Ballot Access Blues: Controversial Cases From the 2016 Election Cycle
As with past election cycles, third party and independent candidates – as well as initiatives aimed at reducing the power of the two major parties – are struggling to achieve access to general election ballots. In some cases, this is the result of general apathy toward specific parties, candidates, or reforms.
In other cases, however, their exclusion from the ballot stems from a variety of causes, including minor technicalities, official ineptitude, constitutionally dubious legal barriers, and, in extreme cases, cynical attempts by partisan forces to stifle political competition.
Third Party Candidates
In Idaho, for example, the state initially informed presidential candidate Darrell Castle on August 3 that his effort to petition onto the ballot as an independent would be rejected because independent candidates, the state claimed, could not have a partisan affiliation (Castle is the national Constitution Party’s nominee but is not supported by the state party).
The state’s argument, however, was shown to contain flaws: the state’s 1977 law affirms that independent candidates cannot have an affiliation with a state party, and, moreover, Castle is a resident of Tennessee, which does not have party registration. Furthermore, in the past, the state has allowed members of parties in other states to appear on the ballot as independents, including Jill Stein in 2012 (registered as a Green Party member in Massachusetts) and John Anderson in 1980 (who, in Congress, identified as a Republican).
On August 11, the secretary of state reversed its decision and stated that Castle can run as an independent. To win a spot on the ballot, Castle will need to submit at least 1,000 signatures by August 24.
In Ohio, the Libertarian Party candidate Gary Johnson has also faced a controversial ballot access challenge, though one that appears to have been resolved in Johnson's favor.
Ohio is governed by a Republican legislature and governor and is a key battleground state for the 2016 presidential election. In recent years, the state has become increasingly hostile to third parties in general and the Libertarian Party in particular. In 2013, for instance, it adopted a stricter ballot access law, and in 2014, a GOP-led effort succeeded in keeping the Libertarian gubernatorial candidate off the ballot.
Earlier this month, an election official stated that Johnson and his running made, Bill Weld, might not be able to replace the stand-in candidates who held their spots during the petition drive prior to the Libertarian Party's national convention (though such substitution is allowed). The state also suggested that the substitution could only take place after the petition has been approved, and since the substitution deadline was scheduled for August 15 – before certification had been completed – some outlets reported that Johnson could have been left off the ballot.
In recent days, however, the state confirmed that the swap is permitted, and Johnson will appear on the ballot if at least 5,000 of the approximately 12,000 submitted signatures are verified. Johnson and Weld will likely appear on the ballot in all 50 states and Washington, D.C.
The Green Party is also fighting for ballot access, hoping to have presidential candidate Jill Stein appear as an option in as many as 47 states.
In some states, the party has run up against high barriers. In Georgia, for instance, the party submitted thousands of signatures above the minimum of 7,500, but the state disqualified many of them, validating only 5,925, thus denying Stein a place on the ballot. And in North Carolina, the party only managed to have Stein declared as a "certified write-in" candidate. The state has the second earliest deadline to submit signatures (after Texas) and one of the highest thresholds – 2 percent of the votes cast in the previous gubernatorial election: in this case, nearly 90,000.
The Green Party has filed several lawsuits thus far to gain ballot access. In Nevada, the party sued the state, claiming that its June 3 deadline for the submission of signatures is too early (the party failed to submit the requisite number of signatures prior to the deadline). As pointed out by Ballot Access News editor Richard Winger, two legal precedents might help the party's case: in 1993, a U.S. District Court determined that the state's deadline of June 10 was too early, and 2008, the Ninth Circuit made the same determination about Arizona's June 10 deadline.
The Green Party is also suing Oklahoma, claiming that its signature requirement – 3 percent of the votes cast in the previous presidential election – is too strict.
Also suing Oklahoma over its signature requirement is independent presidential candidate Roque "Rocky" de la Fuente. De la Fuente's campaign is unique and somewhat mysterious. Having failed to secure the Democratic Party's nomination, the Florida businessman is now investing millions of dollars in lawsuits to gain ballot access across the country.
In California, for instance, de la Fuente has sued the state over its August 12 deadline and its burdensome signature requirement of 1 percent of the state's registered voters: in this case, more than 170,000. (The last independent president candidate to meet this requirement was Ross Perot in 1992.)
De la Fuente has also sued Georgia for invalidating his independent petition effort on the grounds that he did not submit a list of presidential elector candidates prior to the July 1 deadline. De la Fuente later submitted twice the number of required signatures before the July 12 deadline – a submission that also included the list of electors.
He also plans to sue Pennsylvania, which has rejected his petition effort by citing the state's "sore loser" law (which prevents those who lost a party primary contest from then running as independents). De la Fuente's argument is that, in a presidential primary contest, this law does not apply, since voters in Pennsylvania do not select a primary candidate, but instead vote for delegates to the national convention. Likewise, de la Fuente argues that in November, it is electors who are being chosen, not candidates like himself.
To facilitate his presidential bid, de la Fuente is also looking to appear on the ballot by gaining the support of ballot-qualified third parties.
