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

Author: Andrew Gripp
Created: 07 September, 2016
Updated: 21 November, 2022
7 min read

This article is Part 2 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 1 here.

Munro v. Socialist Workers Party (1986)

In 1986, the Court accepted a challenge to a Washington state ballot access provision. This provision required third party candidates to receive at least one percent of the vote in the state's blanket primary in order to appear on the general election ballot.

The case was brought by the Socialist Workers Party's nominee for U.S. Senate, Dean Peoples, as well as the SWP and two registered voters. Peoples claimed that the provision, adopted in 1977, violated the First and Fourteenth Amendments, since the added 1 percent requirement pertained to a limited body of participants: primary voters. The provision had demonstrably reduced political competition, since, afterwards, only one minor party candidate had advanced to the general election up to the date of the trial.

Washington argued that it had a legitimate interest in keeping "frivolous" candidates and parties off the ballot, not only to prevent overcrowding and voter confusion, but also to save costs. (The state created and distributed a pamphlet to each residence educating voters about the general election and its candidates.)

The Court sided with the state, agreeing that it was justified in ensuring that general election candidates have a "significant modicum of voter support." The Court also held that the differences between a primary vote requirement and a nominating petition requirement "are not of constitutional dimension."

Significantly, the majority opinion claimed that, as in the Jenness case (and other rulings not covered here), the state had no obligation to demonstrate that the restriction was needed to address its stated concerns regarding the integrity of the general election ballot. "A State is not required to prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidates," the majority wrote, "as a predicate to imposing reasonable ballot access restrictions."

In the dissent (written by Justice Thurgood Marshall and joined by Justice William Brennan), the minority disputed the state's claims and the majority's decision not to interrogate them. Between 1907 and 1977, they observed, there had never been more than six minor party candidates on the general election ballot. Moreover, overcrowding only became a major concern after the 1977 reform – during a special election in 1983 when Peoples appeared on a primary ballot with 18 Democrats and 14 Republicans.

"Rather than alleviating the harm the statute purports to prevent, the law simply shifts any possible harm to the primary election," they wrote. "Where the State's solution exacerbates the very problem it claims to solve, the State's means cannot be even rationally related to its asserted ends."

The majority's decision not to apply the strict scrutiny test was likely pivotal. Strict scrutiny allows the Court to invalidate laws that impinge on fundamental rights if the government can achieve its legitimate interests through less exacting means. Indeed, this standard of review caused the Court in two separate cases from the 1970s to invalidate filing fees for candidates in Texas and California. The Court claimed that filing fees were too heavy-handed a way of discouraging frivolous candidates, since such fees penalized indigent candidates and were ineffective at discouraging wealthy candidates.

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Marshall and Brennan stated in their dissent that the same standard of review was called for in this case. They called the decision "overbroad," since it sought to keep frivolous candidates off the ballot "only by excluding virtually all minor-party candidates from general elections for statewide office." Contrasting the demonstrated ability of minor party candidates to compete for governor in Georgia in spite of the 5 percent requirement (prior to Jenness) with the evident obstacles faced by minor party candidates in Washington, they called the provision empirically excessive and thus unconstitutional.

Timmons v. Twin Cities Area New Party (1997)

In 1996, the Court heard arguments in a case over the constitutionality of Minnesota's ban on fusion voting, in which one party (typically a minor party) nominates a candidate from another party (often a major party) so that the major party candidate's name appears alongside the name of the minor party.

The New Party claimed that the ban violated its First and Fourteenth Amendment rights to freedom of association, since the law burdened its right to "communicate its choice of nominees on the ballot on terms equal to those offered other parties, and the right of the party's supporters and other voters to receive that information."

The state argued that it had legitimate interests in maintaing a stable political system, in avoid partisan infighting and splintering, and in avoiding voter confusion. It also sought to prevent minor parties from "bootstrapping" their way to major party status by depending on votes cast for the major party candidate on its own party line.

The majority ruled in favor of the state, claiming that "Minnesota's fusion ban does not severely burden the New Party's associational rights." Declining therefore to impose a strict scrutiny test, the majority determined that the state's interests were "sufficiently weighty to justify the limitation."

The dissenting opinion (written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg and David Souter) questioned whether the ban actually achieved its stated interests and whether its asserted concerns about confusion and instability were actual or "hypothetical" and "theoretical." The dissenters also noted that there were more precise, less oppressive ways for the state to achieve its various interests than through a ban on fusion voting.

In the third part of their dissent, Stevens and Ginsburg observed (without celebrating it outright) that fusion voting provides "a means by which voters with viewpoints not adequately represented by the platforms of the two major parties can indicate to a particular candidate that – in addition to his support for the major party views – he should be responsive to the views of the minor party whose support for him was demonstrated where political parties demonstrate support – on the ballot."

Lasting Precedents

The majority opinion in the Timmons case (authored by Chief Justice William Rehnquist) contained a remarkable and unprecedented statement about how states can interpret "political stability" and seek to promote this interest.

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"The States' interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two party system and that temper the destabilizing effects of party splintering and excessive factionalism," Rehnquist wrote. "The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two party system. And while an interest in securing the perceived benefits of a stable two party system will not justify unreasonably exclusionary restrictions, States need not remove all of the many hurdles third parties face in the American political arena today ."

This statement is as profound in its retrospection as it is in its prescience: it not only summarized the various restrictions imposed by states that preceded this case, but it also foretold the adoption of restrictions that followed it. After Timmons, for instance, several of the 10 remaining states that permitted fusion voting decided to ban it. And since 1997, states have persisted in passing laws that strengthen the two-party system in innumerable ways.

Given the Court's inconsistent application of strict scrutiny in ballot access cases, states reliably point to government-friendly precedents such as Munro and Timmons to justify restrictions of fundamental rights in the name of keeping "frivolous" candidates off the ballot – even without having to demonstrate that overcrowding or confusion occurs without such restrictions. These precedents grant states considerable leeway to determine what kinds of measures to impose, as they can enact "overbroad" and oppressive restrictions even if their interests could be achieved through less exacting means.

Of course, there are encouraging and significant precedents for pluralism as well. The decision in Anderson, for instance (invalidating Ohio's April petition deadline), has prompted courts to strike down deadlines as late as June. Likewise, the Court has invalidated provisions requiring petitioners to gather signatures across jurisdictions of varying population (e.g. county distribution requirements), which has made petitioning easier in most states. Furthermore, the decision in Williams has meant that states cannot enact measures that purposefully or evidently thwart third party and independent candidacies, and the decision in Jenness has put de jure (though not de facto) ceiling of 5 percent on signature requirements and – through the equivalence stated in Munro – vote tests.


Nevertheless, the application of strict scrutiny in ballot access cases could go a long way in empowering the rights of minor parties and independent candidates. If states cannot rely on theoretical concerns about overcrowding and confusion to keep such candidates off the ballot, and if they are forced to enact the least restrictive means ballot to advance their interests, there is a real possibility that restrictions that currently limit voter choice could be struck down.

Such a 'turn' in the standard of review could help usher in a new era of competitive elections, where alternative candidates are once again able to appear on general election ballots and thus have a platform to introduce their ideas to an electorate that is increasingly demanding to hear voices in our political discourse and options in our general elections.

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