This topic is monitored by Moritz Law Professor Edward B. Foley
The Constitutional Law of Filing Deadlines after Anderson v. Celebrezze
With the presidential election quickly approaching, and President Bush and John Kerry waging political war against one another, many Americans are curious to see who else will be a contender in the national race to the White House. The most anticipated independent candidate, Ralph Nader, will be subjected to different election rules in many of the 50 states, and he will have many hurdles to clear to earn his right to appear on the ballot. Some of these hurdles raise questions of First and Fourteenth Amendment rights, as well as questions of basic fairness and democracy. One of the biggest hurdles for Nader and other independent and third party candidates will be filing deadlines, as some states make ballot access far more difficult for such candidates. The constitutionality of filing deadlines is most governed by the landmark case Anderson v. Celebrezze. 1
Anderson v. Celebrezze
In 1983, by a 5-4 vote, the U.S. Supreme Court held that Ohio's early filing deadline for independent presidential candidates, which was 75 days before the primary election, placed an unconstitutional burden on the voting and associational rights of independent candidates. The case, Anderson v. Celebrezze, involved the 1980 presidential election, where John Anderson, after withdrawing from the race for the Republican Party nomination as a more liberal alternative to Ronald Reagan's candidacy, then entered the general election against both Reagan and the incumbent Jimmy Carter. President Carter had been seriously weakened in his bid for reelection by both the Iranian hostage crisis and domestic economic woes. Anderson, who was a Republican member of the House of Representatives from Illinois (1961-1981) presented himself as a mainstream alternative to both the vulnerable Carter and the conservative insurgency of Reagan's campaign. 2 Although obviously unsuccessful in winning the White House, Anderson proved to be a credible independent candidate, receiving 5.9 % of the popular vote in Ohio, and 6.6% of the vote nationally. 3
The legal issue before the Supreme Court in Anderson was whether Ohio's early filing deadline violated rights of political association protected by the First Amendment of the U.S. Constitution. The 5-justice majority opinion, written by Justice Stevens (and joined by Justices Burger, Brennan, Marshall, and Blackmun), ruled that it did. The majority reasoned that while "as a practical matter there must be substantial regulation of elections if they are to be fair and honest," a state's interests in regulation must be balanced against a candidate's First and Fourteenth Amendment rights. 4 The Court concluded that the "March deadline place[d] a particular burden on [...] Ohio's independent-minded voters," and a "burden that falls unequally [...] impinges, by its very nature, on associational choices protected by the First Amendment." 5 Further, the Court noted that "in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest," and that Ohio's deadline not only "burden[ed] the associational rights of independent voters and candidates," but "place[d] a significant state-imposed restriction on a nationwide electoral process." 6
Ohio's interests in voter education, equal treatment, and political stability were not enough to warrant the burdening of voters and candidates' First and Fourteenth Amendment rights, as the deadline was not necessary to further any of these interests. With respect to voter education, the Court concluded that "in the modern world it is somewhat unrealistic to suggest that it takes more than seven months to inform the electorate about the qualifications of a particular candidate simply because he lacks a partisan label." 7 Further, though Ohio claimed that maintaining the same date for all candidates who wanted to participate in the primary and all independent candidates resulted in equal treatment of candidates, the Court found that "neither the administrative justification nor the benefit of an early filing deadline is applicable to an independent candidate." 8 And finally, the Court distinguished between discouraging political party splintering and offending the rights of candidates and voters. According to the Court, "the early filing deadline is not precisely drawn to protect the parties from "intraparty feuding," but simply "discriminate[s] against independents." 9
The majority opinion provoked a strongly worded dissent, written by Justice Rehnquist (3 years before becoming Chief Justice) and joined by Justices White, Powell, and O'Connor. The dissent contended that the Constitution does not require a state to allow any particular presidential candidate to be on its ballot, and therefore so long as a state's ballot access laws are rational and allow nonparty candidates reasonable access to the general election ballot, the Court should not interfere. The dissent argued the Court's conclusions regarding the substantial negative impact on independent candidates and voters were unsupported by the record; for example, "Anderson makes no claim, and thus has offered no evidence to show, that the early filing deadline impeded his 'signature-gathering efforts.'" 10 The dissent observed that all "the Ohio deadline prevents is a candidate such as Anderson from seeking a party nomination and then, finding that he is rejected by the party, bolting from the party to form an independent candidacy." 11 The dissent argued that the proper test is for the Court to ensure that the State does not "freez[e] the status quo, [and] then the State's laws will be upheld if they are 'tied to a particularized legitimate purpose and [are] in no sense invidious or arbitrary.'" 12 According to the dissent: "the Ohio filing deadline easily meets the test." 13
It would be difficult to determine with confidence how the First Amendment issue in Anderson would be decided by the current Supreme Court, were this question to have been presented for the first time today, rather than twenty years ago. With Justice O'Connor joining Justice Rehnquist's dissent in Anderson , and Justices Scalia and Thomas likely to be skeptical of this kind of constitutional claim, the majority's position presumably would not be more secure now than then. Nevertheless, Justice Stevens likely could count on the support of his current colleagues Justices Souter, Ginsburg, and Breyer, and thus the "swing vote" in a contemporary version of the case would be Justice Kennedy.
