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Election Law Manual
Chapter 3: State Regulations That Affect Political Parties

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Subchapter 1: Introduction

States have broad, but not unlimited, power to regulate the time, place, and manner of elections. This power derives from the U.S. Constitution (with respect to federal elections)1 and from their acknowledged interests in orderly elections, electoral integrity, minimized voter confusion, political stability, and electoral finality.2 By the same token, individuals have a constitutionally protected right to associate with like-minded others to advance their political goals.3 A common means to advance shared political goals is the organization of a political party.

With a proper showing of necessity to ensure fair and honest elections, states are permitted to set regulations that affect political parties.4 State regulations directly affect political parties when the state:

  • 1. regulates the political party itself,5
  • 2. establishes ballot access requirements,6 and
  • 3. conducts primary elections.7

These three areas of state regulation implicate political parties’ and voters’ First and Fourteenth Amendment voting, political speech, and associational rights. This chapter provides an overview of the state’s ability to regulate political parties and the attendant legal challenges.

Subchapter 2: State Regulation of Political Parties

Two of the many ways that states regulate political parties are by establishing requirements necessary to create a new political party and dictating party processes. Depending on the state, a group may be required to demonstrate it is a bona fide political party with a local and state party structure before it is permitted to run a candidate under a political party label.8 States may also require the party to hold party conventions or meetings and demonstrate a level of public support.9

If a new political party satisfies a state’s statutory requirements for establishing a recognized political party and election officials fail to recognize the party, a court can issue a writ of mandamus to compel the state officials to grant official recognition to the new party.10 Alternately, a plaintiff can claim that the state granted party recognition to a group of individuals who failed to satisfy all the  statutory requirements for a political party.11 In this instance, a court can be asked to order state officials to cancel the state’s recognition.12

More commonly, individuals who wish to establish a political party bring a constitutional challenge claiming the state’s requirements to do so are unconstitutionally burdensome.13 Courts evaluate constitutional challenges to a state’s regulation of First Amendment political associational rights by determining how severely the regulation burdens these rights.14 Under what is known as the Anderson-Burdick test,15 states must determine the severity of the burden placed on associational rights. If the burden is heavy, the state’s regulation of political parties must be narrowly tailored to serve a compelling state interest.16 If the burden is light, states must forward only a rational basis for imposing such regulation. States can usually justify regulations that impose lesser burdens on associational rights if the regulations are reasonable and non-discriminatory.17 No bright line separates the two categories—the Anderson-Burdick test is a sliding scale, requiring a balancing. The test requires courts to make “hard judgments”18 about how severely the regulation burdens associational rights.

In general, once political parties are established, states may not regulate their internal structure, governance, or policymaking.19 However, if a state can posit a relationship between its regulations and “fair and honest” elections,20 a state may usually: (1) enact laws that set voter eligibility requirements, including eligibility to participate in a party’s primary election; (2) require that a political party’s candidates be citizens; and (3) specify whether the party must use a primary election or nominating convention to select its general election candidates.21

States may generally regulate these areas even though the party might prefer to make other choices.22

Subchapter 3: Selection of the Party Nominee

States may structure and monitor the methods political parties use to select their candidates.23 While some states require parties to use primary elections to determine their candidate for the general election ballot,24 other states allow political parties to use party conventions or party caucuses instead.25 States also have latitude in regulating voter participation in political party primary elections because of the state’s interest in electoral stability and integrity.26

However, when the state-required selection process for a party nominee conflicts with national party guidelines, the latter prevail, at least when the selection of the party’s electors to its presidential nominating convention is at stake. For example, states cannot mandate voters be registered to a specific party to vote in its primary if a party permits independent voters to vote in their primary.27 Similarly, states cannot mandate the participation of nonaffiliated voters in a party’s primary election. 28 In addition, the U.S. Supreme Court determined that national political parties are not required to seat delegates chosen in compliance with state law, but in violation of national party rules 29 and states may not tell a political party which individuals will serve as its delegates to the party’s presidential nominating convention.30

Regardless of whether the state, a political party, or a private association actually conducts the primary election, primary elections are state functions with constitutional protections for the right to vote, including the right to have one’s vote counted.31 States are complicit if they allow political parties to discriminate in granting voting rights.32 Private associations are state actors when they select a political party’s general election nominee and, as such, are subject to the same Constitutional requirements applicable to the state.33 Thus, private associations and political parties cannot exclude primary voters on account of their age,34 race, or sex.

