Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws

New minor political parties and their candidates face many challenges. Most of challenges have been examined on the national level in the previous literature. By examining ballot access laws and campaign finance regulations in all 50 U.S. states, this thesis argues that differences in the restriction to ballot access and campaign finance laws account for some of the variation in the number of new minor party candidates who run for governor in each state as well as the percentage of the vote they receive. Using a coding for ballot access laws and campaign finance stringency, as well as several control variables, this thesis finds that both ballot access laws and campaign finance regulations play a role in determining the number of new minor political party candidates who appear on the ballot for governor across the states. At the same time, however, the analysis finds no support that either variable has any impact on the percentage of the vote cast for all new minor party candidates.

Despite the nation's founding commitment to participatory democracy, many barriers to candidate and public participation in the electoral process are damaging the public's confidence that our elections are fair and open to full participation by candidates and voters. The nominating processes created by the two major parties mainly serve the goals of party "insiders" and the more politically extreme factions, at the expense of competition and public confidence in the two-party system. At the same time, barriers to minor party and independent candidates-closed primaries, excessive early-voter registration requirements and complicated state primary and general ballot access requirements-operate to foreclose the possibility of a meaningful multiparty system. This Article will evaluate these and other legal and political barriers, and discuss the cost that such practices impose upon the nation's civic life.

235 THE UNITED STATES SUPREME COURT has issued 12 opinions concerning the constitutionality of state election laws that control ballot access for minor parties and independent candidates. One of the most influential of these decisions has been Jenness v Fortson.1 Jenness upheld Georgia’s ballot access laws. In the 30 years since it was issued, the U.S. Supreme Court has quoted Jenness approvingly in nine subsequent ballot access opinions. Minor parties and independent candidates have lost many constitutional lawsuits in lower courts in the last 30 years; when they do lose, almost invariably, Jenness is cited. There are at least 126 constitutional cases which minor parties and independent candidates have lost in lower courts, which cited Jenness.2 State legislatures have toughened ballot access laws in almost half the states since Jenness appeared, confident that the new restrictions would not be overturned in court. Jenness is the reason that lawsuits filed by minor parties and independent candidates, against laws that keep them off ballots, do not usually succeed. Minor party and independent candidates in the United States do have a problem with overly severe ballot access laws. In November 2000, no presidential candidate except the Republican and Democratic nominees appeared on the ballots of all states. The candidate who placed third, Ralph Nader, failed to appear on the ballot in seven states. Voters who wished to vote for Nader were forced to cast a writein vote in Georgia, Idaho, Indiana and Wyoming; and in North Carolina, Oklahoma, and South Dakota, those voters were even barred from casting a write-in vote for him. Nader voters in those states were not treated equally, relative to voters who wished to vote for George W. Bush and Al Gore. And even when minor party or independent presidential candidates do manage to qualify for the ballot in all states, they are always required to spend hundreds of thousands, or millions, of dollars, doing so. This situation, which is harmful to many voters, exists because of Jenness v Fortson. Paradoxically, despite the impact Jenness v Fortson has had on policy, it is an unusually flawed opinion. Some of its “facts” are incorrect. Many other facts, germane to the decision, which were mentioned in the briefs or in the oral argument, are absent from the opinion. All six of the conclusions that the Court drew about Georgia’s ballot access laws, and about ballot access laws in general, were either based on factual error, or ignored important factual evidence. Jenness has been criticized elsewhere.3

How do electoral institutions affect primary competition and legislative behavior? This paper examines the understudied electoral rule known as ballot access laws, advancing the novel theory that denying ballot access to minor candidates forces these outsiders into major parties. I find that in American states that adopt high ballot access thresholds experience higher rates of ideological heterogeneity and primary competition, and those that reduce their thresholds experience a reduction in heterogeneity and competition. Using an original dataset on state-level changes to ballot access thresholds from 1990 to 2018, I find that an increase in the number and types of primary competition leads to an increase in heterogeneity within both party caucuses. This paper adds to the literature on legislative behavior and electoral institutions, demonstrating institutions' role in shaping electoral competition and the ideology of those represented in office.