In any event, the issue is not new today. Anderson is precedent, and the current Court respects it as such. It has been cited favorably by the Court in a wide variety of subsequent decisions involving election law issues, although none concerning the precise question of a filing deadline for getting on the ballot. For example, in Tashjian v. Republican Party of Connecticut, a political party challenged the eligibility of a Connecticut statute that required voters in any party primary to be registered members of that party. 14 The Supreme Court relied on the balancing test put forth in Anderson to determine that the burdens placed on the First Amendment rights of the political party were greater than the interests advanced by the State (for example, added cost). 15 In Burdick v. Takushi , the Court invoked the Anderson balancing test in finding that interests claimed by the state of Hawaii were sufficient to outweigh a burden placed on voters by Hawaii's ban on write-in voting. 16 Finally, in Timmons v. Twin Cities Area New Party, a Supreme Court case challenging the constitutionality of a Minnesota law that prohibited candidates from appearing on the ballot as the nominee of more than one political party, the Court specifically cited state interests confirmed by Anderson to be legitimate: "The State surely has a valid interest in making sure that minor and third parties who are granted access to the ballot are bona fide and actually supported, on their own merits, by those who have provided the statutorily required petition or ballot support." 17
In sum, Anderson is good law and can be taken as an accurate description of the current Supreme Court's approach to evaluating the constitutionality of filing deadlines. In the absence of any further Supreme Court decisions directly on point, however, it is necessary to examine lower court cases involving challenges to filing deadlines.
Since Anderson in 1983, courts across the country have varied in applying the decision. In different court decisions, several filing deadlines have been upheld, each claiming to be in accord with Anderson. From the cases, it seems reasonable that a filing deadline within 60-90 days of the general election will be routinely upheld. The court in LaRouche v. Monson, a United States District Court case that upheld a Utah filing deadline for independent presidential candidates of less than 60 days before the general election, best summarized the reasoning:
"The Supreme Court in Anderson noted that 'seventy-five days appears to be a reasonable time for processing the ballot.' If seventy-five days is reasonable, then fewer than sixty days also is reasonable and clearly serves the state's legitimate interests." 18 After all, a state is entitled to enough time to process nominating papers, as well as print and distribute the ballots in time for the election. 19
Along the same lines, in Dr. John Hagelin for President Committee of Kansas v. Graves, the United States Court of Appeals for the Tenth Circuit found that a deadline for presidential nominating petitions falling 91 days before the general election was permissible. 20 Dr. John Hagelin was a presidential candidate with the Natural Law Party in 1992 who missed the Kansas deadline for independent candidates to file nominating petitions (the deadline was the Monday before the primary election, which turned out to be 91 days before the general election). 21 Dr. Hagelin and other Natural Law Party candidates and one voter challenged the Kansas deadline, asserting that Kansas' ballot access laws unfairly discriminated against independent candidates by requiring them to submit their nomination petitions 91 days before the general election, while the Republican and Democratic parties can place their presidential candidates on the ballot at any time after such candidates are designated. Again, the court applied the Anderson balancing test, and found that the states' interests justified the burden placed on candidates' First and Fourteenth Amendment rights. 22 Though Kansas' deadline had the effect of falling earlier than one major political party's national convention, the court held that this did not impose a substantial burden on voting and associational rights. 23 After all, even if the deadline for independents does fall before a major party's convention, a "nonparty candidate need only obtain the necessary number of signatures and file a petition in early August for his or her name to appear on the ballot," 24 while major political party candidates not only have to file before the primary election, the candidates must "survive a primary and a national convention for their names to appear on the ballot." 25