Primary elections currently 35 follow one of three formats:

  • open,36
  • closed,37 or
  • semi-open/semi-closed.38

Legal challenges to primary elections tend to involve constitutional attacks on primary election regulations, especially regarding limits on who may vote in the primary. States may not require political parties to open their primaries to all registered voters 39 and may not prohibit political parties from allowing independent voters to participate in a political party’s primary election if the party wishes to do so.40 States may, however, restrict primary election participation to registered party members and independent or non-affiliated voters, and deny participation by voters affiliated with a different political party, even if the political party sponsoring the primary election wants to allow all voters to participate.41

If a political party uses a primary election to determine its general election nominee, its candidates’ names must generally appear on the primary election ballot. 42 Because the U.S. Constitution does not guarantee an absolute right to use the ballot for political association,43 states need not prove actual voter confusion, ballot overcrowding, or a history of frivolous candidacies before they enact ballot access restrictions.44

Subchapter 4: Party Ballot Access for the General Election

Unless candidates run for office as independents or the election is non-partisan, candidates run under a political party label. Before states grant ballot access to a political party’s candidates, states may require the party to demonstrate it has the public’s support as indicated by signature petitions, party-affiliated voter registrations, or previous electoral success.45

State ballot access regulations restrict all political parties but are typically of most concern to third parties. 46 While the major political parties—and some individual minor parties—are guaranteed ballot access because of past demonstrations of support,47 most third parties are not.48 Political parties without guaranteed ballot access must expend considerable resources seeking ballot access.49

In general, four categories of political parties may attempt to gain ballot access for their candidates during a partisan election:

  • major,
  • minor,
  • small, and
  • new.

The Democratic and Republican parties are the two major national political parties, although other parties may achieve major party status in individual states.50 Major political parties have automatic access to the general election ballot for every partisan office if the party decides to run a candidate.51

Pursuant to state statute, minor political parties are established political parties that qualify for automatic ballot access for some partisan offices because of past levels of voter support for their candidates or because a threshold number of the state’s voters registered as members of the party.52 Unlike major political parties, minor parties have not demonstrated sufficient public support to automatically qualify a candidate for the ballot for all partisan offices.53 If minor parties do not have automatic ballot access for a particular office, their minor party status may nonetheless allow them to qualify their candidate under less stringent requirements than those applicable to small or new political parties.54

Small political parties may be established local, regional, or national parties that regularly run candidates for office, but do not poll sufficient voter support in any election to qualify for automatic ballot access for any partisan office and must re-qualify for ballot access every election cycle.55

New political parties are those that have not yet qualified a candidate for the ballot.56

Courts are likely to hear ballot access challenges in two contexts, both of which occur prior to the election. In the first, the dispute concerns whether the party fully complied with the requirements such that ballot access should be granted. In the second, the party challenges the constitutionality of the access regulation itself.

 

A. Compliance-based Challenges

Compliance-based challenges arise in several contexts. First, a party candidate may contest the primary election results or the political party’s nomination process. 57 In general, absent a primary election contest, courts refuse to become involved in intra-party disputes over who should represent the party in the general election.58 If the political party uses a convention or caucus permitted by state law to select its nominee, then the party’s choice is generally considered an internal party matter best decided by the party itself, especially when multiple individuals or groups claim they speak for the party.59 In general, intra-party disputes over which faction is entitled to use the official emblem is settled within the party and does not involve the courts.60

Second, aggrieved individuals—usually candidates, but also voters as state statutes allow 61 — may challenge election officials’ decision to grant or deny ballot access to a political party’s candidate, with one side claiming all statutory requirements were met while another claims they were not.62 The alleged deficiencies may involve candidate qualifications,63 compliance with petition requirements, or the prospective political party’s ability to satisfy statutory requirements to become established and to demonstrate a party structure.64 Because election officials usually lack discretion to deny ballot access to a political party or its candidate that met all ballot access requirements,65 the court is generally able to issue a writ of mandamus to compel election officials to add a candidate’s name to the ballot when it was denied in error.66 The court may also be able to enjoin the use of a ballot that lists an unqualified candidate.67

Third, because primary election and general election ballot access are usually separate processes, a third party may dispute the state’s failure to allow its candidate’s name to appear on the general election ballot because the candidate failed to garner sufficient votes to qualify.68 If the court finds that the political party fulfilled the public support requirements, it can order election officials to add the party’s candidates’ names to the general election ballot.69

 