This analysis focuses on public policies that affect primary HIV prevention and access to HIV care for Mexican migrants residing in California. Policy or structural level interventions, as opposed to behavioral or psychologic interventions, help to shape the environment in which people live. We use a conceptual model for policy analysis in public health to understand better the challenges faced by Mexican migrants. We assess potential policy level interventions that may serve as barriers to or facilitators of primary HIV prevention and care for Mexican migrants. Among potential barriers, we discuss restrictions on public health services based on legal immigration status, limits placed on affirmative action in education, and laws limiting travel and immigration. Under potential facilitators, we discuss community and migrant health centers, language access laws, and the use of community-based groups to provide prevention and treatment outreach. We also report on the limited research evaluating the implications of these public policies and ways to organize for more responsive public policies.

The research tests the effects of egalitarian ballot access on the electoral fortunes of non-major party candidates for U.S. House seats. In 1998, Florida voters passed an amendment to the state constitution that removed all auxiliary barriers to ballot access for non-major parties. In bivariate and multiple regression testing, the reform is associated with a statistically significant increase in the number of non-major party candidates and their vote-share. The change, however, is small. Moreover, these increased contestation rates and vote support occur primarily in the first election cycle after the reform was adopted. Output from Tobit and GLS regression suggests that the best case scenario is about a 1.3 percent increase in the non-major party vote share in U.S. House races in Florida. The study concludes that states’ pursuit of egalitarian ballot access laws will not likely create substantive expansion of minor-party electoral success.

We revisit the effect of ballot access laws on voter confidence in the outcome of elections. Previous research found weak or no relationship between voter confidence and election laws regulating ballot access. We argue this non-finding is conditioned by partisanship. Democrats and Republicans view election laws through a partisan lens, which is especially triggered when coalitions lose. Republican voters see ballot restrictions as a means of securing the vote against fraud; Democratic voters see ballot restrictions as voter suppression. We maintain that the conditional partisan effect that election laws have on voter confidence is triggered or attenuated when partisans’ candidates lose elections. We find that in states where ballot access is costly, voter confidence among partisans and supporters of the losing Presidential candidate is significantly higher for Republicans and significantly lower for Democrats than their counterparts in states with less costly ballot access laws. These effects are greater for Republican than Democrats. We discuss the implications of our findings on election ecosystems and voter confidence.

This article is a case study of the ballot qualification challenge brought by the Pennsylvania Democratic Party against Carl Romanelli, the Green Party Candidate for U.S. Senate in 2006. The study argues that the state's legal process for challenging signatures on ballot access petitions imposes a greater burden on independent and minor party candidates than the letter of the law suggests; that Pennsylvania signature challenge process is motivated more by partisan political considerations than by a genuine public interest in preventing signature fraud. The study concludes that Romanelli may have qualified for a place on the ballot had the standard applied to him been that suggested by the ballot access law without the various criteria for disqualifying signatures added by his partisan opposition, legal precendents, the court-ordered review process, and the states database of registered voters.

Measuring the effect of ballot access restrictions on electoral competition is complicated because the stringency of ballot access regulations cannot be treated as being exogenous to candidates' entry decisions. This paper exploits the 1968 U.S. Supreme Court decision to struck down Ohio's ballot access laws as a natural experiment to overcome the endogeneity problem. The evidence from difference-in-difference estimations suggests that the court decision and the accompanying sharp decrease in Ohio's petition requirements resulted in major parties facing a significant increase in competition from third party and independent candidates.

Securing a line on the ballot: Measuring and explaining the restrictiveness of ballot access laws for non-major party candidates in the United States

Ballot access laws attempt to limit the number and type of candidates who qualify to have their name appear on official ballots. A study was conducted of the relationship between the difficulty of access requirements and the number of congressional candidates from 1968 through 1976. Incumbency and electoral margin also were used as predictor variables. Ballot access requirements helped to explain the number of candidates running in House elections but not for the Senate contests. Incumbency and electoral competition variables were found to influence candidate competition for both houses in the primary but only for the House in general elections. Although the ballot access requirements have some effect on the opportunities for candidacy, the political factors have an independent effect which may be more important than the formal requirements in some circumstances.

Party and legal scholars often argue that ballot access requirements and other state-level election laws are primary reasons that third-parties have declined in importance in the United States. According to this argument, as ballot access laws got more difficult over the twentieth century, fewer minor parties were able to run, and those that overcame these onerous restrictions had few resources left to run effective campaigns. We traced the ballot access laws of each state from the enactment of the Australian ballot to the present and analyzed their impact on elections to the House of Representatives from 1890 to 2010. We found that while these laws got more difficult over the twentieth century, they had little impact on the electoral fortunes of third-parties. We conclude that these state election laws did not cause the dramatic decline of third-parties over the past 100 years.

