, it is unconstitutional for any level of government to grant some persons the right of marriage, and deny it to others. In that case, the fundamental right to marry was at issue.
In this case, Dorsey is asking the court to recognize the fundamental right to not join a private political party.
Dorsey is not alone in asking the court to recognize this right. The Independent Voter Project, for example, filed a lawsuit in New Jersey over the state’s closed primary election process. In a closed primary, only party members can vote. The Independent Voter Project argues that because the primary is an integral stage of the state’s election process, the state cannot force individual voters to join a political party as a condition of participation. A petition was filed in that case to the United States Supreme Court.
Dorsey is bringing an issue to the attention of the court that has yet to be fully addressed in our legal system. Namely, should any state be allowed to make the electoral process more difficult for nonpartisan voters and candidates than those that join a political party?