arrowSection 2.2 - Getting on the Ballot

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

Print Page

Annotated Bibliography

Abrams, Jennifer R. "The Supreme Court's Disenfranchisement of the American Electorate: Advocating the Application of Strict Scrutiny When   Reviewing State Ballot Access Laws And Political Gerrymandering." St. John's Journal of Legal Commentary 12 (1996): 145-169.

Abrams argues that two forms of Supreme Court sanctioned activities - limited ballot access and political gerrymandering - act to disenfranchise voters by severely limiting their choices. By not consistently reviewing judicial challenges to this legislative encroachment under strict scrutiny, the Supreme Court has done a disservice to the American voter. By employing strict scrutiny, the Court could shift the burden to state legislators to prove that there are better alternatives to protecting a republican form of government than disenfranchising voters.

Brown, Mark R. "Popularizing Ballot Access: The Front Door to Election Reform." Ohio State Law Journal 58 (1997): 1281-1324.

Brown studied United States House of Representatives elections for their richness of data in order to a get a sense of primary ballot access in general. He found that primary ballots were over-regulated in a way that not only was undemocratic and discouraged voter turnout but also tended to favor the reelection of incumbents. The barriers to the ballot should be lessened either by courts, the individual states, or, most efficiently, by Congress setting specific ceilings on the amount of money or signatures that a candidate needs to get on the ballot.  

Daybell, Donald E. "Guarding the Treehouse: Are States Qualified to Restrict Ballot Access in Federal Elections?" Boston University Law Review 80 (2000): 289-339.

Daybell notes that there are generally only two ways for parties to get their candidates on the ballot: a certain percentage of the votes in a prior election and petition signatures from eligible voters. Courts have generally upheld the states' rights to impose these sorts of mechanisms on potential candidates even though they are onerous to minority party candidates. Daybell suggests that forcing non-major party candidates to solicit public support in the form of signatures before being allowed on the ballot is tantamount to a state imposed 'public support' qualification that violates the constitutional Qualifications Clause.

Harvard Legislative Research Bureau. "A Model Act for Democratization of Ballot Access." Harvard Journal on Legislation 36 (1999): 451-478.

This proposed model act attempts to lessen barriers for non-major party candidates and broaden participation in the political process with both candidates and voters. The model act , among other things, does away with the 'payment of fee' of ballot access that preferences wealthy candidates, significantly lessens the numerical requirement for petition signatures and past election results, and provides for the inclusion of candidates who have met other access requirements but were not nominated by their party.  

Mandelker, Lawrence A. "Breaking Down the Barriers to Ballot Access: The 2000 New York Presidential Primary." Election Law Journal 1 (2002): 421-428.

Mandelker details the process by which John McCain attempted the daunting task of qualifying delegate slates in New York's 31 congressional districts, a job no Republican had done without the support of the state's Republican State Committee, which McCain lacked. With unique insight as the counsel to the Republican State Committee, Mandelker goes through the case from pre-litigation strategies to the final resolution.

Markin, Karen. "Media Recognition and Access to the Presidential Primary Ballot." Communications Law & Policy 4 (1999): 243-267.

Markin discusses the implications of statutes in many primary states that put on the ballot the names of people with no other qualifications than that they have been deemed by the press as contenders. Though these statutes have been upheld as constitutional, Markin posits that they are undemocratic in nature and undermine the role of the press as an objective watchdog. Markin argues for a repeal of these statutes.

Nazzarine, Scott Ryan.   "A Faceless Name in the Crowd: Freedom of Association, Equal Protection, and Discriminatory Ballot Access Laws." University of Cincinnati Law Review 72 (2003): 309-361.

Nazzarine delves into Ohio laws on ballot access by following the case of James Schrader, the Libertarian candidate for an Ohio House of Representatives seat, and his attempt to get on the ballot with the Libertarian Party 'cue' next to his name. Nazzarine concludes that §3505.03 of the Ohio Revised Code, which states that partisan cues are available only for those candidates who are nominated or certified by a 'qualified' political party, is inconsistent with the constitutional rights of association and equal protection.

Persily, Nathaniel. "Candidates v. Parties: The Constitutional Constraints On Primary Ballot Access Laws." Georgetown Law Journal 89 (2001): 2181-2225.

Persily addresses both the theory and practical application of the myriad laws that govern primary ballot access, concluding that abstract solutions to this problem are limited. From large constitutional questions to minute state definitions of a qualified party, the article approaches the subject historically and through the prism of the 2000 election where John McCain, Pat Buchanan, and Ralph Nader made notable primary ballot-inclusion attempts. Persily argues that, in distinguishing between the legitimate and illegitimate candidates, courts should pay closer attention to the primary balloting scheme within the greater context of election regulation.