Other cases, however have upheld deadlines that raise questions regarding their faithfulness to Anderson. In Wood v. Meadows, for example, a United States Court of Appeals decision for the Fourth Circuit, the unanimous court held, in an opinion written by Judge Diana Gribbon Motz, that a Virginia filing deadline for independent candidates for the United States Senate of 150 days before the general election was constitutional. 26 The court distinguished Wood from Anderson , noting the differences between state/local and nationwide elections: "a state has a less important interest in regulating Presidential elections than statewide or local elections." 27 The court argued that state laws, like the law at issue in Wood, "that require independent candidates to file their certificates of candidacy and petitions on the day the major political parties hold their primary elections, and sixty days after the major party candidates have filed their certificates and petitions, do not raise the same concerns as the statutes at issue in Anderson, " and instead "such schemes place independent and major party candidates in roughly comparable positions." 28 Interestingly, though the state cited such interests as administrative convenience to support the filing deadline, the court did not address the Supreme Court's finding in Anderson that 75 days was enough time to process nominating petitions.
In another case challenging state/local filing deadlines, a United States Court of Appeals of the Seventh Circuit upheld a deadline of 323 days before the general election, adopting the District Court opinion as its own. 29 In Stevenson v. State Board of Elections, a gubernatorial Democratic candidate who clashed with his party's choice for lieutenant governor resigned from the ticket (after winning the nomination in the primary election) and tried to run instead as an independent candidate. 30 The candidate, Adlai Stevenson, was unable to do so because the filing deadline had passed. 31 The court explained that Stevenson differed from Anderson in two important respects. First, in Stevenson the election at issue was a state election, not a national election, and therefore Illinois had a greater interest in regulating the election, and the court did not have to be concerned with the general pattern of filing deadlines across the nation. 32 Secondly, unlike the Ohio election scheme in Anderson, the court in Stevenson addressed the Illinois election laws which permit new political party candidates to file between 92 and 99 days prior to the general election. 33 "Because the prospective candidates before [the] Court have existing ballot access measures available to them, the magnitude of their injury is to be reflected only in the difference between being able to run as an independent on the one hand, and running as a new political party candidate on the other." 34 The court further noted that independent candidates and new party candidates are dissimilar and do not represent interchangeable rights, for example, an independent candidate can campaign alone and does not need to create an entire party platform. 35 According to the court: "The Court follows Anderson v. Cellebrezze -- not as to its decision in the election in Ohio -- but as to its teachings on how to measure the competing state interests of the state in maintaining a fair and democratic election procedure, and the constitutional rights of voters and candidates alike to freedom of association under the First Amendment, and Equal Protection of the laws under the Fourteenth Amendment." 36 However, one could argue the Stevenson decision is contrary to the spirit of Anderson. Though the Illinois Court followed the test prescribed in Anderson, and though Stevenson was a unique situation addressing a candidate who won the party nomination and then chose to run instead as an independent, the question still arises as to why a true independent must file as early as between 92 and 99 days prior to the date of the primary elections. Thus, the decision in Stevenson is perhaps best explained as turning on an attribute about the candidate, rather than the timing of the deadline. Indeed, Judge Easterbrook wrote a concurrence to that effect.
