The Supreme Court and the Burial of Ballot Access: A Critical Review of Jenness v. Fortson

Abstract

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