This topic is monitored by Moritz Law Professor Edward B. Foley
Posner on Nader: An Analysis of the Seventh Circuit’s Recent Ruling
In a decision issued on September 22, 2004, the U.S. Court of Appeals for the Seventh Circuit rejected Ralph Nader’s claims that Illinois had violated his federal constitutional rights by enforcing state laws that denied him a spot on the state’s ballot as an independent presidential candidate. 1 The decision is an important one in part because it is authored by the influential Judge Richard Posner, and his analysis of the constitutional issues is thought-provoking in his usual way. Along with the Supreme Court precedents on which it relies, this new opinion is likely to be cited as authoritative in future ballot-access litigation, unless and until the Supreme Court takes up the issue again and moves the law in a different direction.
The case came to the Seventh Circuit as a result of Nader’s appeal of the district court’s denial of a preliminary injunction to place Ralph Nader’s name on the ballot for the November presidential election. Nader’s complaint was that the Illinois Election Code imposed an unreasonable burden on independent candidates and was therefore unconstitutional. 2 Relying on precedent from the Supreme Court, Judge Posner’s opinion found that first, several of Illinois’ rules were constitutional, and for the one questionable rule, the filing deadline, Nader was unsuccessful in presenting evidence to reward the extraordinary remedy of a preliminary injunction. 3
The Illinois rules governing ballot access for independent candidates were upheld by the United States Court of Appeals for the Seventh Circuit.
Ralph Nader challenged three Illinois rules that in combination, according to Nader, impose an unreasonable burden on his candidacy. 4 First, for any candidate who has not been nominated by a party that received at least five percent of the votes in the most recent statewide election, the Illinois Election Code requires the candidate to obtain nomination petitions signed by at least 25,000 qualified voters. 5 Second, the address on each petition must be the address at which the petitioner is registered to vote. 6 Third, the petitions must be submitted to the state board of elections at least 134 days before the election. 7 Related to this third requirement, and making it even more difficult, the Illinois Election Code requires that an independent candidate wait until the 90th day before the expiration of the deadline to begin circulating the actual petition forms for signature. Nader, however, did not specifically challenge this “must wait” provision.
Nader submitted 32,427 petitions on the June 21 deadline (June 21 is 134 days before the November 2 election), and more than 19,000 of these signatures were found to be invalid. 8 The principal reason for the invalidity of the signatures was that each disqualified petitioner was not registered to vote at the address listed on the petition. 9 Though after the deadline Nader collected another 7,000 signatures, these signatures were not considered by the election authorities because they were untimely. 10
In evaluating the merits of Nader’s constitutional challenge, Judge Posner began by discussing the need for barriers regarding independent candidates’ access to the ballot to protect the voting system, to prevent voter confusion, and indeed to protect serious third-party candidates from dilution as a result of additional frivolous candidates. 11 Regarding the problem of voter confusion, Posner cited the infamous “butterfly ballot” from the Florida fiasco in 2000, which occurred in part because of the need to list 10 presidential candidates on the ballot. In light of the need for barriers, Illinois, a state with seven million registered voters, has chosen a signature requirement of 25,000. 12 This number, according to the Seventh Circuit, cannot be found to be excessive, as the Supreme Court in Jenness v. Fortson had approved a much higher percentage requirement. 13 In Jenness, the Supreme Court upheld a Georgia law that required petitions from five percent of the registered voters, a requirement that if in effect in Illinois, would result in the requirement of 350,000 petitions. 14 In light of such precedent, 25,000 petitions is a reasonable requirement.
Further, states have a right to verify the signatures presented on candidate petitions, and the requirement of “correct address at which the petitioner is registered to vote” is an accessible way for states to identify petitions signatories. 15 If a requirement had the result of invalidating the majority of petitions erroneously, the requirement would be problematic. 16 According to the Seventh Circuit, to evaluate this problem a court should look at the total number of petitions that a candidate should submit to be reasonably confidant that the candidate will be placed on the ballot. 17 In the case at issue, almost one-third of Nader’s petitions were invalidated—so, Nader needed only to collect 37,500 petitions to allow for one-third to be invalidated and still remain over the required 25,000 petition requirement. 18 Judge Posner reasoned that, if 25,000 petitions is not a significant number, then neither is 40,000 (to provide for the margin of error), for 40,000 is only slightly more than one-half of one percent of the number of registered voters in Illinois. 19 This reasoning seems particularly novel, as the purpose of the address requirement (legitimacy of the signatures) seems different from the purpose of the number of signatures (demonstrated strength of support).
