A Spot on the Ballot: Alternative Candidates, the Supreme Court, and the Long Fight for Inclusive Elections (Part 1 of 2)

Ballot Access in Historical Context

Over the last several decades, the percentage of Americans who self-identify as independents has climbed to above 40 percent while attachment to the Democratic and Republican parties has declined. And in recent months, broad dissatisfaction with the presidential nominees of both parties has caused the public to look to third party and independent options to find candidates who better represent their views.

Yet despite this shift in support, third party and independent candidates have faced and continue to face obstacles in securing access to general election ballots (not to mention access to debates). The Green Party, for instance, is mounting legal challenges to state restrictions in its efforts to appear on as many ballots as possible, and the campaign of independent candidate Evan McMullin has stated its intention to do the same. And while Libertarian Party presidential candidate Gary Johnson is likely to appear on ballots in all 50 states, this has not been without some struggle and controversy.

Though many have grown accustomed to seeing few options during a general election, as a matter of history, onerous ballot access requirements and having a narrow range of choices are relatively new phenomena in American politics. Such strict requirements began to arise after the contentious presidential election of 1912 and proliferated significantly in the 1930s and 1940s.

Parties and candidates from across the spectrum challenged these restrictions in state and federal courts, and beginning in the 1960s, some of these challenges percolated all the way up to the Supreme Court. It is the Court’s decisions from that decade onwards that have established lasting precedents in the domain of ballot access and created the political environment – for better and for worse – in which third party and independent candidates must compete today.

The Supreme Court and Ballot Access

Prior to its series of ballot access rulings beginning with Williams v. Rhodes in 1968, the Court recognized the importance of pluralism and electoral competition in a strong and vibrant democracy.

In Sweezy v. New Hampshire (1957), for instance, the Court wrote, “Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents,” adding, “All political ideas cannot and should not be channeled into the programs of two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted.”

And in  Reynolds v. Sims (1964), the Court stated that “The right to vote freely for the candidate one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

These statements undergirded and forecast the Court’s ruling in Williams v. Rhodes, when the Court invalidated Ohio’s overly restrictive rules pertaining to ballot access for presidential candidates, which the majority described as “invidiously discriminatory” toward challengers to the Democratic and Republican parties.

Yet, as we’ll see below, this ruling was just the first of several important ballot access decisions (though the sample below is by no means exhaustive), and subsequent rulings created a body of precedents that have determined – with some degree of specificity – what sorts of requirements serve a legitimate state interest and what sort of requirements unconstitutionally restrict the rights of voters, candidates, and parties.

Williams v. Rhodes (1968)

In 1968, both the American Independent Party (supporting George Wallace) and the Socialist Labor Party challenged Ohio’s laws stipulating that to access the general election ballot, a party had to collect signatures equal to 15 percent of the number of votes cast in the last gubernatorial election and submit its petition two months before the major parties’ primaries. (The AIP submitted more than the requisite 433,000 signatures but not until after the February 1968 deadline; the SLP, with slightly more than 100 members, did not submit enough signatures.)

The plaintiffs based their argument primarily on the equal protection clause of the Fourteenth Amendment, noting that other parties needed to win only 10 percent of the vote in the previous gubernatorial election to remain on the ballot. The AIP also cited the earlier deadline for the submission of the petition as unequal and discriminatory.

The state defended its laws by citing Article II of the Constitution, which allows state legislatures to decide who its electors will be. It was therefore free to determine whether to hold an election, and, if it did, the state argued, to determine how to run that election. During oral arguments, the state’s lawyer also said it had “a legitimate interest in protecting against the distortion of the popular vote against the two candidates having a chance to win.”

In its decision, the six-member majority agreed that Ohio’s rules violated the Fourteenth Amendment, and Wallace was able to appear on the November ballot. Writing for the majority, Justice Hugo Black wrote – in language reminiscent of the Court’s statements in the Sweezy and Sims cases,”The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot, and thus denied an equal opportunity to win votes.”

Jenness v. Fortson (1970)

Two years later, the Court accepted a case challenging Georgia’s ballot access laws, which required that to appear on the ballot, a third party or independent candidate needed within a six month period to collect signatures equal to 5 percent of the number of registered voters in the previous election for that office (e.g. 5 percent of statewide voters for a gubernatorial candidate, 5 percent of district-wide voters for the U.S. House, etc.).