B. Constitutional Challenges

In addition to compliance-related challenges, political parties may challenge the constitutionality of a state’s ballot access regulations. Although the state need not remove all hurdles facing third parties,70 the state’s ballot access requirements should be reasonable and allow ballot access that is “genuinely open to all.” 71 A state’s legitimate interests in regulating elections mean the regulations will necessarily burden individuals’ rights to vote and associate for political purposes.72 Thus, no “ litmus-paper test” exists to separate valid from invalid state regulations,73 nor is strict scrutiny the appropriate level of review for all election regulations.74

Courts evaluating constitutional challenges to political party ballot access use the Anderson-Burdick test described in Section II of this Chapter.75 Courts have declared state ballot access regulations unconstitutional when their combined effect made it impossible for new political parties to gain ballot access regardless of the party’s widespread public support.76 For example, the U.S. Supreme Court applied strict scrutiny and found an unconstitutional infringement on associational rights by state ballot access regulations that:

  • forbade independent candidacies,
  • required new political parties to obtain supporting signatures from 15% of the voters in the last gubernatorial election (while the Democratic and Republican parties only needed to obtain 10%),
  • required nominating petitions be signed by individuals who had never voted before, and
  • required the new party’s nominating convention delegates to have been unaffiliated with any political party for four years.77

In another ballot access challenge, the First Circuit Court of Appeals applied strict scrutiny and overturned a regulation in Puerto Rico that required new political parties to have each of the 100,000 required petition signatures individually notarized.78 The notarization requirement severely burdened the political party’s rights because it:

  • inserted a third party—the notary—into the communication channel between the petition circulator and voter,
  • reduced significantly the political party’s likelihood of success because state regulations created entry barriers to potential notaries, thereby limiting total available notaries
  • added at least $1,500,000 to the cost of ballot access.79

In contrast to the above examples where courts applied strict scrutiny, the U.S. Supreme Court held that the state’s interests in promoting political stability and electoral integrity were sufficiently weighty to permit it to prohibit fusion candidacies.80 Fusion candidacy prohibitions are constitutional because they do not prevent a political party or its members from endorsing, supporting, or voting for its favorite candidate, nor do they interfere with the party’s internal structure governance, or policymaking ability.81

Subchapter 5: Conclusion

States have the power to regulate political parties, determine the manner in which they choose their nominee, and set ballot access requirements for both the primary and general elections. Individuals and political parties can challenge candidate qualifications alleging ballot access or party recognition requirements were not met. Courts apply a sliding-scale approach to determining the level of scrutiny for constitutional challenges, depending on the severity of the restriction. In both scenarios, courts are often faced with conflicting interests of protecting individual rights and states’ authority to set the time, place, and manner of elections.

