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Election Law Manual
Chapter 2: State Regulation of Candidacies And Candidate Ballot Access

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Table of Contents

Subchapter 1: Introduction

It is axiomatic that before a candidate can be elected to office, the candidate’s name must appear on the ballot, or she must be allowed to mount a write-in candidacy. States may regulate candidate ballot access or write-in candidacies as part of their general regulatory power over federal, state, or local elections 1 as long as the regulations comport with federal and state constitutional protections.2 These protections exist because the state’s interest in limiting ballot access is contrary to both the interests of potential candidates and of voters who may benefit from more choices at the ballot box.3

States regulate candidate ballot access to further their interests in:

  • holding orderly elections with serious, rather than frivolous, contenders, 4
  • promoting electoral integrity, 5
  • limiting voter confusion caused by lengthy ballots, 6
  • preventing fraudulent candidacies,
  • enhancing political stability by increasing the likelihood that the winner receives a majority of the votes, 7 and
  • supporting finality by reducing the need for run-off elections.8

A state may regulate both primary and general election ballot access. States may set stricter standards for the general election because of the state’s legitimate interest in reserving the general election for “major political struggles.” 9

Candidates have an interest in ballot access because without it, their candidacies are difficult if not impossible to maintain.10 The right to be recognized as a candidate is a privilege of state, not national, citizenship.11 The federal Constitution does not recognize a fundamental right to candidacy.12 Thus, the legal effect of a candidate’s ballot access interest varies by state and depends on whether the state constitution recognizes a fundamental right to candidacy.13

Voters have an interest in candidate ballot access requirements because voting for their preferred candidate is one means through which voters exercise their constitutionally protected interest in associating with politically like-minded  individuals.14 This protected interest is burdened if the state ballot access laws are overly restrictive, and few candidates gain ballot access. Courts have recognized that state ballot access requirements must not restrict the right to vote by so heavily burdening prospective candidates that few candidates (or only those candidates affiliated with the major political parties) qualify for ballot access.15 In recognition that state candidate ballot access laws implicate voters’ rights,16 courts generally weigh the state’s interests against the voters’—not the candidate’s—interests.17

To qualify for ballot access, states require candidates to satisfy a number of state statutory requirements. Some of these requirements—such as age, residency, citizenship, and education— are personal to the prospective candidate. Other requirements, such as those relating to petition signatures or political party nominations, are intended to demonstrate that the candidate has public support. Once a candidate satisfies these hurdles, the state may require the prospective candidate to pay a filing fee, resign from a current office, or satisfy other criteria. 18 Some states also disqualify those with a felony conviction from holding office indefinitely or within a certain period of time 19 if they have been adjudicated incapacitated.20

The next section discusses the most common criteria state statutes require prospective candidates to satisfy to gain ballot access, followed by a discussion on public support requirements.

Miscellaneous qualification requirements are discussed in the final ballot access criteria section. A separate section is devoted to general legal challenges. Because candidates are not always able to maintain their candidacies through Election Day, the chapter concludes with a discussion on candidate withdrawal and substitution.

Subchapter 2: Ballot Access Qualification Requirements

Many state candidate ballot access requirements concern qualities that are personal to the candidate, such as:

  • A. education or experience,
  • B. minimum age,
  • C. residency,
  • D. citizenship, and
  • E. qualified elector.

 

A. Education or Experience Requirements

Education or experience requirements are common qualification criteria for ballot access by candidates who wish to run for judicial or prosecutorial offices as well as candidates for sheriff.21 The state constitution or state statutes may specify (or courts may need to ascertain):

  • the deadline by which the requirements must be met,22
  • whether the requirements are currently satisfied,23 and
  • whether the experience must be uninterrupted or whether earlier episodes can be “tacked” onto more recent ones to achieve the relevant amount of experience.24

 

B. Minimum Age Requirements

Many states have established minimum age requirements for candidates for state or local offices. 25

Many age-related candidate qualification challenges concern the date by which the candidate must satisfy the requirement when the statute does not clearly specify one.26 The most common measuring dates or events are:

  • the petition filing deadline,27
  • the date of the primary election,28
  • the date of the general election,29
  • the date the election results are certified,30 or
  • the date the winner is sworn into office.31

When statutes do not specify the date or event when the candidate must attain the required age, courts have stepped in and done so.32

 

C. Residency Requirements

State-imposed candidate residency requirements are important derivative rights of voters because they protect voters from fraudulent candidacies.33 Residency requirements also improve the likelihood that voters will have an opportunity to get to know all the candidates before selecting amongst them in the election. 34 Additionally, residency requirements are intended to ensure that candidates are familiar with the local political climate and can identify important constituent concerns.35

Candidate residency requirements may contain: 1) geographical and 2) durational components. Geographic requirements usually require the candidate to live in the political district served by the office to which the candidate aspires. Durational residency requirements specify the length of time the candidate must have resided in the specified district before the candidate can run for office.

 

1. Geographical Residency Requirements

The concept of domicile is frequently used to assess whether a candidate whose residency has been challenged satisfies the residency requirement. .Domicile is generally defined as the combination of maintaining a residence—or presence— in a place, and the intent to remain in the location.36

Individuals may have more than one residence but can only have one domicile at a time.37 When the domicile of a candidate with multiple residences is disputed,  courts typically analyze the following factors to determine which location is the domicile:

  • the physical character of each residence,
  • the candidate’s division of time between the residences,
  • the candidate’s actions in each location, and
  • whether the candidate demonstrates an intention to return to the original domicile. 38

Once established, domicile presumably continues until

a change is demonstrated. To establish a new domicile, courts have held the candidate must have abandoned the old residence—that is, left it without a present intent to return to it as a primary residence, and acquired a new residence with the intent to remain.39

When a candidate whose residency is challenged claims that a new domicile has been established, courts must weigh the factors relating to each location to determine if a new domicile has supplanted the previous one.40 No single factor is conclusive, but if the candidate lives and votes in the same location, that location is presumed to be the candidate’s domicile.41

If the candidate lives apart from the candidate’s family, then the domicile inquiry focuses primarily on the candidate’s claimed residence and not where the candidate’s family lives.42

District boundaries for state and local offices may shift most often as a result of decennial redistricting (or as a result of successful litigation challenging district lines). These boundary shifts may impact a candidate’s ability to meet residency requirements.43 When a candidate’s residency has been involuntarily shifted between political districts, courts may be asked to determine which district boundaries apply and how residency requirements should be measured under the circumstances. 44

 

2. Durational Residency Requirements

Durational residency requirements specify the length of time candidates must live in the political jurisdiction they wish to serve in before running for office.45 Durational residency requirements both ensure voters an opportunity to get to know the candidate and the candidate an opportunity to become familiar with local political concerns.46

Courts have consistently upheld durational residency requirements for state-wide offices.47 Durational residency requirements for local offices receive greater scrutiny than those for statewide offices because the two-way informational exchange used to justify them occurs more quickly in smaller political subdivisions.48

In the absence of statutory language defining how to measure durational residency, courts may be asked to determine:

  • the point in the election cycle a candidate must satisfy the durational residency requirement,49 or
  • if the durational period must be met by uninterrupted residence or if interruptions are allowed. 50

 

D. Citizenship Requirements

States can deny ballot access to non-citizens without violating the U.S. Constitution.51

 

E. Qualified Elector Requirements

States sometimes require candidates to be “qualified electors”—that is, registered and eligible voters in the jurisdiction—before they can obtain ballot access.52

Subchapter 3: Public Support Requirements

Public support requirements further the state’s interests in limiting voter confusion brought about by cluttered ballots, enhancing political stability, and promoting electoral integrity by reducing the number of spurious candidates on the ballot. 53 Generally, states may constitutionally require third party, minor party, or independent candidates who do not qualify for automatic ballot access 54 to demonstrate a “significant modicum of support,” 55 or make a “preliminary showing of substantial support,” 56 before receiving ballot access, even though these requirements may place a burden on voters’ associational rights. States may require major political party-affiliated candidates, who usually receive automatic general election ballot access when they win the party’s nomination or prevail in a party caucus, to demonstrate some level of public support to qualify for the primary election ballot. 57 States may also require major political party-affiliated candidates to satisfy any party-imposed qualification criteria.58

 

A. Petition Signature Requirements

Many states require prospective candidates to demonstrate the seriousness of their candidacy by collecting a specified number of qualified voters’ signatures on petitions of support. The number of supporting signatures required is commonly a specified percentage of the state’s registered voters,59 a percentage of the voters who participated in a specified recent election,60 a percentage with a maximum  cap,61 or a fixed number of signatures. 62 The U.S. Supreme Court has held that petition signature requirements that are too high may burden voters’ First Amendment associational rights.63

In addition to specifying the minimum number of supporting signatures the candidate needs to qualify for ballot access, state statutes may regulate additional aspects of petition signature gathering, such as:

  • the maximum number of signatures a campaign may submit,64
  • who may sign the petition,65
  • who may circulate the petition,66
  • the time frame in which the petitions can be circulated,67 and
  • the deadline for submitting the petitions.68

Statutes may also regulate the wording and format of petitions as well as require witness or attestation statements.69