The rules were challenged by Linda Jenness, the gubernatorial candidate from the Socialist Workers Party, as well as two SWP congressional candidates and two registered Georgia voters interested in having greater diversity on the ballot.

They rested their case on the Fourteenth Amendment, noting that the winner of a major party’s primary received an automatic place on the ballot. (In 1970, a candidate attempting to petition onto the gubernatorial ballot needed approximately 88,000 signatures; the Republican nominee that year, Harold Suit, won his primary with fewer than 63,000 votes.) They also cited an unfair curtailment of their First Amendment rights. (Television stations in Georgia did not grant equal time candidates who failed to petition onto the ballot or qualify as write-in candidates.)

The state justified the 5 percent threshold on several grounds, including its interest in keeping “frivolous” candidates off the ballot so as to reserve it for those with substantial support and preventing overcrowding on the ballot (though the state could not explain to the Court why in 1943 the 5 percent figure was chosen). In oral arguments, the state also said it wanted to limit the number of candidates so as to “encourage stability and compromise.”

The Court ruled in favor of Georgia, upholding the constitutionality of its ballot access laws. Writing for the majority, Justice Potter Stewart referred to several major differences between the Ohio rules it invalidated in Williams v. Rhodes and those of Georgia.

Perhaps most significantly, the Court sanctioned the 5 percent threshold even though it was not, despite appearances, one-third less stringent than Ohio’s 15 percent threshold. Ohio used a percentage of votes cast metric rather than a percentage of registered voters metric. At the time, given voter turnout rates, Georgia’s 5 percent of registered voters requirement was roughly equivalent to 10 percent of votes cast (or two-thirds the severity of Ohio’s requirement).

And while indeed more lenient in this respect than Ohio’s rules, Georgia’s were in some ways more prohibitive. Georgia required parties to receive 20 percent of the vote to remain ballot-qualified, while Ohio mandated 10 percent. And in Ohio, a party could file a single petition to have its candidates qualify for the ballot, while in Georgia, a party had to submit 14 separate petitions to run a full slate of candidates.

In light of this comparison, one legal scholar argued that the Court should have reached the same decision in Jenness that it did in Williams. “If the Georgia scheme did not, like its Ohio counterpart, ‘freeze the political status quo,'” he wrote, using the words of Justice Potter, “surely it solidified the status quo, that is, Democrat and Republican supremacy, sufficiently to merit the same result.”

Nevertheless, the 5 percent figure was upheld, and it remains, as we’ll discuss below, the current ceiling on petition and vote test requirements for access to the general election ballot.

Anderson v. Celebrezze (1983)

Fifteen years after Williams, the Court once again was faced with a challenge to Ohio’s ballot access laws. In this case, the challenge was brought by John Anderson, who ran an independent candidacy for president beginning in April 1980. However, his petition (submitted in May 1980) was two months late, as Ohio’s deadline was set for March 20.

Anderson argued that the early deadline violated the Fourteenth Amendment (because his petition was due before the major parties’ primaries and was thus unfair and discriminatory) and violated the First Amendment (because it denied him the ability, as a candidate, to canvass the state and share his ideas with voters who may have been interested).

The state justified the early deadline on the grounds that voters needed the many months between the deadline and the November election to learn about independent candidates. It also expressed an interest in maintaining “stability” through limiting the number of viable candidates.

The Court ruled that the early deadline was unconstitutional. It scoffed at the notion that voters needed more than seven months to learn about an independent candidate, and it denied that one state could play a stabilizing role in a national, presidential election.

Yet the decision was unique in that the justices employed a “balancing” standard. In other words, rather than using the rigorous strict scrutiny test as it did in Williams (which requires the state to demonstrate a compelling interest to justify the restriction of fundamental constitutional rights), the instead “weighed” the interests of the state against the rights restrictions – a more subjective standard of review that, as we’ll see in the next case, is less protective of rights than strict scrutiny.

This article is Part 1 in a two-part series reviewing Supreme Court ballot access decisions and the effects of the Court’s precedents on independent and third party candidates. You can read Part 2 here.