Porto, Brian L. "The Constitution and the Ballot Box: Supreme Court Jurisprudence and Ballot Access for Independent Court Candidates." Brigham Young University Journal of Public Law 7 (1993): 281-318.

Porto gives a brief historical survey of both state laws concerning ballot access and important Supreme Court decisions on the subject. Porto divides the jurisprudence into 'easy' (cases involving excessively burdensome restrictions) and 'hard' (cases involving narrowly tailored restrictions) categories, finding that the Court has been more consistent than commentators have given it credit for within those two categories. 'Easy' cases are always decided in favor of the independent or outsider while 'hard' cases are decided in favor of the state or major party.

Potter, Trevor and   Marianne H. Viray. "Barriers to Participation." University of Michigan Journal of Law Reform 36 (2003): 547-583.

Recognizing that ballot restrictions are largely based on laws in the individual fifty states, Potter and Viray detail the various barriers to participation that exist in the United States. These barriers limit participation by major party candidates seeking to challenge incumbents as well minor party and independent candidates. Voter turnout in the United States, discouraged by the many existing barriers, is therefore among the lowest of democratic nations.

Smith, Bradley A. "Judicial Protection of Ballot Access Rights: Third Parties Need Not Apply." Harvard Journal on Legislation 28 (1991): 167-217.

Smith suggests that ballot access laws have gone unmolested by the Supreme Court because the Court fails to recognize the anti-democratic, real world burdens these laws have. While he believes that some ballot access restrictions should continue to exist, they ought to be shown to have more than the tenuous connection to state interests than is currently required. But the Court should be skeptical of the asserted state interests, applying strict scrutiny with a 'least drastic means' alternative.

Sullivan, Sean R. "A Term Limit By Any Other Name? The Constitutionality of State Enacted Ballot Access Restriction on Incumbent Members of Congress." University of Pittsburgh Law Review 56 (1995): 845-884.

Sullivan argues that state imposed ballot access laws that prohibit certain incumbents from being on the ballot - but not running for office - are not unconstitutional on either First or Fourteenth Amendment grounds. These 'quasi-term limits' do not run afoul of the Qualifications Clause - a traditional term limit sticking point with courts - because they do not prohibit certain incumbents from running but simply make them run as write-in candidates.

Stark, Leonard P. "You Gotta Be On it to be In it: State Ballot Access Laws and Presidential Primaries." George Mason Law Review 5 (1997): 137-191.

Stark comprehensively approaches the primary ballot access issue by first going over generally the ballot access laws nationwide and then specifically discussing the various Supreme Court rulings on the subject. He then deals with specificity the notable occurrences during the 1996 presidential election in the states of Delaware and New York, concluding that the former would survive constitutional scrutiny while the latter runs afoul of both the First and Fourteenth Amendments. Stark recommends Congressional reforms as the best way to ensure uniform access to primary ballots.

Winger, Richard. "The Supreme Court and the Burial of Ballot Access: A Critical Review of Jenness v. Fortson." Election Law Journal 1 (2002): 235-252.

Winger analyzes the thirty year old case Jenness v. Fortson as well as its subsequent importance to the constitutionality of state election laws limiting ballot access. Jenness has served as an almost insurmountable wall limiting ballot access by influencing almost every subsequent case on the subject where independent or minor party candidates lose. Not only is Jenness poor public policy, according to Winger, but the decision itself was deeply flawed at the time it was made.

Young, Daniel S. "Buckley v. American Constitutional Law Foundation: The Struggle to Establish a Consistent Standard of Review In Ballot Access Cases Continues." Denver University Law Review 77 (1999): 197-215.

Young looks at ballot access from a jurisprudential perspective describing the Supreme Court's history on the subject and a confusing recent ruling. The article critiques the Court's standard of review in the Buckley case and forwards a solution that seeks to offer the one thing missing from previous decisions: consistency. In ballot access cases the Court should first determine whether a regulation involves 'core political speech'; if so, the plaintiff would have to demonstrate actual negative impact on First Amendment rights, if not, the court should apply deferential scrutiny.

Zywicki, Todd J. "Federal Judicial Review of State Ballot Access Regulations: Escape from the Political Thicket." Thurgood Marshall Law Review 20 (1994): 87-140.

Zywicki looks specifically at the Supreme Court's attempts to establish a coherent jurisprudential record when addressing state and local ballot access regulations. He finds that their track record has been poor and their decisions confusing. The Supreme Court should do away with its confusing and often scattershot intrusions into the state law realm and go to a simpler two part test that will remove the Court from an area that the Constitution never intended for it to be.