Once prospective candidates submit their supporting petitions (and any other required paperwork) to election officials, election officials must review them for compliance to decide whether the candidate is granted or denied ballot access.70 The review is an administrative process that may be subject to completion deadlines. When the petition submission deadline tolls, state statutes may prohibit prospective candidates from filing alterations, corrections, supplements, or new petitions.71 Thus, if enough signatures are disqualified 72 during the administrative review process to drop the candidate beneath the minimum number necessary for ballot access, the candidate may be prevented from submitting additional signatures and may not meet requirements to be placed on the ballot.73

The state’s interest in limiting voter confusion and enhancing political stability is not strong enough to justify all candidate ballot access restrictions. At some point, the burden placed on voters’ associational rights by the candidate ballot access restrictions can be severe enough to outweigh the state’s interest. In general, the courts have held that states unconstitutionally burden voters’ associational rights when the state requires candidates to provide more supporting signatures than the amount necessary to demonstrate a reasonable level of public support, if the petition filing deadlines occur so early in the election cycle that the issues and interests of the electorate have not yet crystallized,74 or if the totality of the petition requirements are overly restrictive.75 State signature requirements are also unconstitutional when independent candidates must meet stricter requirements than those imposed on new political parties.76

No bright-line rule distinguishes constitutional signature requirements from unconstitutional ones, although courts have sanctioned statutes that require prospective candidates to submit petitions signed by one percent or less of the locality’s electorate.77 Generally, courts evaluate the constitutionality of petition signature requirements by assessing the interaction of a number of factors, such as the following:

  • the number of signatures required to gain ballot access as a candidate for a given office,78
  • how the petition signature requirements for a given office compare to those for other offices in the same political subdivision,79
  • the amount of time candidates have to gather the signatures,80
  • how the petition signature deadlines for an independent candidacy compare with dates or deadlines applicable to party-supported candidates, such as the primary election, nominating convention, party caucus, or the date the party’s nominee must be submitted to election officials,81
  • the extent to which the state restricts who may sign the petition,82 and
  • whether the state’s ballot access regulations effectively limit ballot access to the two major political parties.83

Because the totality of a state’s ballot access regulations is important, petition signature requirements that exceed generally approved limits 84 may nonetheless be valid if they are mitigated by overall flexibility in the state’s plan. For example, the U.S. Supreme Court upheld a state’s ballot access regulations that required independent candidates or third parties to submit petitions with signatures of 5 percent of the total number of voters eligible to participate in the last election for the office the candidate was seeking.85 While noting that the signature percentage requirement was higher than what many states require,86 the court found the requirement constitutional because:

  • the state’s overall ballot access scheme was flexible,
  • voters could sign a nominating petition even if they had already voted in a primary election, and
  • voters could sign more than one candidate’s nominating petition.87

 

B. Advancement from Primary to General Election Requirements

Although major political parties may be granted automatic access to both the primary and general election ballots as a matter of course, independent, and third-party candidates may need to receive a specified level of support in a primary election to advance to the general election, as long as the requirements are constitutionally reasonable.88

Some states do not include the names of unopposed primary election candidates on the primary election ballot.89 In Oklahoma, for example, any candidate who is unopposed in a partisan primary, is deemed to have been nominated and certified, and their name will not appear on the primary ballot.90 If this occurs for each of the offices up for election, then no primary will be held.91 The candidates proceed to the general election. While this approach is permitted for state and local elections, it is prohibited for federal elections because omitting even unopposed federal candidates from the ballot violates the requirement that federal officers are elected on a uniform Federal Election Day.92

Subchapter 4: Miscellaneous Candidacy Regulations

In addition to meeting personal requirements and demonstrating public support for their candidacy, many states place additional restrictions on a candidate’s ballot access.93 This section discusses the most common types of these additional restrictions and the legal issues that might arise with respect to those restrictions. They include:

  • A. filing fees,
  • B. disaffiliation periods,
  • C. “sore loser” limitations,
  • D. fusion candidacies,
  • E. limits on the number of simultaneous candidacies,
  • F. resignation requirements,
  • G. “increased emoluments” limitations,
  • H. term limits,
  • I. election code violations, and
  • J. write-in candidacies.

As with the previous section, when challenges to these regulations involve special considerations, they will be discussed along with the regulation.

 

A. Filing Fees

Prospective candidates must usually pay a filing fee before their candidacy application is processed. In two 1970s-era decisions, the Supreme Court struck down the challenged filing fees as unconstitutional burdens on the associational rights of indigent voters.94 The Court held that a candidate’s wealth—as reflected by the candidate’s ability to pay the substantial filing fees 95 —had no direct  bearing on the seriousness of the candidacy, his public support,96 or his qualifications for the office;97 thus, the filing fees did not support the state’s interest in limiting ballot access to only serious candidates.

  • The unconstitutional filing fees exhibited the following characteristics:
  • they were based on the salary for the office being sought, 98
  • they covered the entire costs of the primary election without any contribution from taxpayer funds, 99 and
  • they could not be waived even if a prospective candidate was unable, rather than merely unwilling, to pay them.100

Although nominal filing fees appear to be constitutional, no bright line exists between nominal and overly burdensome filing fee requirements. What is certain, however, is that if a state’s candidate filing fee regime does not allow for alternate means of ballot access, it is vulnerable to a constitutional challenge,101 and will be analyzed under heightened scrutiny.

 

B. Disaffiliation Periods

Some states require prospective candidates to officially disaffiliate from their previous political party before they may run for office under a different political  party label or as an independent.102 States rely on their interest in supporting political stability to prevent party-splintering and excessive factionalism to justify disaffiliation requirements.103

Although disaffiliation requirements bar candidacies of individuals who do not decide to run for office early enough in the election cycle to comply with disaffiliation requirements, a failure to comply is nonetheless a valid bar to ballot access.104 Disaffiliation requirements are independent of other candidacy qualification provisions and are not included in a “totality of the circumstances” analysis.105 Presumably the length of time a disaffiliation statute requires a candidate to abstain from running for office as an independent or under a new political party label can become excessively burdensome, but a constitutional upper limit on disaffiliation periods has not yet been identified. Instead, disaffiliation periods of six months,106 one year,107 and four years 108 have been upheld.

 

C. “Sore Loser” Limitations

Not all states have so-called “sore loser” statutes, but in those that do, these statutes most commonly prohibit losing primary candidates from running for an office in the general election.109 The loser of the primary may be prohibited from  gaining ballot access to the general election ballot as an independent candidate or otherwise.

Courts have concluded that states legitimately use primary elections to winnow candidates, sort out intra-party differences, and reduce intra-party competition.110 Through this use of the primary, states reserve the general election for the resolution of “major struggles” between political parties,111 and justify their sore loser statutes.

States without explicit sore loser statutes may have other candidacy requirements that operate in a similar fashion. In one instance, a court found that a losing gubernatorial primary election candidate was ineligible to mount an independent general election candidacy because the primary candidacy was conditioned on the candidate’s oath to abide by the primary election results.112

 

D. Fusion Candidacies

Fusion candidacies occur when the same individual runs as the nominee of more than one political party, generally a major party and a third-party. In usual practice, the third-party nominates a candidate who has already been selected as the major party’s nominee.113

Many states prohibit fusion candidacies.114 The U.S. Supreme Court has upheld such prohibitions finding the character and magnitude of their burden on voters’ associational rights does not outweigh the state’s interest in political stability and its interest in limiting voter confusion.115 In addition, fusion candidate restrictions do not prevent multiple parties from endorsing the same candidate; it only limits the candidate’s name to appearing on the ballot under one party’s label.116

 

E. Limits on the Number of Simultaneous Candidacies

Some states limit candidates to running or seeking nomination for only one office at a time,117 including any combination of state, federal, and local offices.118 When

challenged, these laws have generally been upheld.119 However, statutes rendering any person ineligible to hold more than one elective office in the same town may not preclude that candidate from running for or holding elective offices in two different towns.120

 

F. Resignation Requirements

“Resign to run” statutes require current elective office holders to resign their office before they become candidates for a different elective office.121 The Supreme Court has upheld such statutes on the basis that the Constitution does not recognize a fundamental right to candidacy and additionally that resign to run requirements do not violate a political party’s right to associate with the candidate of its choice.122 The Court has noted that resign to run statutes place fewer restrictions on election officials than constitutional restrictions on civil servants’ political activity in general.123

If a state’s constitution recognizes a right to candidacy, courts have found resign to run statutes may violate a state’s constitution.124

 

G. “Increased Emoluments” Limitations

State statutes or constitutions may prohibit individuals who in their previous position increased the “emoluments” or compensation of an office from seeking that position.125 Courts may be asked to determine if the candidate’s actions render the candidate unable to qualify for ballot access because of these prohibitions.126

 

H. Term Limits

Term limits for elective federal offices other than the presidency are unconstitutional.127 States may, however, adopt term limits for state and local offices absent contrary provisions in the state constitution.128

 

I. Election Code Violations

State statutes may prohibit or restrict candidacies by individuals who violated election statutes during previous candidacies.129 Candidates may sue over the applicability of these restrictions or their length. One court upheld a five-year statutory candidacy ban a candidate incurred for failing to file timely campaign finance reports following an earlier election.130

 

J. Write-In Candidacies

Although many states allow candidates who fail to gather sufficient petition signatures to qualify for ballot access to mount a write-in candidacy,131 states can constitutionally prohibit write-in voting if their overall ballot access scheme is constitutional.132 For example, a state that provided “easy access” to the ballot survived a constitutional challenge to its prohibition of write-in voting in primary and general elections.133

Subchapter 5: Ballot Access Challenges

Candidate ballot access-related lawsuits are generally either:

  • compliance-based challenges, or
  • constitutional challenges.