Measuring the effect of ballot access restrictions on electoral competition is complicated because the stringency of ballot access regulations cannot be treated as being exogenous to candidates’ entry decisions. This paper exploits the 1968 U.S. Supreme Court decision to strike down Ohio’s ballot access law as a natural experiment to overcome the endogeneity problem. The evidence from difference-in-difference estimations suggests that the court’s decision and the accompanying sharp decrease in Ohio’s petition requirements resulted in major parties facing a significant increase in competition from third party and independent candidates.

Over the past decade, mainstream election law scholarship has been based largely on a simple but forceful set of analogies: are like markets, parties are like competing firms and voters are like consumers that decide at election-time which party's public policies they would like to buy. Proponents of this theory have been criticized for taking the analogy between and too far and for relying too heavily on one method - electoral competition - to solve all the problems of American democracy. However, the true problems of the politics as markets theory lie at the inverse of these criticisms. Our understanding of can explain a great deal about electoral behavior, but scholars have failed to apply the lessons of economic theory to the central fact of American politics: the existence of a two-party system. Economists have developed a long literature explaining how to regulate that, as a result of extreme economies of scale, trend toward having only a few participants (known as the problem of natural monopoly). These ideas - which permit a natural monopolist (or, in the case of elections, a natural duopoly) to become entrenched but regulate its pricing behavior, and deregulate downstream that are not naturally monopolistic - should be the basis for any analysis of American elections based on a market metaphor. Moreover, competition is not too narrow a concept on which to base the regulation of elections, but rather too broad. There are a number of conflicting normative justifications for using competition as a guide for electoral regulation, each of which suggests different policy outcomes. Specifically, electoral competition can promote the ends of representative government or decisive electoral results, but policies that enhance one of these often harm the other. Rather than assume away the benefits of either representation or decisive outcomes, as much of politics as markets scholarship does, judges should balance these ends when determining the constitutionality of state regulation of electoral competition. The Supreme Court has created one line of cases that does not suffer from these flaws. Its holdings in primary ballot access cases like Timmons v. Twin Cities Area New Party, California Democratic Party v. Jones and Clingman v. Beaver, much pilloried by politics as markets scholars, are in fact consistent with the application of economic theory to electoral and feature a balanced approach to the conflicting normative justifications for favoring competition. This paper stands as a defense of the Court's approach to resolving the constitutional law of primary ballot access as a matter of economic theory and competitive democratic theory.

Part 1 Introduction and Historical Background Chapter 2 Remembering Florida for the Right Reasons Chapter 3 History as Hope: The Legacy of the Progressive Era and the Future of Political Reform in America Part 4 Eliminating Barriers to Political Participation: Tearing Down Walls Chapter 5 The Weight of History: Election Reform During the Progressive Era and Today Chapter 6 More Choice Please! Why U. S. Ballot Access Laws are Discriminatory and How Independent Parties and Candidates Challenge Them Chapter 7 Freeing Politics from the Grip of Money: The Limits of Campaign Finance Reform and the Need for a New Approach Part 8 Engaging Citizens: Building Citizens Chapter 9 Democratic Theory and the Case for Public Deliberation Chapter 10 Educating for Democracy Chapter 11 Community as a Source for Democratic Politics Chapter 12 Can the Internet Rescue Democracy? Toward an On-line Commons Part 13 Making the System More Responsive Chapter 14 Instant Runoff Voting and Full Representation: Keys to Fulfilling Democracy's Promise Chapter 15 Putting Democracy Back into the Initiative and Referendum Chapter 16 The Debate Gerrymander and America's Electoral-Industrial Complex Chapter 17 The Electoral College: Constitutional Debate, Partisan Manipulation, and Reform Possibilities Part 18 Challenges and Prospects for Democratic Reform Chapter 19 What Makes Reform So Difficult: The Case of America's Cities and the Problem of Elites Chapter 20 Looking Backward While Looking Forward to Democracy's Moment Chapter 21 Appendix: National and Regional Democracy Organizations