The decision that seems most out of step with Anderson is Browne v. Bayless. There, the Arizona Supreme Court held that a filing deadline for independent presidential candidates of June 14 for the 2000 election was permissible. Bayless, the Arizona Secretary of State, refused to accept Harry Browne's nominating petition to appear on the November ballot as an independent candidate for president of the United States because the petition was filed two months after the statutory deadline. 37 The court unanimously ruled that the Arizona deadline is constitutional where the Anderson deadline was not, because Arizona's deadline is 83 days closer to the general election than the Ohio deadline struck down in Anderson. 38 Also, Arizona's early ballot law, which requires that ballots be available for mailing to voters 33 days prior to the general election, makes the effective period between the filing deadline and the election only 113 days. 39 Further, the Arizona Supreme Court reasoned that because "the national political process has evolved toward a system of ever-earlier presidential primary elections with the result that, by the middle of June in an election year, the identities and positions of the major party candidates have largely been determined," 40 the concern in Anderson that independent voters would not have sufficient time to coalesce into viable groups is largely eliminated. 41 Lastly, the decision highlights the administrative reasons that the Secretary of State advances in support of the June deadline, and argues that because the deadline does not impose a severe burden on the rights of independent voters, the court is not required to apply a heightened degree of scrutiny. 42 Though the court recognizes the 75 days noted in Anderson as usually sufficient for administrative purposes, the Arizona court nonetheless considered the June deadline constitutionally permissible. 43
Again, this decision appears contrary to the spirit of Anderson. It is not obvious why an independent candidate should be obligated to file in June, when the major parties do not hold their nominating convention until July or August. Nor is it always true, as the Arizona Supreme Court declared, that the major party candidates are settled during the primary process, long before the conventions are held. The possibility of a floor fight at a convention still exists, even if one has not occurred in recent elections. In addition, the presidential candidates of the two major parties do not choose their running mates until the eve of their respective conventions, and an independent ticket for President and Vice-President might wish to enter the race in part because of opposition to vice-presidential selections while the major parties. When a state is able to operate its electoral process efficiently by giving independents until August to declare their candidacies, it is unclear under Anderson why the state would be entitled to justify the burden of the earlier June deadline.
In summary, Anderson provided lower courts with a balancing test to apply, as well as an example of an appropriate deadline. While cases that uphold filing deadlines anywhere from 60 to 90 days before the general election seem close enough to Anderson, 44 other cases seem in tension with that ruling. Thus far, however, the Supreme Court has not revisited this area of law. Until the Supreme Court articulates exactly which deadline dates are acceptable and why, candidates are left to the judgment of lower courts.
1. Anderson v. Celebrezze , 460 U.S. 780, 808 (1983).
2. Office of the Clerk, U.S. House of Representatives, at http://clerk.house.gov/histHigh/Special_Exhibits/index.html (last visited June 17, 2004).
3. Anderson, 460 U.S. at 784.
4. See id. at 788-89.
5. See id. at 792-93.
6. See id. at 794-95.
7. Id. at 797.
8. Id. at 800.
9. See id. at 804-05.
10. Id. at 809.
11. See id. at 814.
12. See id. at 817 quoting Rosario v. Rockefeller, 410 U.S. 752, 762 (1973).
13. Id. at 818.
14. Tashjian v. Republican Party of Connecticut, 470 U.S. 208 (1986).
15. See id. at 229.
16. Burdick v. Takushi, 504 U.S. 428 (1992).
17. Id. at 366.
18. LaRouche v. Monson, 599 F. Supp 621, 629 (1984).
19. See id.
20. Dr. John Hagelin for President Committee of Kansas v. Graves, 25 F.3d 956, 962 (10th Cir. 1994).
21. See id. at 957.
22. See id. at 959-62.
23. See id. at 960.
24. Id. at 960.
26. Wood v. Meadows, 207 F.3d 708, 709 (Va. 4th Cir. 2000).
27. See id. at 711.
28. Id. at 712.
29. Stevenson v. State Board of Elections, 638 794 F. Supp. 2d 1176, 1178 1176, 1178 (Ill. 1986).
30. See Stevenson v. State Board of Elections, 638 F. Supp. 547, 548 (N.D. Ill. 1986). id. at 1178.
32. See id.
33. See id.
34. Id. at 553.
35. See id. at 554.
36. Id. at 555.
37. See id.
38. Id. at 408.
39. See id.
40. Id. at 419.
42. See id. at 408-09.
43. See id. at 409.
44. See, e.g., LaRouche v. Monson, 599 F. Supp at 621.