Compliance-based challenges allege that election officials erred when they granted or denied ballot access to a particular candidate. These lawsuits are based on the candidate’s compliance (or lack thereof) with state statutes governing candidacies and ballot access. Depending on whether the plaintiff is the spurned candidate or an opponent of the candidate, the court is asked to add the candidate’s name to the ballot or to order it removed from the ballot. Constitutionally based challenges target a specific state ballot access requirement or the state’s overall ballot access scheme. In these lawsuits, the petitioner asks the court to overrule the requirement(s) on state or federal Constitutional grounds.

 

A. Compliance-Based Challenges

Compliance-based candidate ballot access challenges usually occur in one of two forms. First, a prospective candidate could sue on the candidate’s behalf, alleging ballot access was denied even though all ballot access requirements were satisfied, and ask the court to order election officials to place the candidate’s name on the ballot. Second, a voter, political party, or opposing candidate 134 could sue, alleging an ineligible candidate was granted ballot access, and ask the court to order election officials to remove the allegedly unqualified candidate’s name from the ballot or ask the court to enjoin election officials from counting ballots cast for the candidate if the candidate’s name cannot be removed.

Under either circumstance, the plaintiff may need to pursue administrative remedies with the local board of elections, or its equivalent, before filing a lawsuit.135 Challengers may also need to file within a statute of limitations period or else lose the opportunity to challenge the decision.136

Courts prefer to hear and resolve candidate qualification challenges before the election. Settling these disputes early limits the instability that occurs when a winning candidate’s qualifications for office are challenged post-election. The preference for pre-election resolution is so strong that some courts apply laches 137 to dismiss post-election candidate qualification challenges filed by opposing candidates who wait for the election’s outcome and sue only if their opponent wins.138

Any and all candidate requirements can be the focus of a compliance-related lawsuit. The error election officials are most likely alleged to have made involves correctly ascertaining a candidate’s compliance with one or more of the following ballot access requirements:

  • nominating petitions,139
  • residency,
  • experience, or
  • non-affiliation or “sore loser” restrictions.

In general, courts interpret candidate qualification statutes reasonably and without burdensome “ultra-technical[ity]” because they impact voters’ rights.140 Because courts interpret election laws to “promote rather than defeat” candidacies,141 doubt about whether a candidate satisfies the qualifications is usually resolved in the candidate’s favor.142 For example, one court decided the prospective candidate substantially complied with nominating petition requirements because the obsolete petition form the candidate used contained all the required information, albeit in different locations.143

The prospective candidate who challenges election officials’ denial of ballot access may bear the burden of proving ballot eligibility.144 Likewise, the individual who sues to block or reverse a candidate’s ballot access must prove the candidate’s disqualification. 145 Generally, a disqualification based on the candidate’s alleged inability to satisfy residency requirements, however, must be proven by clear and convincing evidence 146 because filing a false candidacy certification may subject the candidate to criminal penalties.147

The outcome of the candidate compliance challenge may hinge on how or when the candidate’s compliance is measured. Specifically, the candidate’s compliance may depend on the candidate’s status on a particular date, and the court may need to determine the appropriate measuring date.148 Candidate qualifications are generally either measured in a “snapshot” or as an ongoing requirement.149

Under a “snapshot” approach, candidate qualification criteria must be satisfied at a fixed moment in time. The most common measuring dates or events by which candidates must meet certain candidacy requirements are:

  • the petition filing deadline,150
  • the date of the primary election,151
  • the date of the general election,152
  • the date the election results are certified,153 or
  • the date the winner is sworn into office. 154

An alternative approach considers candidate qualification requirements to be ongoing—i.e., requirements that must be satisfied throughout the election cycle. Under this approach, a candidate who satisfied qualification requirements when candidacy papers were filed may fail to satisfy them at a later date by, for example, losing a required professional license or moving outside the political subdivision.155 Such candidate may find the candidacy challenged because of this subsequent failure.

No matter the approach taken by states to evaluate candidate qualification, it may be hard for defendants to use the defense of laches as courts generally hold that plaintiff’s delays in filing, which would ordinarily be defeated by a latches defense, do not prejudice unqualified  candidates because they were never eligible for office.156

The remedy pool for most compliance-related candidate ballot challenges is limited, even for pre-election challenges. Assuming laches does not apply, all procedural requirements have been satisfied, and the challenger wins, courts will generally issue a writ of mandamus to order election officials to add the qualified candidate’s name to the ballot,157 or order election officials to remove or omit the unqualified candidate’s name from the ballot.158

If insufficient time exists to remove an ineligible candidate’s name from the ballot, the court might instead declare the candidate ineligible to take office or advance to the next election stage should the candidate win the forthcoming election.159 When a court cannot make an eligibility determination before the election, it may allow the candidacy to continue while reserving the right to determine the candidate’s eligibility after the election.160

 

B. Constitutional Challenges

As indicated earlier in this chapter, the Supreme Court recognizes that states have an interest in establishing candidate ballot qualification standards that limit ballot length to a reasonable size and populate it only with serious candidates who have some prospects of public support.161 Nonetheless, overly restrictive individual state ballot access regulations may violate the Constitution, as may the totality of the state’s regulations.162

When the constitutionality of a state’s candidate ballot access law is challenged, courts must individually analyze the regulations at issue because no “litmus-paper test” exists to separate valid from invalid regulations.163 Courts use the following process to analyze the challenged regulation(s) using the Anderson-Burdick test:

  • identify the character and magnitude of the burden the challenged regulation(s) place(s) on the plaintiff’s First and Fourteenth Amendment rights,
  • identify and evaluate the precise state’s interest(s) used to justify the regulation’s burden,
  • determine the legitimacy and strength of each of the state’s interests,
  • consider whether the state’s interest(s) justify the burden placed on the plaintiff's rights, and
  • weigh the above factors to decide whether the challenged provision is unconstitutional.164

Even though all candidate ballot access regulations burden constitutional rights to some extent because some voter’s preferred candidate is unlikely to meet them, most ballot access regulations receive rational basis scrutiny. Only regulations that implicate wealth-based classifications (such as filing fees) or the associational rights of political parties or voters (such as petition requirements) receive heightened or strict scrutiny.165

Under rational basis review, courts uphold a state regulation’s constitutionality if the challenger cannot prove the regulation is not rationally related to a legitimate governmental objective. This burden is difficult to meet. Most challenged ballot access regulations that undergo rational basis scrutiny will be upheld.166 Under this analysis, courts recognize that states have a legitimate interest in electoral  integrity, orderly elections, limiting voter confusion, and supporting the finality and stability of the political process, and most ballot access regulations can be justified on one or more of these grounds.167

Under strict scrutiny, the state bears the burden of proving that the challenged statute is the least restrictive, narrowly tailored means possible to achieve a compelling governmental objective. Most regulations subject to strict scrutiny are unable to satisfy this standard and are declared unconstitutional.168

Subchapter 6: Candidate Removal or Substitution

Candidates who have gained ballot access sometimes die, withdraw their candidacy, or become disqualified before an election or between the primary and general election. Under these circumstances,169 they (or others) may seek to remove a candidate’s name from the ballot and may also request a substitute candidate’s name be included on the ballot.

In general, a candidate’s pre-election death, withdrawal, or disqualification does not automatically remove the candidate’s name from the ballot.170 Instead, state statutes govern the circumstances under which a withdrawal is allowed, who may make a withdrawal request, and when the withdrawal request must be received.171 State statutes may also specify the administrative processes that must be followed to effectuate the removal of the candidate’s name from the ballot as well as the substitution process, if any.172

Courts become involved in candidate withdrawal and replacement issues when state statutes do not address the factual circumstances that arise or when an administrative decision granting or denying candidate withdrawal or replacement is challenged. Under these circumstances, the court may be asked to order election officials to remove a dead, ineligible, or withdrawn candidate’s name from the ballot and allow a replacement’s name to be added,173 or to prohibit a withdrawal or replacement.174 Withdrawal and substitution requests received close to the election may be impossible to honor because substitution deadlines may have passed, absentee ballots may have been mailed, or it may be too late to create a new ballot.175

The court may also be able to consider the public and candidate interests in allowing the substitution.176 When only one candidate in a slate—such as a joint governor/lieutenant governor ticket—is ineligible or seeks to withdraw, the court may be able (or required) to consider whether the running mate was complicit in the circumstances that prompted the substitution request.177 In addition, the court  may be asked to determine if the entire slate is affected when one slate member is disqualified or withdraws.178 Finally, when doubt exists as to whether a state statute require an ineligible candidate’s name to be stricken from the ballot, courts generally prefer to continue the candidacy.179 If a candidate voluntarily withdraws from candidacy, the candidacy is usually terminated regardless of whether the candidate’s name is removed from the ballot.180 If the withdrawn candidate wins the election, the candidate is unable to take office, with the resulting circumstance treated as a vacancy to be filled as the relevant statute requires.181

Subchapter 7: Conclusion

Before candidates can be elected to office, their names must appear on the ballot. States regulate candidate ballot access or write-in candidacies. States are permitted to impose ballot access requirements so long as they comport with federal and state constitutional protections.

To qualify for ballot access, candidates usually must satisfy several state statutory requirements. Some of these requirements—such as age, residency, citizenship, and education—are personal to the prospective candidate. Other requirements— such as those relating to petition signatures or political party nominations—are intended to demonstrate that the candidate has public support.

