Ballot Access

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

State laws that specify prerequisites for the names of candidates to appear on election ballots are known as ballot access requirements. Generally, states enact ballot access requirements to prevent ballot overcrowding, voter confusion, election fraud, and to facilitate election administration.1 Supreme Court case law demonstrates how ballot access requirements must comport with principles of equal protection under the Fourteenth Amendment.

While reasonable ballot access requirements are likely to be upheld, the Supreme Court has determined that the Constitution will not permit laws that impermissibly restrict or completely prohibit third-party and independent candidates from qualifying for the ballot.2 According to the Court, on the condition that ballot access requirements do not “unfairly or unnecessarily burden” new party or independent candidates (that is, candidates not affiliated with a political party), it may be constitutional for states to provide different requirements based on whether a candidate is a nominee of a major political party, a minor or new party, or an independent candidate.3

In a series of ballot access cases, the Court has applied and refined this analysis. For instance, in the 1971 case of Jenness v. Fortson, the Court upheld ballot access requirements whereby candidates belonging to any political party that obtained 20% or more of the vote in the previous gubernatorial or presidential elections could obtain ballot access in the general election by winning the party’s primary election while independent or candidates of other parties were required to obtain signatures of at least 5% of those registered to vote at the last election for the office sought.4 According to the Court, from the perspective of a candidate, the ballot access requirement did not violate the Equal Protection Clause because neither of the prescribed methods “can be assumed to be inherently more burdensome than the other.” 5 While recognizing that from the perspective of a political party, “the situation is somewhat different,” the Court nonetheless determined that by providing separate mechanisms for obtaining ballot access for new and established political parties, the state was simply acknowledging the differences between the two types of parties.6 As the Court explained, in enacting the ballot access requirements, the state “surely [had] an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.” 7

In the 1974 case, Storer v. Brown, the Court was faced with a ballot access requirement that independent candidates “file a petition signed by voters not less in number than 5% of the total votes cast in California at the last general election.” 8 However, the law did not permit registered voters who voted in the primary election to sign an independent candidate’s petition.9 In addition, the law prohibited an independent candidate from ballot access if the candidate voted in the preceding primary or had a registered affiliation with a political party “within one year prior to the immediately preceding primary.” 10 According to the Court in Storer, “to comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot.” 11 Acknowledging that “no litmus-paper test” exists for determining which requirements pass constitutional muster, the Court emphasized that is “very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.’” 12

In the 1997 case Timmons v. Twin Cities Area New Party, the Supreme Court announced that when evaluating whether a state election law comports with the First and Fourteenth Amendments, courts will weigh the “'character and magnitude’ of the burden” imposed by the restrictions against the government’s asserted interests, considering “the extent to which the State’s concerns make the burden necessary.” 13 In Timmons, the Court held that if ballot access requirements impose only “reasonable, nondiscriminatory restrictions” on ballot access, they will trigger a “less exacting review” whereby “important regulatory interests” asserted by the state will typicially be sufficient “to justify ‘reasonable, nondiscriminatory restrictions.’” 14 However, if restrictions are considered to be “severe,” the Court held that they “must be narrowly tailored and advance a compelling state interest.” 15

1: See, e.g., Storer v. Brown, 415 U.S. 724 (1974).
2: Lubin v. Panish, 415 U.S. 709, 719 (1974) ( “[B]allot access must be genuinely open to all, subject to reasonable requirements.” ). See also McCarthy v. Briscoe, 429 U.S. 1317 (1976); Bullock v. Carter, 405 U.S. 134, 145 (1972) (holding that in the absence of reasonable alternative means of ballot access, a state may not disqualify an indigent candidate unable to pay filing fees); Moore v. Ogilvie, 394 U.S. 814, 818–19 (1969) (overruling MacDougall v. Green, 335 U.S. 281 (1948) and holding that a requirement that independent candidates obtain 25,000 signatures, including 200 signatures from each of at least 50 of the state’s 102 counties, violated the Equal Protection Clause); Williams v. Rhodes, 393 U.S. 23, 24 (1968) (invalidating a ballot access law that rendered it “virtually impossible” for new political party candidates or candidates from an “old party, which has a very small number of members” to appear on a ballot). “[T]he totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.” Id. at 34.
3: Lubin, 415 U.S. at 716 (1974). See also Quinn v. Millsap, 491 U.S. 95 (1989); Clements v. Fashing, 457 U.S. 957 (1982); Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977); Turner v. Fouche, 396 U.S. 346 (1970); Snowden v. Hughes, 321 U.S. 1 (1944).
4: 403 U.S. 431, 432–33 (1971).
5: Id. at 441.
6: Id. at 441–42.
7: Id. at 442.
8: 415 U.S. 724, 738 (1974). See also Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 175 (1979) (invalidating a ballot access requirement whereby a new party or independent candidate running for mayor would need to obtain “substantially more signatures” than a candidate would need for a statewide office). “The signature requirements for independent candidates and new political parties seeking offices in Chicago are plainly not the least restrictive means of protecting the State’s objectives.” Id. at 186; Communist Party of Ind. v. Whitcomb, 414 U.S. 441 (1974) (invalidating, under the First and Fourteenth Amendments, a ballot access requirement prohibiting the names of candidates affiliated with new political parties from appearing on the ballot until filing an affidavit indicating that its officers did not advocate violent government overthrow). In Whitcomb, Justice Lewis Powell wrote a concurrence, joined by Chief Justice Warren Burger, and Justices Harry Blackmun and William Rehnquist, concurring in the result, but arguing that “no colorable justification has been offered for placing on appellants burdens not imposed on the two established parties. It follows that the appellees’ discriminatory application of the Indiana statute denied appellants equal protection under the Fourteenth Amendment.” Id. at 451–52 (Powell, J., concurring).
9: See Storer, 415 U.S. at 739.
10: Id. at 726.
11: Id. at 746.
12: 415 U.S. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968); Dunn v. Blumstein, 405 U.S. 330, 335 (1972)). See also Munro v. Socialist Workers Party, 479 U.S. 189, 199 (1986) (determining that a state may limit access to the general election ballot to candidates who received at least 1% of the primary votes cast for the particular office); Am. Party of Tex. v. White, 415 U.S. 767,795 (1974) (upholding, against an equal protection challenge, a state ballot access law requiring, among other things, that to appear on the general election ballot, a new political party must meet certain requirements).
13: 520 U.S. 351, 358 (1997) (citing Burdick v. Takushi, 504 U.S. 428, 434 (1992) quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). In Anderson v. Celebrezze, the Court noted “[i]n this case, we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection Clause analysis. We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment. These cases, applying the ‘fundamental rights’ strand of equal protection analysis, have identified the First and Fourteenth Amendment rights implicated by restrictions on the eligibility of voters and candidates, and have considered the degree to which the State’s restrictions further legitimate state interests.” 460 U.S. at 786, n. 7 (citing, e.g., Williams v. Rhodes, 393 U.S. 23 (1968); Bullock v. Carter, 405 U.S. 134 (1972); Lubin v. Panish, 415 U.S. 709 (1974); Ill. Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 175 (1979)).
14: Timmons, 520 U.S. at 358.
15: Id.