Footnotes

  1. U.S. CONST., art. I, § 4 (congressional elections), art. II, §1 (presidential elections).
  2. See Storer v. Brown, 415 U.S. 724, 730 (1974) (noting “substantial regulation” of elections is necessary to ensure they are fair, honest, and orderly) and supra Chapter 2: State Regulation of Candidacies and Candidate Ballot Access.
  3. U.S. CONST. amend. I.
  4. See Eu v. San Francisco Democratic Comm., 489 U.S. 214, 231 (1989).
  5. See, e.g., UTAH CODE ANN. § 20A-8-401 (West 2019) (bylaws for registered parties); ARIZ. REV. STAT. ANN. § 16-803 (2019) (provides guidelines for filing petition for party recognition).
  6. For a comprehensive list of ballot access requirements for a presidential election, see State Laws Regarding Presidential Ballot Access for the General Election, Nat. Ass’n of Sec’ys of State (Jan. 2020), https://www.nass.org/sites/default/files/surveys/2020-07/research-ballot-access-president-Jan20_0.pdf.
  7. See, e.g., ALA. CODE § 17-13-3 (2019); OR. REV. STAT. § 254.365 (2008).
  8. For example, in Illinois, to become an established party, the political party must poll more than 5% of the entire vote cast within the territory. 10 ILL. COMP. STAT. 5/10-2 (2019).
  9. American Delta Party v. Wyman, 488 F. Supp. 3d 1018, 1026 (W.D. Wash. 2020).
  10. State ex. rel Fockler v. Husted, 82 N.E.3d 1135, 1135 (Ohio 2017) (denying writ because they did not fulfil statutory requirements); States’ Rights Democratic Party v. State Bd. of Elections, 49 S.E.2d 379, 382 (N.C. 1948).
  11. Hoskins v. Howard, 59 So. 2d 263, 264-65 (Miss. 1952).
  12. Id.
  13. See, e.g., Libertarian Party of Tennessee v. Goins, 793 F.Supp.2d 1064, 1067 (M.D. Tenn. 2010); Citizens to Establish a Reform Party in Arkansas v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996).
  14. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
  15. It was first established in Anderson v. Celebrezze, 460 U.S. 780 (1983) and later refined in Burdick v. Takushi, 504 U.S. 428 (1992).
  16. Clingman v. Beaver, 544 U.S. 581, 586 (2005).
  17. Id. at 587.
  18. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997) (quoting Storer v. Brown, 415 U.S. 724, 730(1974)).
  19. See id. at 363.
  20. Eu v. San Francisco Democratic Comm., 489 U.S. 214, 231 (1989) (noting that a state’s interest in “fair and honest” elections is a subset of the state’s interest in electoral integrity) (citing Storer v.\ Brown, 415 U.S. at 730).
  21. See id. at 231.
  22. See Timmons, 520 U.S. at 364 (noting elaborate, empirical justification of the strength of the state’s justification is unnecessary and that “[l]egislatures ... should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights”) (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195-96 (1986)).
  23. Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000). The Tenth Circuit, for example, upheld a Utah law that permitted candidates to gain access to the party’s primary election ballot through a signature gathering process in addition to the traditional party nominating convention against claims by the state’s Republican party that the law violated its First and Fourteenth Amendment associational rights. Utah Republican Party v. Cox, 892 F.3d 1066, 1072, 1076 (10th Cir. 2018); see also UTAH CODE § 20A–9–101(12)(c); Cox, 373 P.3d at 1287 (Utah 2016) (interpreting UTAH CODE § 20A–9–101(12)(c) to offer the member, rather than the party, the choice). Using the Anderson- Burdick test, the court found that the law was only minimally burdensome as it still permitted the party to advertise its choice of primary candidate to its members and did not regulate an internal process, but rather one that interacted with state run and funded election systems. Id. at 1078-80. As such, the state’s interests in “managing elections in a controlled manner, increasing voter participation, and increasing access to the ballot” predominated over the minimal burdens imposed. Id. at 1084-85.
  24. See e.g., UTAH CODE ANN. § 20A-9-403 (West 2021).
  25. See e.g., IOWA CODE § 43.4 (2010).
  26. Clingman v. Beaver, 544 U.S. 581, 596 (2005) (citing state interest in preventing “the organized switching of blocs of voters from one party to another in order to manipulate the outcome of the other party's primary election”) (quoting Anderson, 460 U.S. at 788–789, n. 9).
  27. Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986).
  28. California Democratic Party v. Jones, 530 U.S. 567 (2000).
  29. Democratic Party of U. S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981).
  30. Cousins v. Wigoda, 419 U.S. 477, 483 (1975).
  31. United States v. Classic, 313 U.S. 299 (1941); Curtis v. Oliver, 479 F.Supp.3d 1039, 1127-1128 (D. N.M. 2020).
  32. Smith v. Allwright, 321 U.S. 649, 661-662 (1944).
  33. Terry v. Adams, 345 U.S. 461, 475 (1953).
  34. States may not exclude primary voters if they are at least eighteen years old – although states may permit younger persons to participate.
  35. In the past, some states held blanket primaries in which voters received one ballot that combined all the candidates for all the offices. Blanket primaries allowed voters to split tickets by mixing and matching the different political parties’ candidates. The Supreme Court declared blanket primaries unconstitutional because they violated political parties’ right to “not associate” with members of other political parties. See Cal. Democratic Party, 530 U.S. at 567.