A state’s interest in regulating candidate ballot access often involves holding orderly elections, promoting electoral integrity, limiting voter confusion caused by lengthy ballots, preventing fraud, enhancing political stability, and supporting finality. Candidates have an interest in ballot access. Without it, their candidacies are difficult or impossible to maintain. Voters also have an interest in candidate ballot access because voting for one’s preferred candidate is a means through which voters exercise their constitutionally protected right of association.

Footnotes

  1. U.S. CONST. art. I, § 4; Lubin v. Panish, 415 U.S. 709, 715 (1974) (noting the importance of limiting ballots to a reasonable size and serious candidates with some prospects of public support was not open for debate although the method by which a candidate’s seriousness was tested might be).
  2. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) (quoting Kusper v. Pontikes, 414n51, 58-59 (1973)) (“[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty”). But see Anderson v. Celebrezze, 460 U.S. 780 (1983) (noting that a state’s interest in regulating ballot access for a nationwide presidential election is not as strong as when it regulates elections for state and local offices).
  3. See Burdick v. Takushi, 504 U.S. 428 (1992) (assessing the weight of the state’s interest against “voters' rights to make free choices and to associate politically through the vote” and further elaborating the concept that voter and candidate rights cannot be untangled).
  4. Panish, 415 U.S. at 714 (1974) (reasserting “the imperative of protecting the integrity of the electoral system from the recognized dangers of ballots listing so many candidates as to undermine the process of giving expression to the will of the majority.”).
  5. Id.
  6. Id. at 715 (“We recognized that the State’s interest in keeping its ballots within manageable, understandable limits is of the highest order.”); id. at 712 (citing Thomas v. Mims, 317 F. Supp. 179, 181 (S.D. Ala. 1970)).
  7. See id. at 715-16 (recognizing a state’s legitimate interest in offering “ballots of a reasonable size limited to serious candidates with some prospects of public support.”).
  8. Id. at 712-13 (citing Spillers v. Slaughter, 325 F. Supp. 550, 553 (M.D. Fla. 1971) (reaffirming the interest “to limit the number of runoff elections”).
  9. See Lee v. Keith, 463 F.3d 763, 769 (7th Cir. 2006) (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997)) (“There is no question that states have a strong interest in confining party infighting to the primary election and reserving the general election for major political struggles.”); Burdick, 504 U.S. at 439 (1992); Anderson v. Morris, 636 F.2d 55, 57 (4th Cir. 1980) (“[T]hat the general election ballot is reserved for major political struggles, [and] … that the general election ballot shall present the electorate with understandable choices and the winner shall have sufficient support to govern effectively.”).
  10. Hanna Merzbach, Write-in Candidates: Do They Ever Win?, KGW (Oct. 21, 2020, 11:58 AM), https://www.kgw.com/article/news/politics/elections/do-write-in-candidates-ever-win/283-fccf8694- af1a-4a2a-80cb-a6490866dc7f (“On the national level, write-in candidates typically garner less than a percent of the popular vote and have never won a U.S. presidential election, though they are on the rise.”).
  11. Some states remove the right to candidacy upon conviction of a crime. See MICH. COMP. LAWS ANN. § 168.938 (West); DEL. CODE ANN. tit. 15, § 7555 (West). Some states limit ineligibility to convictions for crimes that harm public integrity. See CAL. ELEC. CODE § 20 (West) (disqualifying those with felony convictions from state or local elected office when the felony “involv[es] accepting or giving, or offering to give, any bribe, the embezzlement of public money, extortion or theft of public money, perjury, or conspiracy to commit any of those crimes.”); PA. CONST. art. II, § 7 (“No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth.”).
  12. Snowden v. Hughes, 321 U.S. 1 (1944) (noting state constitutions may recognize a right to candidacy).
  13. See White v. Manchin, 318 S.E.2d 470 (W. Va. 1984) (noting the state constitution recognized a fundamental right to candidacy, stating “strict scrutiny applies, whether under the equal protection clause of the fourteenth amendment or under the fundamental right to candidacy under our state constitution,” id. at 488.); see State ex rel. Billings v. City of Point Pleasant, 460 S.E.2d 436, 440 (W. Va. 1995) (“We agree . . . that the West Virginia Constitution confers a fundamental right to run for public office. This right necessarily follows from several provisions. First, Article IV guarantees a right of political participation through Section 1's extension of the franchise to all adults (except those of unsound mind or under a felony conviction) and through Section 4's use of the Section 1 voter eligibility criteria to determine eligibility for public office.”).
  14. See Clements v. Fashing, 457 U.S. 957, 963 (1982); Bullock v. Carter, 405 U.S. 134, 143 (1972) (requiring that states must examine candidate access restrictions by the extent and nature of the impact they have on voters); see also Panish, 415 U.S. at 716 (commenting on the intertwining of candidates’ and voters’ rights and interests).
  15. See Williams v. Rhodes, 393 U.S. 23 (1968) (finding it necessary to assess the “totality of the [] restrictive laws”).
  16. Storer, 415 U.S. at 756; see also Celebrezze, 460 U.S. at 786 (noting the lack of a neat separation between the rights of candidates and the rights of voters because the laws affecting candidates have a “theoretical, correlative effect on voters” (quoting Bullock, 405 U.S. at 143)).
  17. See Burdick, 504 U.S. at 440 (1992) (“We think these legitimate interests asserted by the State are sufficient to outweigh the limited burden that the write-in voting ban imposes upon Hawaii's voters.”); Celebrezze, 460 U.S. at 806 (1983) (“[T]he burdens Ohio has placed on the voters' freedom of choice and freedom of association, in an election of nationwide importance, unquestionably outweigh the State's minimal interest in imposing a March deadline.”).
  18. See TEX. ELEC. CODE ANN. § 172.021 (West) (requiring a filing fee or a petition in lieu of the fee), Fla. Stat. Ann. § 99.012 (West) (setting forth required resignation terms); see also UTAH CODE ANN. § 20A-9-201 (West) (requiring a prima facie showing of impecuniosity as evidenced by an affidavit and, if requested, a financial statement).
  19. See, e.g., IND. CODE § 3-8-1-5 (2021); MO. REV. STAT. § 115.306 (2017); LA. CONST. art. I, § 10.1; OKLA. STAT. tit. 26, § 5-105a (1986).
  20. See, e.g., N.H. REV. STAT. ANN. § 655:38 (2013).
  21. Bowring v. Dominguez, 44 P.2d 299 (Cal. 1935); Gazan v. Heery, 187 S.E. 371 (Ga. 1936); Gamble v. White, 566 So.2d 171 (La. Ct. App. 1990); Hannett v. Jones, 722 P.2d 643 (N.M. 1986); State ex rel. Willis v. Monfort, 159 P. 889 (Wash. 1916).
  22. See Sears v. Bayoud, 786 S.W.2d 248 (Tex. 1990) (measuring experience from Election Day, not at the time the winner would take office); Bowring, 44 P.2d 299 (holding that different statutory language meant judicial candidates must satisfy experience requirements by the date of the election even though land surveyors and sheriffs had until the date they took office to gain the necessary experience).
  23. See Monfort, 159 P. 889 (holding that an attorney whose license to practice was suspended was ineligible to run for a judgeship). See also Gamble, 566 So.2d 171.
  24. See Hannet, 722 P.2d 643 (holding that, notwithstanding plain statutory language, residency and legal practice requirements must be satisfied by the time “next preceding” the election and not aggregated over the candidate’s lifetime).
  25. The Constitution establishes minimum age requirements for members of Congress and the President. See, e.g., ALASKA STAT. ANN. § 15.25.030 (West); W. VA. CONST. art. IV, § 4; OR. CONST. art. IV, § 8; MO. CONST. art. III, § 4.
  26. See, e.g., In re Nomination Petition of Gale, 184 A.3d 185, 186 (Pa. Commw. Ct. 2018) (contesting that the phrase “who shall have attained the age of 30 years” without a noted deadline means “he is ‘eligible’ to run for Lieutenant Governor, but if successful will be ‘disabled’ due to age from assuming the office until he attains the age of 30 years”).
  27. Montelepre v. Edwards, 359 So. 2d 1311, 1314 (La. Ct. App. 1978) (reaffirming the interpretation of LA. STAT. ANN. § 18:451 to mean that the “section refers to qualifications for candidacy, which by definition means that one must possess the requisite qualifications for a position at the time one qualifies to seek that position; in other words, one qualifies when he files to run for the office”).
  28. Nicol v. Superior Ct., Maricopa Cty., 473 P.2d 455 (Ariz. 1970) (holding that though there was authority to exclude a candidate from a primary ballot if the candidate could not satisfy all the requirements to hold office, the complaint in this case was premature).
  29. Hayes v. Gill, 473 P.2d 872, 876 (Haw. 1970); Comer v. Ashe, 514 S.W.2d 730, 733 (Tenn. 1974) (“[I]n the light of [TENN. CONST. art. II, § 3]. . . is to require that a State Senator must have attained age 30 by the date of the commencement of his term, which is the day of the election.”) (emphasis added).
  30. See MD. CODE ANN., ELEC. LAW § 12-202 (West) (“A registered voter may seek judicial relief under this section in the appropriate circuit court within the earlier of: (1) 10 days after the act or omission or the date the act or omission became known to the petitioner; or (2) 7 days after the election results are certified, unless the election was a gubernatorial primary or special primary election, in which case 3 days after the election results are certified.”).
  31. Stiles v. Blunt, 912 F.2d 260, 261 (8th Cir. 1990) (reaffirming that a candidate must “be 24 years old on the date he would be sworn into office as required by MO. CONST. art. III, § 4 and MO. ANN. STAT. § 21.080”) (citations omitted).
