arrowSection 2.2 - Getting on the Ballot

This topic is monitored by Moritz Law Professor Edward B. Foley

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What Must Independent Presidential Candidates Do to Appear on the Ballot in Ohio?

Introduction

Presidential hopeful Ralph Nader is seeking a place on the Ohio ballot for the election on November 2, 2004. What must he do to have his name placed on the ballot as a candidate? Briefly, Nader and any other independent candidate can appear on the ballot in Ohio by submitting to the Secretary of State a petition containing the signatures of 5000 registered voters by August 19, 2004. If a candidate wishes to appear on the ballot as a representative of a political party, but that party is not officially recognized by the state of Ohio, then the political party must first gain official recognition through a different set of procedures and requirements.

Analysis

The Ohio Revised Code specifies the basic procedure for getting on the ballot.

In order for a candidate to earn the right to appear on the general election ballot in November the candidate must meet the requirements outlined in the Ohio Revised Code. Persons desiring to become independent presidential and vice presidential candidates must submit a statement of candidacy, a joint nominating petition, and a slate of presidential electors by four p.m. of the seventy-fifth day before the day of the general election. 1  For the 2004 election, August 19 is the seventy-fifth day before the election.

First, the U.S. Constitution requires that presidential and vice presidential candidates file jointly. 2  Secondly, the statement of candidacy is a perfunctory form that candidates must complete and sign, which includes descriptive information such as voting residences, nominations sought, and election date. 3  Third and most significant, the nominating petition must be signed by at least 5000 registered voters, but may not include more than 15,000 signatures, and the signatures must be separated by county, where each paper contains signatures from only one county. 4  The petition requires: (1) signatures by qualified registered voters (regardless of political party affiliation); (2) addresses of the voters that correspond with their addresses on the voter registration cards; (3) genuine signatures; (4) legible signatures; (5) signatures in ink; and (6) the filing date. 5  The Ohio Revised Code and Ohio case law permit any candidate who seeks placement on the ballot without the designation of a specific political party to request, at the time of filing the nominating petition, to be designated as a "nonparty candidate," "other-party candidate," "independent," or without any designation. 6  (If a candidate requests the "other-party candidate" designation, this exact term will appear beneath the candidate's name on the ballot -- with no identification of the other party to which the candidate refers -- because the party itself is not filing a nominating petition on behalf of the candidate, a procedure that is available only when the party is officially recognized under Ohio Law. 7) A candidate who does not request a particular designation will be listed on the ballot with nothing written below the name. 8  Lastly, candidates must file a list of names of 20 electors who will represent them in the Electoral College, should the candidates win the general election. 9  If independent candidates collect sufficient signatures and submit the petition, the statement of candidacy, and the slate of presidential electors by the deadline, the candidates are automatically placed on the general election ballot.

Once the nominating petition is filed with the Secretary of State and the candidate has properly complied with the requirements of separating the signatures by county, the Secretary must give the petitions to the respective county board for verification. 10  The county board must have examined and determined the sufficiency of the signatures by the sixty-eighth day before the general election, which in the coming general election is August 26, 2004 (only seven days after the filing deadline). 11  All matters affecting the validity or invalidity of the nominating petitions are determined by the county election board with whom such petition papers were filed by the Secretary of State. 12  If a candidate objects to a disqualification by a board, such as if a board disqualifies enough signatures that the candidate's petition becomes insufficient, the candidate can raise the issue and request the board to reconsider. 13  Notably, there is no statutory or administrative procedure for protesting a decision to disqualify a candidate from the general election ballot, and the law is not entirely clear in this area. 14  However, the U.S. Court of Appeals for the Sixth Circuit has implied that a candidate is entitled to some form of process by a county board. 15  For information concerning procedures that potentially might be available, and issues that could arise, in the context of a dispute concerning disqualification of signatures, see here.

Independent candidates are unlikely to be successful in asserting Constitutional challenges regarding the requirements to appear on the ballot.

Although it is possible to prevail in a constitutional challenge to a state's ballot access rules when the signature requirement is excessive or the filing deadline is too early, no such challenge would be available with respect to Ohio's statutory requirements. The courts have made clear that signature requirements amounting to one percent of the electorate are permissible, and Ohio's requirement of 5000 is even less than that number, whether measured in terms of registered voters (over 7 million), voters in the 2000 general election (4,795,989), or the 2004 primary election (2,333,569). 16  Though courts have not articulated precisely when a filing deadline is so early as to be unacceptable, one established principle is that independent candidates not be required to file months earlier than partisan candidates. 17  According to the Supreme Court: "A burden that falls unequally on [...] independent candidates impinges, by its very nature, on associational choices protected by the First Amendment." 18  Independent candidates must be treated reasonably with respect to partisan candidates and rules and deadlines that hinder only independent candidates are judicially problematic. However, Ohio's deadline of 75 days before the general election is months after the January 2, 2004 deadline for partisan candidates to file their declarations of candidacy (January 2 was 60 days before the primary elections in Ohio, and Democratic and Republican nominee-hopefuls must participate in primary elections), and the Supreme Court found in Anderson v. Celebrezze that 75 days appears to be a reasonable time. 19  In approximately two-thirds of the States and the District of Columbia, filing deadlines for independent Presidential candidates occur in August or September, and the deadlines in a number of other States are in June or July. 20

Notes

1. Ohio Rev. Code § 3513.257

2. U.S. Const. amend. XII, Ohio Rev. Code §§ 3513.12, 3513.121.

3. Ohio Rev. Code § 3513.07

4. Ohio Rev. Code § 3513.257(A) and Ohio Rev. Code § 3513.261.

5. Ohio Rev. Code §§ 3501.11, 3501.38, 3515.261, 3515.262, 3513.363.

6. Ohio Rev. Code § 3513.257 and Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992).

7. Memo 2

8. Ohio Rev. Code § 3513.257

9. Ohio Rev. Code 3513.257

10. Ohio Rev. Code § 3513.263

11. Ohio Rev. Code § 3513.263

12. Ohio Rev. Code § 3513.263

13. See Miller v. Lorain County Board of Elections, 141 F.3d 252, 255 (6th Cir. 1998).

14. Miller v. Lorain County Board of Elections, 141 F.3d 252, 259 (6th Cir. 1998).

15. See Miller v. Lorain County Board of Elections, 141 F.3d 252, 260 (6th Cir. 1998).

16. http://www.sos.state.oh.us/sos (last visited May 20, 2004); Jenness v. Fortson, 403 U.S. 431, 438-39 (1971); Miller v. Lorain County Board of Elections, 141 F.3d 252 (6th Cir. 1998).

17. See Anderson v. Celebrezze, 460 U.S. 780 (1983).

18. Anderson v. Celebrezze, 460 U.S. 780, 793 (1983).

19. See Anderson v. Celebrezze, 460 U.S. 780, 800 (1983).

20. Anderson v. Celebrezze, 460 U.S. 780, 795 n.20 (1983).