Finally, the court considered whether the June 21 deadline, falling four and a half months (134 days) before the November 2 election, was reasonable. The court noted that time must be allowed for all of the procedures that must occur between the petition deadline and the election: the verifying of the petitions, any candidate challenges to the invalidations (which are permitted in Illinois), and the printing of the ballots in time for the absentee ballots to be timely. 20 The court stated that restrictions on candidacy must be considered together rather than separately: Illinois requires a substantial number of petitions, makes challenges to the petitions fairly easy (since, according to Posner, discrepancy between the address on the petition and the address at which the voter is registered is likely to be common even without fraud 21), sets a tight deadline for submitting the qualifying number, and permits a candidate to challenge any petition invalidations. 22 While the court found that the four and a half months seemed “awfully long,” 23 the court held that Nader had not made a persuasive case for the extraordinary remedy of a preliminary injunction. 24 Importantly, Nader presented no evidence that would enable the court to prescribe a shorter period. 25 One-third of the 7,000 petitions Nader collected after the deadline might put Nader very close to the 25,000 requirement, but a meeting of this requirement is hardly certain based on only 7,000 additional petitions. Finally, the court felt that it was unlikely that the 134-day rule had a substantial effect on Nader’s inability to get on the ballot—after all, Nader declared his candidacy in February, was a well known candidate nationwide, and had run for President in Illinois in the 2000 election. 26 All in all, Judge Posner offered a quite creative set of reasons for sustaining the early deadlines, especially in light of the fact (as we shall now consider) that the Supreme Court had hinted that normally a state would need significantly less time to get ready for the general election.
The Court of Appeals for the Seventh Circuit decision reflects state ballot access requirements across the country.
While ballot access laws differ state to state, no state can stray too far from the average deadline, as any state that did so would have a difficult time justifying its uniquely burdensome rule (see Filing Deadline Chart for 22 Most Competitive States). In the landmark decision Anderson v. Celebrezze, the Supreme Court invalidated Ohio’s seventh month deadline as unnecessarily long, 27 and noted in dicta that the Ohio district court had found that 75 days should be enough time for Ohio’s administrative procedures that must be accomplished between the deadline and the election. 28 The Supreme Court also emphasized that states’ deadlines for qualifying candidates in a national election must be scrutinized with particular care because the deadlines have effects outside the states imposing them, namely, that state deadlines have effects on other states’ election results. 29 (see more information on the Anderson decision regarding filing deadlines) In light of Anderson, one might think Illinois’s 134-day deadline to be particularly problematic.
Nonetheless, the Seventh Circuit sustained the Illinois law—or at least upheld the denial of a preliminary injunction, which as a practical matter defeated Nader’s efforts to get on the ballot in Illinois this year. While the 134-day deadline is suspicious, in the present case, because Nader himself waited so long in challenging the deadline and could not provide sufficient proof that he would be able to collect enough valid signatures if the deadlines were pushed back, the Seventh Circuit found that Nader did not meet his burden of presenting a pressing reason to overturn the district court’s ruling on the preliminary injunction. Perhaps in a different case, this deadline could be challenged as unnecessarily long, as it is at least plausible that Illinois could accomplish its administrative procedures in a shorter window between the deadline and the election. Further, only Texas and Arizona have earlier deadlines, raising the issue of the Illinois deadline being out of synch with the majority of other states. The upshot here, however, is that an independent candidate must do a better job than Nader did of demonstrating a sympathetic case for judicial intervention in order to prevail in the Seventh Circuit.
1. Nader v. Keith, No. 04-3183, 2004 U.S. App. LEXIS 19804, at *20 (7th Cir. Sept. 22, 2004).
2. Nader, 2004 U.S. App. LEXIS 19804, at *5.
3. Nader, 2004 U.S. App. LEXIS 19804, at *16.
4. Nader, 2004 U.S. App. LEXIS 19804, at *5.
5. 10 ILL. COMP. STAT. 5/10-2, 5/10-3 (2004).
6. 10 ILL. COMP. STAT 5/3-1.2 (2004).
7. 10 ILL. COMP. STAT 5/10-6 (2004).
8. Nader, 2004 U.S. App. LEXIS 19804,at *3.
11. Nader, 2004 U.S. App. LEXIS 19804, at *7—8.
12. Nader, 2004 U.S. App. LEXIS 19804, at *9.
15. Nader, 2004 U.S. App. LEXIS 19804, at *10.
16. Nader, 2004 U.S. App. LEXIS 19804, at *11.
19. Nader, 2004 U.S. App. LEXIS 19804, at *12.
20. Nader, 2004 U.S. App. LEXIS 19804, at *12-15.
21. Nader, 2004 U.S. App. LEXIS 19804, at. *14.
22. Nader, 2004 U.S. App. LEXIS 19804, at *14-15,
23. Nader, 2004 U.S. App. LEXIS 19804, at *12.
24. Nader, 2004 U.S. App. LEXIS 19804, at *16.
25. Nader, 2004 U.S. App. LEXIS 19804, at *16.
26. Nader, 2004 U.S. App. LEXIS 19804, at *17.
27. See Anderson v. Celebrezze, 460 U.S. 780, 800 (1983).
28. See Anderson, 460 U.S. at 800 n. 28.
29. See Anderson, 460 U.S. at 794—795.