  32. See, e.g., State ex rel. Sullivan v. Hauerwas, 36 N.W.2d 427 (Wis. 1949) (holding, in the absence of statutory language specifying a date or event, that the candidate must satisfy the age requirement by Election Day).
  33. White v. Manchin, 318 S.E.2d 470, 478-79, 546-47 (W. Va. 1984) (holding that one-year durational residency requirement for state senators served a compelling state interest and did not violate the fundamental constitutional rights of either candidates or voters).
  34. In re Contest of Nov. 8, 2011 Gen. Election of Off. of New Jersey Gen. Assembly, 40 A.3d 684, 699 (N.J. 2012) (“First, such requirements ensure that voters have time to develop a familiarity with the candidate. Second, they ensure that the candidate can become familiar with the constituency and the issues facing the people to be represented.”).
  35. Id.
  36. See White, 318 S.E.2d at 482 (borrowing domicile definition from state divorce statutes when candidate qualification statutes do not define domicile); Darnell v. Alcorn, 757 So. 2d 716, 719 (La. App. 1999) (finding actual domicile necessary to meet residency requirements; fictitious domicile insufficient).
  37. See Domicile, BLACK'S LAW DICTIONARY (11th ed. 2019).
  38. See White, 318 S.E.2d at 486 (“Intent to change domicile, which requires an intent not to return to the old domicile, is to be inferred from facts and circumstances, not from self-serving representations.”); State v. Stalnaker, 412 S.E.2d 231, 234 (W. Va. 1991) (“Stalnaker's change in residence for convenience while he was constructing a replacement for his trailer, does not, without more, indicate a change in domicile.”).
  39. See Oglesby v. Williams, 812 A.2d 1061, 1069, 1075 (Md. 2002) (per curiam) (holding that the candidate’s non-continuous, prior residence in the county did not satisfy the constitutional residency requirements for eligibility).
  40. Id. at 1068–69 (“In deciding whether a person has abandoned a previously established domicile and acquired a new one, courts will examine and weigh the factors relating to each place. This Court has never deemed any single circumstance conclusive. However, it has viewed certain factors as more important than others, the two most important being where a person actually lives and where he votes. Where a person lives and votes at the same place such place probably will be determined to constitute his domicile. Where these factors are not so clear, however, or where there are special circumstances explaining a particular place of abode or place of voting, the Court will look to and weigh a number of other factors in deciding a person's domicile.”).
  41. Id. at 1069.
  42. In re Stack, 184 A.3d 591, 599 (Pa. Commw. Ct. 2018).
  43. See Clayton v. Kiffmeyer, 688 N.W.2d 117, 124 (Minn. 2004). The court waived the geographical residency requirement for one election cycle for an incumbent judge attempting to qualify for ballot access for re-election who, after the judicial boundaries were shifted, no longer met the residency requirements for the office. The court held that no Equal Protection violation occurred when the challenger had to meet residency requirements, but incumbent judicial candidate did not. In addition, because the office was judicial and not legislative, the court considered residency requirements to be less important because constituent representation was not involved.
  44. See, e.g., McCarter v. Broom, 377 So. 2d 383, 384–85 (La. Ct. App. 1979) (“We therefore hold that Mr. Broom, because of his bona fide effort to establish his domicile in District 12, within a reasonable time after the reapportionment order, and before the date of his qualification as a candidate, is eligible to run for councilman from District 12.”); Norris v. Gould, 854 So. 2d 448, 450 (2003), writ denied, 853 So. 2d 611.
  45. Note that durational residency requirements for voters have been reviewed more strictly than durational residency requirements for candidates. See infra Chapter 5: State Regulation of Voters for additional information on durational requirements imposed on voters.
  46. White v. Manchin, 318 S.E.2d 470, 489-91 (upholding one-year durational residency requirement for state senate).
  47. Id. at 489 (listing numerous cases upholding state durational residency requirements for state offices).
  48. Id. at 488 (listing long line of cases invalidating durational residency requirements for local offices).
  49. See Thompson v. Mellon, 507 P.2d 628, 636 (1973) (holding that the crucial date for durational residency requirements is the filing date of the prospective candidate’s nominating papers).
  50. See Callaway v. Samson, 193 F. Supp. 2d 783, 787 (D.N.J. 2002) (finding that a state statute imposing a one-year residency requirement for local office burdened prospective candidates’ constitutional right to intrastate travel and supporters’ right to vote); Bearup v. Voss, 690 P.2d 790, 792 (Ariz. Ct. App. 1984) (affirming requiring residency for three “uninterrupted” years prior to the election).
  51. Sugarman v. Dougall, 413 U.S. 634, 650 (1973) (Rehnquist, J., dissenting) (stating that non-citizens’ status was not suspect because it was not “one with which they were forever encumbered; they could take steps to alter it when and if they chose.”).
  52. See, e.g., 17 R.I. GEN. LAWS § 17-14-2(a) (“No person shall be eligible to file a declaration of candidacy, or be eligible to be a candidate or be eligible to be voted for or to be nominated or elected in a party primary unless the person, at the time of filing the declaration, is qualified to vote in a primary within the district for the office which he or she seeks.”); 10 ILL. COMP. STAT. 5/7-10 (2021); W. VA. CODE § 3-5-7 (2021) (“[C]andidate [must be] a legally qualified voter of that county.”). See also VA. CODE ANN. § 24.2-519 (1993); Dixon v. Va. State Bd. of Elections, 83 Va. Cir. 371 (Va. Cir. Ct. 2011) (holding candidate was eligible to hold office because of change in domicile as required by § 24.2-519 and VA. CONST. art. II, § 1); see also VA. CONST. art. IV, § 4 (listing candidacy qualifications for a seat in the General Assembly).
  53. For an example of the interests involved generally in petition requirements, see Lubin v. Panish, 415 U.S. 709, 715–16 (1974) (“That ‘laundry list’ ballots discourage voter participation and confuse and frustrate those who do participate is too obvious to call for extended discussion. . . . Rational results within the framework of our system are not likely to be reached if the ballot for a single office must list a dozen or more aspirants who are relatively unknown or have no prospects of success.”).
  54. The major political parties—the Democratic and Republican—as well as non-major political parties may qualify for automatic ballot access, although the specific candidate who will represent the party may not be known until decided by or through a party primary, convention, or nominating caucus.
  55. Jenness v. Fortson, 403 U.S. 431, 442 (1971).
  56. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
  57. See, e.g., OHIO REV. CODE ANN. § 3513.07 (West) (listing the form for declaration of candidacy requirements, including the signatories, without regard for party).
  58. See infra Chapter 3: State Regulations that Affect Political Parties for additional information on political parties.
  59. ARIZ. REV. STAT. ANN. § 16-322 (“In school districts or career technical education districts, the basis of percentage shall be the total number of active registered voters in the school district or career technical education district or single member district, whichever applies”).
  60. See, e.g., NEV. REV. STAT. ANN. § 293.200 (West) (requiring either a percentage or a specified number of voters’ signatures for an independent candidate to qualify); see also Swanson v. Bennett, 340 F. Supp. 2d 1295, 1299 (M.D. Ala. 2004) (upholding Alabama’s “three percent” requirement).
  61. See, e.g., MD. CODE ANN., ELEC. LAW § 5-703 (West).
  62. See, e.g., UTAH CODE ANN. § 20A-9-408 (West); OHIO REV. CODE ANN. § 3513.05 (West).
  63. See Storer v. Brown, 415 U.S. 724, 738-40 (1974) (holding that a signature requirement higher than 5 percent of the entire vote cast in the area’s preceding general election can be “unduly onerous” on constitutional rights).
  64. See, e.g., ARIZ. REV. STAT. ANN. § 16-322 (2021) (limiting signatures to 1,000 for candidates for a community college district and 400 for candidates for a governing board of a school district or a career technical education district); WIS. STAT. § 8.15 (2018) (allowing no more than 4,000 signatures for statewide office, 2,000 for congressional office, 800 for state senate, and 400 for state assembly).
  65. States commonly require the petition signer to be a registered voter and live in the jurisdiction subject to the office. They may also require the signer to forego participating in another nominating process, such as a primary election. See, e.g., WIS. STAT. § 8.15 (2018) (requiring signatories to confirm that “I have not signed the nomination paper of any other candidate for the same office at this election”).
  66. See Ryan v. Bd. of Elections of City of New York, 426 N.E.2d 739 (N.Y. 1981) (per curiam) (finding the redistricting plan that placed petition circulator’s home 125 feet outside the redrawn boundary operated to invalidate the nominating petitions he circulated for lack of compliance with circulator residency requirements). See also CONN. GEN. STAT. § 9-410(c) (2003) (“Each circulator of a primary petition page shall be an enrolled party member of a municipality in this state who is entitled to vote.”). But see Libertarian Party of Va. v. Judd, 718 F.3d 308 (4th Cir. 2013) (affirming the lower court’s judgment that enjoined enforcement of a requirement for petition circulators to be Virginia residents on First Amendment grounds).