On August 9, the Reform Party announced de la Fuente as its presidential nominee. The Reform Party has ballot access in several states, including his home state of Florida (prompting him to drop his lawsuit there). He also created the Delta Party to gain ballot access in states where it is easier to do so as a minor party than as an independent candidate. This strategy succeeded in New Mexico, where he will appear on the November ballot as the Delta Party's nominee.
A similar all-of-the-above ballot access strategy is being pursued by the conservative independent presidential candidate Evan McMullin. The 40-year-old ex-CIA officer jumped into the race on August 8 as the "Never Trump" movement's answer to the GOP nominee.
McMullin's campaign has announced a five-point plan to gain ballot access in states across the country: (1) petitioning onto the ballot; (2) gaining access through minor parties; (3) challenging states whose deadlines have passed; (4) using write-in campaigns; and (5) awaiting the collapse of Trump's campaign.
Thus far, McMullin has gained access as an independent in several states with low barriers, including Utah and Colorado. The campaign is planning to sue several states whose petition deadlines have passed, including Texas, as well as states with June deadlines, including Illinois, Indiana, and North Carolina.
McMullin has been nominated by the Independence Party of Minnesota and will likely appear on the ballot in that state if the party submits at least 2,000 valid signatures. The campaign is also trying to earn a party line spot in New Mexico, where its petition to register the Better for America Party was denied.
McMullin hopes to appear on enough states and secure enough votes to deprive Trump and Clinton a majority of Electoral College votes, which would turn the presidential election over to the House of Representatives. The House would then choose among the top-three candidates, and McMullin hopes that the Republican majority would select him over Trump and Clinton.
Independent House candidate David Gill is also involved in a controversial ballot access case. Competing to represent Illinois's 13th district, the former Democrat (whose message is much like that of Senator Bernie Sanders) has had his petition challenged by both Democrats and Republicans, and the Illinois State Board of Elections determined, after invalidating thousands of signatures, that Gill lacked the requisite number to appear on the November ballot.
In response, Gill has sued the state. He claims that his independent candidacy is receiving unfair and constitutionally unequal treatment: Gill had to submit a number of signatures equal 5 percent of the votes cast in the previous congressional election – more than 10,000 in this case, whereas his two opponents needed to submit fewer than 800 to appear on their parties' primary ballots.
Redistricting Reform Ballot Initiatives
Illinois is also the site of an ongoing legal battle over whether a ballot initiative to reform the state's redistricting, the Independent Map Amendment, will be put to the state's voters in November.
In July, a Cook County judge struck from the ballot an initiative that would have taken the responsibility of redistricting away from the General Assembly and put it in the hands of an 11-member commission. According to the plan, if the commission failed to approve a map, two state Supreme Court justices – one from each party – would have chosen who would draw it.
The judge claimed that the initiative, as written, violated the Illinois Constitution, which limits the focus of ballot initiatives to matters related only to the structure and procedure of the General Assembly. According to the judge, involving two Supreme Court justices in the process – and stipulating that there be at least one justice from two parties on the bench – put the scope of the initiative outside its constitutional bounds.
The ruling came as a victory to the opponents of the proposed amendment, led by Illinois House Speaker Michael Madigan and his counsel, Michael Kasper – both Democrats. Both have also opposed an initiative to impose term limits for lawmakers in the General Assembly.
The case over the redistricting initiative is now before the Illinois Supreme Court, leaving supporters of the initiative – including more than 560,000 state residents who signed the petition – anxious over whether it will appear on the ballot. They are hoping it does not receive the same fate as similar initiatives that were invalidated by the Colorado Supreme Court earlier this summer.
In that case, the justices ruled in a 4-3 decision that Initiative 132 and Initiative 133, which both would have prohibited political gerrymandering and tweaked the operation of two state commissions, violated the single-subject rule.
Moreover, the majority found that Initiative 132 – calling for an independent redistricting commission to draw the state's congressional districts – contained a third subject.
that “very provision in the initiatives is necessarily and properly connected to the single subject of changing how electoral districts are redrawn in Colorado."
The Title Board, a three-member body within the office of the secretary of state, determined in April that the initiatives did not violate the single-subject rule. The dissenting minority in the case agreed with that conclusion, with one justice writing
The above sample of ballot access fights – by no means exhaustive – showcases the various obstacles that alternative candidates and political reformers face in challenging the entrenched political duopoly.
They also reveal the catch-22 that explains why, despite the growing frustration with both parties and with the two-party system as a whole, it is so difficult to achieve the pluralism that voters crave: namely, in order to enact the political reform that voters want, they will have to defeat the partisan forces that are fighting these reforms, but in order to defeat these political opponents, they will have to overcome the very obstacles that incumbents have put in place to reduce competition and that make alternative, insurgent candidacies so difficult in the first place.
The results of the November elections this year, at all levels, will indicate whether voters are willing to accept "politics as usual," or whether they are ready to declare their collective independence and vote for the changes they want to see.