arrowSection 2.2 - Getting on the Ballot

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

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What Must Third-Party Presidential Candidates Do to Appear on the Ballot in Ohio?

Introduction

For the November 2, 2004 election, Ralph Nader can run as an independent candidate in Ohio by simply meeting the statutory requirements, namely collecting 5000 signatures by August 19, 2004. But Ralph Nader can only run as a party candidate in Ohio, if a political party that chooses Nader as its nominee becomes legally recognized by the state.   Ohio currently recognizes only two political parties--Democratic and Republican. 1  A political party can gain recognition in Ohio law in two ways, either by earning 5% of the vote in a previous election or by meeting certain new party requirements.   Once recognized a political party can choose a candidate, and only then can the candidate appear on the election ballot with the party's name listed under the candidate's name.

Analysis

A candidate cannot be acknowledged as a representative of a political party not recognized in Ohio.

In Ohio, for a candidate to be listed on the ballot as a representative of a particular political party, the political party must be recognized by the state. The Ohio Revised Code allows for candidates to have "voting cues," which are descriptions of political affiliation, to be listed on the ballot under the names of candidates, if but only if their political parties are recognized under Ohio law. 2  A political party can gain recognition under Ohio law in two ways. First, a political party is recognized if, at the most recent regular state election, the party polled for its candidate for governor or nominees for presidential electors at least 5% of the entire votes cast for that office. 3  Secondly, a political party can gain recognition by filing a petition signed by a significant number of registered voters: the statute requires a number equal to at least one percent of the total vote for governor or nominees for presidential electors at the most recent election. 4  In 2004, this one percent requirement amounts to 32,290 signatures (one percent of the total votes cast at the gubernatorial election in 2002). 5 

In addition to filing the petition, a political party must file a perfunctory form declaring their intention to organize a political party, and the form must state the political party's name. Finally, the party must certify its presidential candidate--Ohio law distinguishes the certification of partisan candidates for the offices of president and vice-president of the United States from the nomination of partisan candidates for all other public elective offices. 6  For president and vice-president, there are three methods by which candidates can be placed on Ohio's presidential ballot; (1) by certification after a primary election and nominating convention; (2) certification after a nominating convention (no primary election); (3) certification by an authorized official of a minor political party (no nominating convention or primary election). 7  A major political party must participate in the first method, that is, major political parties must participate in the primary election and hold a nominating convention. 8  If a party meets these requirements, it may place its candidates on the ballot with a "voting cue" as the designated candidate of the officially recognized party. Otherwise, the candidate must appear on the ballot without the party designation.

For the November 2004 election, a political party must have gained legal status by October 31, 2003 in order to be able to hold a primary on March 2, 2004 to nominate party candidates for offices elected in the November general election. 9  Further, partisan candidates participating in the primary election were required to file declarations of candidacy by January 2, 2004 at 4:00pm (which is 60 days before the primary). 10  Because these important dates have passed, and because the Democratic and Republican parties (the major parties currently recognized in Ohio) participated in the state primary election, these parties will have the opportunity to nominate certain candidates at their national conventions during the summer of 2004. Therefore, these two chosen presidential candidates will appear on the Ohio election ballot in November with political party designations listed under their names.

Though the statutes are not entirely clear, it appears that if a new or minor political party chooses not to participate in the primary election, then the party can file for legal recognition up until 60 days before the general election and still have their party candidate placed on the ballot with designation (in 2004, that date is September 3). Sixty days before the election is the deadline for all candidates who desire to appear on the ballot in the general election to be certified. 11  Therefore, a new or minor political party must file the requisite papers in time for their candidate to be certified to appear on the ballot.

A candidate will unlikely be successful in challenging Ohio's political party recognition requirements.

While it is possible to challenge political party recognition requirements, attempts will not be successful in the state of Ohio because courts have already upheld Ohio laws. To determine the constitutionality of an election law a balancing test is used, weighing the asserted injury to individual rights protected by the First and Fourteenth Amendments against the state's interests in enforcing the candidate requirements. 12  The Supreme Court has recognized the nature of political parties as entirely different than the nature of independent candidates, as political parties contemplate a statewide, ongoing organization with distinctive political character, and thus states are permitted to have more regulations regarding political parties. 13  Also, the Supreme Court has declared that states have valid interests 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. 14  The U.S Court of Appeals for the Sixth Circuit held in 2001 in Schrader v. Blackwell that the burden placed on political parties to become recognized under Ohio law before a member can appear on the general election ballot as a candidate of that party is not unreasonable given Ohio's legitimate interests in avoiding confusion, deception, and frustration of the democratic process. 15  Because the Sixth Circuit correctly used the balancing test declared by the Supreme Court, the Supreme Court is unlikely to disagree with the Sixth Circuit holding. 16 

As mentioned, Ralph Nader, running as an independent, can appear on the ballot by meeting the requirements for an independent presidential candidate. However, because the Reform Party has endorsed Nader as the party candidate, should the Reform Party file the requisite papers in time (by September 3, 2004, sixty days before the general election), Nader could appear as a Reform Party candidate. Unless the Reform Party becomes recognized, Nader cannot receive its designation under his name. In 2002, the United States Court of Appeals for the Sixth Circuit found for the state of Ohio against Nader's challenge that Ohio prohibiting his designation of Green Party (an unrecognized political party) candidate in the 2000 election was unconstitutional. 17  The case was controlled by the abovementioned 2001 case, Schrader v. Blackwell , which held that the Ohio statute that denies party labels on the general election ballot to candidates of unqualified political parties is not unconstitutional. 18

Notes

1. Email from Robin Fields, Ohio Secretary of State Office, to Amber Gosnell (May 25, 2004, 10:15 EST) (on file with author).

2. Ohio Rev. Code § 3505.03

3. Ohio Rev. Code § 3517.01

4. Ohio Rev. Code § 3517.01

5. Email from Gretchen A. Quinn, Assistant Elections Counsel, Office of the Ohio Secretary of State to Amber Gosnell, Law Student, Moritz College of Law (June 23, 2004, 10:00 EST) (on file with student).

6. Email from Gretchen A. Quinn, Assistant Elections Counsel, Office of the Ohio Secretary of State to Amber Gosnell, Law Student, Moritz College of Law (June 4, 2004, 17:30 EST) (on file with student).

7. Ohio Rev. Code § 350510(B)

8. See Ohio Rev. Code §§ 3501.01, 3513.12, 3513.121

9. Ohio Rev. Code § 3517.01

10. Ohio Rev. Code § 3513.05

11. Ohio Rev. Code § 3503.01

12. Anderson at 789.

13. See Storer v. Brown, 415 U.S. 724, 745 (1974).

14. Timmons v. Twin Cities Area New Party , 520 U.S. 351, 366 (1997).

15. Schrader v. Blackwell, 241 F.3d 783, 791 (6th Cir. 2001).

16. Schrader v. Blackwell, 241 F.3d 783, 787 (6th Cir. 2001).

17. Nader v. Blackwell, 25 Fed Appx. 411 (Ohio 2002).

18. Nader v. Blackwell, 25 Fed Appx. 411 (Ohio 2002).