  67. See, e.g., ARK. CODE ANN. § 7-7-205 (2019) (“No signature that is dated more than ninety (90) days before the date the petition is submitted shall be counted.”).
  68. E.g., TENN. CODE ANN. § 2-5-101 (2020).
  69. See, e.g., KAN. STAT. ANN. § 25-205 (2020) (“I, the undersigned, an elector of the county of , and state of Kansas, and a duly registered voter, and a member of party, hereby nominate , who resides in the township of (or at number on street, city of ), in the county of and state of Kansas, as a candidate for the office of (here specify the office) , to be voted for at the primary election to be held on the first Tuesday in August in , as representing the principles of such party; and I further declare that I intend to support the candidate herein named and that I have not signed and will not sign any nomination petition for any other person, for such office at such primary election.”).
  70. If independent candidates satisfy ballot access requirements, state statutes might allow them to designate a political party label to run under. See Greene v. Slusher, 190 S.W.2d 29 (Ky. 1945) (upholding candidate’s right to seek office under the “Law and Order Party” notwithstanding that no such party existed).
  71. See State ex rel. Sturgill v. Lorain Cnty. Bd. of Elections, 842 N.E.2d 78 (Ohio Ct. App. 2005) (per curiam); Nader v. Keith, 385 F.3d 729 (7th Cir. 2004).
  72. Disqualification requirements vary by state. In California for example, counties have eight days to report the raw count of signatures to the Secretary of State. If the total number of signatures reaches the signature threshold needed for the petition, the Secretary of State directs county election officials to randomly sample signatures for validation to ensure that the signatures are made by registered voters. If the result of the random sample indicates that the number of valid signatures represents between 95% and 110% of signatures necessary to qualify the petition, the Secretary of State directs the county elections officials to verify every signature on the petition. See Initiatives and Referenda Pending Signature Verification, CAL. SEC. OF STATE, https://www.sos.ca.gov/elections/ballot-measures/initiative-and-referendum-status/initiatives-and-referenda-pending-signature-verification. Virginia law requires the state Board of Elections to come up with a process to check if an individual is registered to vote in the state, and a process to track the information from each petition. Virginia also requires a witness to every petition signature. See VA. CODE ANN. § 24.2-506 (2020); Constitution Party of Va. v. Va. State Bd. of Elections, 472 F.Supp.3d 285 (E.D. Va. 2020) (“Once a potential candidate submits his or her signatures, a Department of Elections employee manually checks the name, address, and partial social security number, if given, associated with each signature against the voter registration database to ensure that it is a qualified voter's signature.”).
  73. See Blankenship v. Blackwell, 817 N.E.2d 382 (Ohio 2004).
  74. See Anderson v. Celebrezze, 460 U.S. 780, 790-92 (1983) (noting the difficulties early petition filing deadlines present to independent candidates, at least in a presidential election).
  75. E.g., Lee v. Keith, 463 F.3d 763, 772 (7th Cir. 2006) (“Accordingly, we hold that the ballot access restrictions Illinois places on independent General Assembly candidates—the early filing deadline and the 10% signature requirement, together with the corresponding restriction disqualifying an independent candidate's petition signers from voting in the primary—combine to severely burden Lee's First and Fourteenth Amendment rights as a candidate and voter.”).
  76. See Storer v. Brown, 415 U.S. 724, 745-46 (1974) (noting independent candidates may be independent because they do not wish to be a part of a party structure and organization and thus should not be forced to adopt party attributes to be eligible for office).
  77. See Jenness v. Fortson, 403 U.S. 431, 442 n.28 (1971) (citing Williams v. Rhodes, 393 U.S. 23, 47 n.10 (1968) (Harlan, J., concurring in result)). In addition to Justice Harlan’s concurrence, the opinion itself noted that forty-two states required third parties to obtain supporting signatures from 1 percent or less of the electorate to achieve ballot access. See Williams, 393 U.S., at 33 n.9. See infra Chapter 3: State Regulations that Affect Political Parties for additional information on the constitutional aspects of public support requirements.
  78. Jenness, 403 U.S. 431, 432-34 (1971) (evaluating the candidacy requirements for independent party members, including the “a nominating petition signed by at least 5% of the number of registered voters at the last general election for the office in question” as well as “[t]he total time allowed for circulating a nominating petition is 180 days, . . . the same deadline that a candidate filing in a party primary must meet” and “no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted” to determine the statute’s constitutionality).
  79. Non-uniform petition signature requirements are ripe for attack. The ceiling, if one exists, on the signatures required to run for office in a large county should not be lower than the signature requirement resulting from an application of a percentage formula in smaller counties. See State ex rel. Newell v. Brown, 122 N.E.2d 105 (Ohio 1954) (finding unconstitutional a provision that required an independent candidate to meet a 7 percent signature requirement in eighty-seven counties but capping the number of signatures needed in the remaining county—the state’s largest—with a fixed number that approximated a signature requirement of less than one-half of one percent).
  80. See Lee, 463 F.3d at 772. Applying Anderson-Burdick framework during the COVID-19 pandemic, courts generally ruled against candidates challenging petition signature timelines. See, e.g., Whitfield v. Thurston, 468 F. Supp. 3d 1064 (E.D. Ark. 2020), appeal dismissed as moot, 3 F.4th 1045 (8th Cir. 2021) (holding that the signature requirements to get on the general election ballot did not violate the First Amendment); Bond v. Dunlap, No. 1:20-CV-00216-NT, 2020 WL 4275035 (D. Me. July 24, 2020), appeal dismissed, No. 20-1971, 2020 WL 9211021 (1st Cir. Oct. 27, 2020) (denying request for emergency injunctive relief to prevent the enforcement of the candidate ballot signature requirement).
  81. Celebrezze, 460 U.S. at 790-92. The court held that the requirements for independent or third-party candidates to meet earlier petition filing deadlines than the deadlines applicable for candidates affiliated with political parties that are granted automatic ballot access are unconstitutional burdens on the voting and associational rights of the independent or third-party candidate’s supporters. Id. After the primary elections, voters know their options and if they would prefer additional candidates. If petition deadlines are before the primary elections, voters who are dissatisfied with the results of the primary are unable to seek an alternative candidate who more closely aligns with their political philosophy. Id. at 804-05.
  82. See Storer, 415 U.S. at 740-41(“[A] State may confine each voter to one vote in one primary election, and that to maintain the integrity of the nominating process the State is warranted in limiting the voter to participating in but one of the two alternative procedures, the partisan or the nonpartisan, for nominating candidates for the general election ballot.”).
  83. See Celebrezze, 406 U.S. 780.
  84. The Supreme Court appears to approve of 1 percent signature requirements. See Jenness, 403 U.S. at 442 n.28 (1971) (citing Williams v. Rhodes, 393 U.S. 23, 43 n.10 (1968)).
  85. See generally id.
  86. Id.
  87. Id. The court also noted that write-in votes were not limited, the petition submission deadline was the same as the deadline for political parties to submit the name of their nominee, and independent candidates had 180 days to circulate their petitions.
  88. See Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986).
  89. E.g., OKLA. STAT. ANN. tit. 11, § 16-111 (West 2021); ALA. CODE § 17-13-5(c) (2021); S.D. CODIFIED LAWS § 12-6-9 (2021).
  90. OKLA. STAT. ANN. tit. 11, § 16-111 (2021).
  91. Id.
  92. See generally Foster v. Love, 522 U.S. 67, 70 (1997) (holding that Louisiana's October “open primary” conflicted with federal law when it led to the “election” of a congressional candidate prior to the federal election day).
  93. They can include requiring candidates to pay filing fees and limiting a candidate’s ability to change political parties, run for more than one office at a time, or run for new elective office while holding a government job.
  94. Bullock v. Carter, 405 U.S. 134 (1972) and Lubin v. Panish, 415 U.S. 709 (1974). In Lubin, the court found that the filing fees meant that indigent voters were unlikely to be able to support an indigent candidate because the high filing fees would prevent the indigent candidate from qualifying from office. 415 U.S. at 718. Belitskus v. Pizzingrilli, 343 F.3d 632 (Ct. App. 3d 2003). But see Biener v. Calio, 361 F.3d 206 (Ct. App. 3d 2004) (holding that a $3,000 filing fee does not violate Qualifications Clause, and candidate did not have standing to sue on behalf of near indigent candidates who were not able to file for the indigency exception).
  95. The filing fee at issue in Bullock was $8,900 in 1972, or the equivalent of more than $63,000 in 2022. Bullock, 405 U.S. at 145. The filing fee at issue in Lubin was less, only $875 in 1972 (or the equivalent of $5,935 in 2022). Lubin, 415 U.S. at 710. Lubin wanted to run for Los Angeles County supervisor, which required the payment of a nonrefundable fee of $701.60 (equivalent to $4,755 in 2022) before the clerk would supply the forms necessary to begin the process. Id.
  96. Panish, 415 U.S. at 717.
  97. Bullock, 405 U.S. at 149.
  98. Id. at 138, 148-49; Panish, 415 U.S. at 710.
  99. Bullock, 405 U.S. 134.
  100. Panish, 415 U.S. 709 (noting that petition signatures could not substitute for the filing fees and that write-in candidacies also required payment of the filing fee or else the votes cast for the write-in candidate would not be counted); Bullock, 405 U.S. 134 (noting that neither write-in voting nor petition signatures substituted for payment of the filing fee).
  101. Panish, 415 U.S. at 718 (noting that requiring indigent candidates to pay filing fees they cannot pay is unconstitutional without other means of ballot access). Some states allow candidates to file additional supporting signature petitions in lieu of paying the filing fee. Whether the opportunity to mount a write-in candidacy is an adequate substitute for ballot access conditioned on filing fees has not yet been determined. See id. at 719 n.5 (stating the dubiousness of suggesting a write-in candidacy option would be a reasonable alternative to a filing fee requirement in the absence of alternate means to get the candidate’s name on the ballot). But see id. at 723 (Blackmun, J., concurring) (suggesting that a filing fee might be constitutional if the state allowed write-in candidacies as a no-fee required alternative).
  102. E.g., OHIO REV. CODE ANN. § 3513.191 (West) (“No person shall be a candidate for nomination or election at a party primary if the person voted as a member of a different political party at any primary election within the current year and the immediately preceding two calendar years.”). Voters who wish to participate in a party primary may also need to satisfy disaffiliation requirements, although voter-targeted disaffiliation requirements are scrutinized more closely than those applicable to candidates. See infra Chapter 5: State Regulation of Voters for additional information on voter disaffiliation requirements.
  103. See Storer v. Brown, 415 U.S. 724, 736 (1974). Disaffiliation requirements generally do not unconstitutionally burden associational rights. See Celebrezze, 460 U.S., at 792 n. 12, (“Although a disaffiliation provision may preclude ... voters from supporting a particular ineligible candidate, they remain free to support and promote other candidates who satisfy the State's disaffiliation requirements.”).
  104. Id. (finding the state’s interest in the integrity of its political process justified a one-year party disaffiliation requirement before a candidate could gain ballot access to different party’s primary).
  105. Id. at 737 (noting why the Williams aggregation of election codes does not apply).
  106. Polly v. Navarro, 457 So.2d 1140, 1143 (Fla. Dist. Ct. App.1984) (upholding a six-month disaffiliation requirement because it was less restrictive than Storer).
  107. Storer, 415 U.S. 724.
  108. See State ex rel. Graham v. Bd. of Elections, 397 N.E.2d 1204 (Ohio 1979) (per curiam) (upholding application of the state’s four-year disaffiliation requirement in the absence of specific requirements in the charter city’s regulations).
  109. E.g., MICH. COMP. LAWS § 168.695 (1955) (“No person whose name was printed or placed on the primary ballots or voting machines as a candidate for nomination on the primary ballots of 1 political party shall be eligible as a candidate of any other political party at the election following that primary.”).
  110. Storer, 415 U.S. at 735.
  111. Id.
  112. Putnam v. Pyle, 232 N.W. 20, 24 (S.D. 1930) (per curiam) (noting it made no difference that the petitions supporting his independent candidacy were circulated by third parties).
  113. Fusion candidacies benefit both the third party and the major party. The third-party benefits from the increased visibility and influence it receives when the joint candidate receives votes under the third-party label. If these vote totals are high enough, the party may qualify for automatic ballot access in a future election. The major party benefits because sharing its candidate reduces the number of competing candidacies even as it increases the overall number of voters who are attracted to the candidate, thereby increasing its candidate’s chance of winning the election.
  114. E.g., MINN. STAT. § 204B.04(2) (2016) (“No individual who seeks nomination for any partisan or nonpartisan office at a primary shall be nominated for the same office by nominating petition.”).
  115. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 369-370 (1997).
  116. Id.
  117. See OHIO REV. CODE ANN. § 3513.052 (West 2010); see also MO. REV. STAT. § 115.351 (West 2007).
  118. See OHIO REV. CODE ANN. § 3513.052 (West 2010).
  119. See, e.g., Levy v. Jensen, 285 F. Supp. 2d 710 (E.D. Va. 2003), aff'd, 91 F. App'x 881 (4th Cir. 2004) (holding that the two-office restriction did not violate candidate's First or Fourteenth Amendment rights); Roberson v. Phillips Cty. Election Comm'n, 2014 Ark. 480, 1, 449 S.W.3d 694, 695 (2014) (holding that candidates cannot run for two state, county, or municipal offices if the elections are to be held on the same date as prescribed by state law).
  120. See Nichols v. Bacon, 108 N.Y.S.3d 71 (2019).
  121. See TEX. CONST. art. XVI, § 65 (stipulating that some officeholders automatically resign when they announce their candidacy for another office if their unexpired term of office is greater than one year and thirty days).
  122. Clements v. Fashing, 457 U.S. 957 (1982) (plurality).
  123. Id.
  124. Right to candidacy is often found when examining constitutional provisions in conjunction. See White v. Manchin, 318 S.E.2d 470, 488 (W. Va. 1984) (reaffirming that West Virginia’s constitution creates the “fundamental right to candidacy”); see also State ex rel. Billings v. City of Point Pleasant, 460 S.E.2d 436, 440 (1995) (“We agree with the relator that the West Virginia Constitution confers a fundamental right to run for public office. This right necessarily follows from several provisions. First, Article IV guarantees a right of political participation through Section 1's extension of the franchise to all adults (except those of unsound mind or under a felony conviction) and through Section 4's use of the Section 1 voter eligibility criteria to determine eligibility for public office.”).
  125. See ALA. CONST. art. IV § 59; TEX. CONST. art. III, § 18; OKLA. CONST. art. V, § 23.
  126. See State ex rel. Todd v. Reeves, 82 P.2d 173 (Wash. 1938) (finding that an increase in judicial pensions was not an “emolument,” thus a legislator who voted for the increase was not prohibited from running for a judgeship).
  127. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
  128. Cawdrey v. City of Redondo Beach, 19 Cal. Rptr. 2d 179 (Cal. Ct. App. 1993) (1993), as modified (June 1, 1993).
  129. See LA. STAT. ANN. § 18:492 (2010) (listing the false certification of a number of disclosures in violation of election laws as grounds for objecting to candidacy); 25 PA. CONS. STAT. § 3551 (1937) (stating that anyone who willfully violates any provision of the act “shall be forever disqualified from holding said office or any other office of trust or profit in this Commonwealth.”).
  130. State ex rel. Lukins v. Brown, 298 N.E.2d 132 (Ohio 1973).
  131. Or who decide to become candidates after petition or other deadlines have passed.
  132. See Burdick v. Takushi, 504 U.S. 428 (1992).
  133. Id. at 436 (concluding the three separate methods to obtain ballot access in Hawaii resulted in “easy access”).
  134. State statutes may define who is an appropriate party to bring this type of lawsuit.
  135. See generally Seltzer v. Orlando, 225 A.D.2d 456, 457 (1996). For an example of an administrative procedure that a plaintiff must go through, see, for example, N.Y. COMP. CODES R. & REGS. tit. 9, § 6201.3.
  136. E.g., TENN. CODE ANN. § 2-17-105 (2009) (requiring contests to be filed within five days from certification).
  137. Laches is an equitable doctrine (sometimes called an equitable defense) that courts use at the defendant’s request to dismiss lawsuits where the plaintiff’s delay in bringing the lawsuit prejudiced another party. See infra Chapter 10: Statutes of Limitations and Laches for additional information on laches.
  138. White v. Ind. Democratic Party ex rel. Parker, 963 N.E.2d 481, 489 (Ind. 2012) (“Our conclusion is that the Code places a burden on political campaigns to investigate and vet their opposition before the pre-election time limitations expire, but that is better than the alternative: that a challenger might ignore a known (or knowable) disqualification challenge before the election, wait to see who won at the polls, and then seek to set aside the results of the democratic process. Such a result is inconsistent with free elections and respect for voters' expressed preferences.”).
  139. Nominating petition problems include problems with the petition circulator’s qualifications, insufficient signatures, improper signature or address information, and incomplete or incorrect information on the petition itself. A number of courts have heard cases concerning fraudulent signatures. See, e.g., Haygood v. Hardwick, 973 N.Y.S.2d 711 (2013) (granting petition to invalidate nominating petition for fraudulent signatures); Burman v. Subedi, 101 N.Y.S.3d 523, leave to appeal denied, 127 N.E.3d 316 (2019) (granting petition to invalidate nominating petition for knowingly making false statements about fraudulent signatures). The presence of some fraudulent signatures does not always invalidate a petition. See e.g., Powell v. Tendy, 15 N.Y.S.3d 428 (2015) (holding that the petitioners did not meet their burden in proving that the petition was permeated with fraud); Overbaugh v. Benoit, 99 N.Y.S.3d 512 (2019) (striking fraudulent signatures but not invalidating the entire petition).
  140. Heleringer v. Brown, 104 S.W.3d 397, 405-06 (Ky. 2003) (Wintersheimer, J., concurring); see also Nolan v. Cook Cnty. Officers Electoral Bd., 768 N.E.2d 216 (Ill. App. Ct. 2002) (noting courts take a cautious approach in interpreting statutes that set candidate ballot access requirements); Evans v. State Election Bd. of State of Okla., 804 P.2d 1125, 1126 (Okla. 1991) (noting qualifications for ballot access were limited to the statutory language, thus the incumbent candidate’s infirmities were insufficient reasons to remove his name from the ballot).
  141. Russell v. Goldsby, 780 So. 2d 1048, 1051 (La. 2000).
  142. Id.
  143. Nolan v. Cook Cnty. Officers Electoral Bd., 768 N.E.2d 216, 220 (Ill. App. 2002) (noting it was not making a “sweeping statement” that substantial compliance would “satisfy all certification requirements” in the Election Code).
  144. See Russo v. Burns, 147 So. 3d 1111, 1114 (La. 2014) (“[O]nce an objector makes a prima facie showing of grounds for disqualification, the burden shifts to the defendant to rebut the showing.”).
  145. Goldsby, 780 So. 2d 1048.
  146. Darnell v. Alcorn, 757 So.2d 716, 719 (La. Ct. App. 1999).
  147. See In re Evans, 547 A.2d 344 (N.J. Super. Ct. Law Div. 1988).
  148. See State ex rel. Reynolds v. Howell, 126 P. 954 (Wash. 1912) (acknowledging different ideas about when a candidate’s eligibility is measured before deciding on the “majority view” that in the absence of specific language to the contrary, eligibility is measured at the time of election).
  149. State statutes may specify which approach to use. In addition, some requirements may be measured by the “snapshot” approach and others may be ongoing.
  150. See supra note 27; see also Cabrera v. Penate, 94 A.3d 50, 59–60 (2014) (“Accordingly, we hold that, to fulfill the party affiliation requirement of § 5–203, a putative candidate must be affiliated with the political party whose nomination he or she seeks at the time of filing the certificate of candidacy. . . . [W]e find such a deadline expressed within the text of § 5–203 itself, as well as various other sections of Title 5, which governs ‘Candidates.’”).
  151. See supra note 28.
  152. See supra note 29.
  153. See supra note 30.
  154. See supra note 31; see also Vowell v. Kander, 451 S.W.3d 267, 275 (Mo. Ct. App. 2014), opinion adopted and reinstated after retransfer (July 17, 2014) (“§ 115.563.2 states that ‘[a]ny contest based on the qualifications of a candidate for the office of ... state representative which have not been adjudicated prior to the general election shall be determined by the ... state house of representatives.’ This statute presupposes that the qualifications of a candidate may well not be adjudicated until after the general election, if ever.”).
  155. Note that even if the first approach would allow a candidacy to continue if the candidate who initially qualifies later fails to meet the qualifications for office, if the candidate win the election, the candidate’s qualifications to hold office can likely be challenged through a quo warranto action. See infra Chapter 11: Extraordinary and Equitable Relief for additional information on quo warranto.
  156. See Polly v. Navarro, 457 So.2d 1140, 1143 (Fla. Dist. Ct. App. 1985) (noting the candidate was not prejudiced in a seventy-four-day delay in filing because he was never eligible for the office and has not been prejudiced by noting its illegality); Melendez v. O’Connor, 654 N.W.2d 114, 117 (Minn. 2002) (per curiam) (holding that moving outside the district one wishes to represent leads to candidate ineligibility regardless of the timing of the eligibility challenge); White v. Manchin, 318 S.E.2d 470,479 (W. Va. 1984) (holding that a seven week delay in filing was insufficient to uphold a laches claim where any prejudice to the candidate was dwarfed by prejudice to the public if the candidate won the primary and was later determined to be ineligible).
  157. Note that in a pre-decision order, Justice ÷Stewart ordered Ohio to print a second set of ballots that included the one of the plaintiff’s names (the other plaintiff applied too late for this remedy) for use if the plaintiff won ballot access because oth÷erwise the Court’s decision might come too late to allow for a meaningful remedy. See Williams v. Rhodes, 393 U.S. 23, 34-35 (1968).
  158. Note that making changes to the ballot takes time, whether the ballot is paper or electronic. In addition, absentee ballots are frequently mailed one month or more before Election Day and should reflect the ballot in use on election day. In practice, absentee ballot-related deadlines operate as unofficial deadlines for many other decisions that impact elections.
  159. See Melendez v. O’Connor, 654 N.W.2d 114 (Minn. 2002) (per curiam) (holding that a candidate who was declared ineligible because he did not meet statutory residency requirements would remain on the primary ballot because of time constraints, but his name could not be placed on the general election ballot if he won the primary); see also White, 318 S.E.2d 470 (ordering certification of candidacy voided and no votes counted for the challenged candidate if his name could not be removed from the ballot where the candidate failed to meet durational residency requirements).
  160. See Hanlen v. Gessler, 333 P.3d 41, 43 (Colo. 2014) (“Under the election code, challenges to a candidate's eligibility can be raised by any eligible elector at multiple junctures in the election process, including post-election. But the election code requires issues regarding a certified candidate's eligibility to be determined by the courts.”).
  161. See Lubin v. Panish, 415 U.S. 709, 715-16 (1974).
  162. Ballot access regulations may also violate state constitutional protections.
  163. Celebrezze, 460 U.S. at 789 (quoting Storer v. Brown, 415 U.S. 724, 735 (1974)).
  164. Id.
  165. Courts in states that recognize a fundamental state constitutional right to candidacy may need to conduct a strict scrutiny analysis of all candidate ballot access regulations.
  166. See, e.g., Wood v. Quinn, 104 F. Supp. 2d 611 (E.D. Va.), aff'd, 230 F.3d 1356 (4th Cir. 2000); Barr v. Galvin, 626 F.3d 99 (1st Cir. 2010).
  167. See supra notes 4–8 and accompanying text.
  168. See, e.g., Green Party of Ga. v. Kemp, 171 F. Supp. 3d 1340 (N.D. Ga. 2016), aff'd, 674 F. App'x 974 (11th Cir. 2017).
  169. Occasionally, a court may be asked to declare an election premature and remove the elective office itself from the ballot. See Sprague v. Casey, 550 A.2d 184 (Pa. 1998).
  170. For information on what would occur if a Presidential candidate were to die, see Stephen Ohlemacher, What Happens If A Candidate for President Dies?, AP NEWS (Oct. 4, 2020), https://apnews.com/article/election-2020-donald-trump-constitutions-elections-us-supreme-court-91ce484b8046e6a555e172f42c4441f9; Brian C. Kalt, What Happens if a Presidential Candidate Becomes Incapacitated or Dies, THE ATLANTIC (Oct. 2, 2020), https://www.theatlantic.com/ideas/archive/2020/10/rules-exist-what-could-come-next-they-wont-prevent-total-chaos/616586/; Andrew Prokop, What Happens If a Presidential Candidate Dies?, VOX (Oct. 7, 2020, 7:30 AM), https://www.vox.com/21502447/trump-biden-death-what-happens. See also Brian C. Kalt, Of Death and Deadlocks: Section 4 of the Twentieth Amendment, 54 HARV. J. ON LEGIS. 101, 102 (2017) (noting the debate on how to handle the death of a House candidate).
  171. E.g., OHIO REV. CODE ANN. § 3513.30 (West); MINN. STAT. ANN. § 204B.12 (West).
  172. For example, statutes may require an election board to certify the victory of a withdrawn primary candidate before the political party is allowed to name a substitute for the general election ballot. See State ex rel. White v. Franklin Cnty. Bd. of Elections, 600 N.E.2d 656, 660 (Ohio 1992) (per curiam). Withdrawal and substitution requests are not automatically linked. This uncoupling discourages the last-minute switching out of candidates whose candidacies fail to capture the public’s interest.
  173. E.g., Martin v. Dicklich, 823 N.W.2d 336, 347 (Minn. 2012).
  174. E.g., State v. Brodigan, 142 P. 520, 523 (1914) (“[T]he writ should also issue prohibiting the secretary of state from allowing the name of Richard A. McKay to be withdrawn.”).
  175. See New Jersey Democratic Party, Inc. v. Samson, 814 A.2d 1028, 1039 (2002) (“What must be assessed is the actual impact on the administration of the election of allowing the substitution [past the 48-day statutory deadline before the election]; the cost and feasibility of printing and, when necessary, mailing new ballots; and, more particularly, the effect of carrying out those activities on overseas civilian and military absentee ballots.”).
  176. Heleringer v. Brown, 104 S.W.3d 397, 404-05 (Ky. 2003) (Stumbo, J., concurring) (noting the candidate’s investment in advertising and voter contact and the public’s investment in the election process as shown through ballot order determinations and printing had been made, absentee ballots mailed, primary election just a few days off as consideration in deciding that gubernatorial candidate could replace his disqualified lieutenant governor running mate in party primary so as to not render the public’s investment in the election and his candidacy a nullity); Schundler v. Paulsen, 774 A.2d 585, 591 (N.J. Super. Ct. App. Div. 2001) (justifying a candidate substitution made after the deadline for the same had passed on the public policy preference for contested elections).
  177. Helering, 104 S.W.3d at 405 (Wintersheimer, J., concurring) (determining the remaining candidate was an innocent party who had made a “sufficiently extensive investigation” into his running mate’s qualifications; thus, he should be allowed to substitute a new candidate rather than forego his candidacy).
  178. See Thomas v. Donitz, 251 N.Y.S.2d 177 (Sup. Ct. 1964) (denying the candidate withdrawal petitions because to withdraw would affect the rest of the slate of candidates because a withdrawal “could be used to imply that the designating petition is permeated with fraud”).
  179. Id. at 404.
  180. State ex rel. White v. Franklin Cnty. Bd. of Elections, 600 N.E.2d 656, 660 (Ohio 1992) (per curiam).
  181. Id. (holding the certification of withdrawn candidate’s victory creates a vacancy that is filled as the law directs).

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