  36. An open primary allows participation by any qualified voter, regardless of party registration, but the voter is limited to only one party’s ballot. Thus, a voter cannot split a ticket among multiple parties.
  37. In a closed primary, only registered party members can vote.
  38. Semi-closed/semi-open primaries allow independent and non-party affiliated voters to participate in a party primary if the party’s own rules allow it. Voters who are registered party members are restricted to voting in their own party’s primary.
  39. Cal. Democratic Party v. Jones, 530 U.S. 567, 576 (2000).
  40. Tashjian v. Republican Party of Conn., 479 U.S. 208, 208 (1986) (finding an unconstitutional violation of the state Republican party’s right of political association by a state law that prohibited the party from allowing independent voters to participate in the party primary).
  41. Clingman v. Beaver, 544 U.S. 581, 581 (2005).
  42. If the candidate’s name does not appear on the primary ballot, state regulations determine whether a write-in candidacy will be recognized by the state.
  43. Burdick v. Takushi, 504 U.S. 428, 433 (1992).
  44. Munro v. Socialist Workers Party, 479 U.S. 189, 194-195 (1986).
  45. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 366 (1997). See also Clements v. Fashing, 457 U.S. 957, 965 (1982) (plurality) (citing Storer v. Brown, 415 U.S. 724 (1974); Am. Party of Tex. v. White, 415 U.S. 767 (1974) and Jenness v. Fortson, 403 U.S. 431 (1971)).
  46. In popular parlance, all political parties other than the Democratic and Republican parties are third parties. Thus, the third-party label applies equally to established minor parties, small parties, and the new political parties that occasionally arise.
  47. Although ballot access is guaranteed for the major party’s candidate, candidate ballot access restrictions, such as disaffiliation, age, experience, residence, or citizenship requirements impact the candidate selection choices of major parties as well as third parties. See Thebeau v. Smith, 148 So.3d 233 (La. Ct. App. 2014) (when the qualifications for an office include a residency or domicile requirement, requirement is mandatory); ALASKA STAT. § 15.25.105 (2021) (sets age requirement); TEX. ELEC. CODE ANN. § 141.001 (West 2020).
  48. See, e.g., Renée Steinhagen, Giving New Jersey's Minor Political Parties A Chance: Permitting Alternative Voting Systems in Local Elections, N.J. LAWYER at 15, n.15 (Aug. 2008) (citing N.J.S.A. 19:1-1) (“[N]o third party has met New Jersey's current standard since it was established in 1920; and New Jersey remains the only state in . . . which a third party has not been recognized since that time”).
  49. Celia Curtis, Cross-Endorsement By Political Parties: A “Very Pretty Jungle”?, 29 PACE L.R. 765, 781-82 (2009) (when they do “manage to circulate a petition and receive the required number of signatures, those signatures can be challenged and the candidate will then have to go through a court battle, which can be very costly. . .”) (quoting Amber J. Juffer, Note, Living in a Party World: Respecting the Role of Third Party and Independent Candidates in the Equal Protection Analysis of Ballot Access Cases, 56 DRAKE L. REV. 217, 220-21 (2007)).
  50. Minnesota recognizes four major political parties: Democratic-Farmer-Labor Party, Grassroots- Legalize Cannabis Party, Legal Marijuana Now Party, and Republican Party of Minnesota. Political Parties, Office of the Minn. Sec’y of State Steve Simon (2021), https://www.sos.state.mn.us/elections-voting/how-elections-work/political-parties. Colorado amended their ballot position statute to reserve the top tier of the ballot for up to ten major parties. Libertarian Party of Colorado v. Buckley, 8 F. Supp.2d 1244 (D. Colo. 1998).
  51. See, e.g., COLO. REV. STAT. § 1-5-404 (2019) (reserving the first group on the ballot for major\ parties); NEV. STAT. X§ 293.263 (2021) (providing details for major party primary ballots).
  52. Jessica A. Levinson, Is the Party Over? Examining The Constitutionality of Proposition 14 As It Relates To Ballot Access For Minor Parties, 44 LOY. L.A. L. REV. 463, 479-496 (2011) (explaining constitutionality of minor party ballot access requirement).
  53. See Steinhagen, supra note 47.
  54. In Wyoming for example, a new political party must circulate a petition; the secretary of state will determine whether sufficient signatures have been obtained. WYO. STAT. ANN. § 22-4-405 (2021). Minor political parties need sufficient party officers in place and may then nominate their candidates. WYO. STAT. ANN. § 22-4-302 (2021).
  55. Regional variations in party support mean that a minor political party in one state may be a small party in another or vice versa.
  56. See Citizens to Establish a Reform Party in Ark. v. Priest, 970 F. Supp. 690, 695 (E.D. Ark. 1996).
  57. See infra Chapter 9: Election Contests for additional information. See, e.g., Ex parte Baxley, 496 So. 2d 688 (Ala. 1986).
  58. See, O'Brien v. Brown, 409 U.S. 1, 4 (1972) (staying relief granted by the Court of Appeals because of a lack of precedent for such relief and the large public interest in allowing the political processes to function free from judicial supervision) (“It has been understood since our national political parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intra-party disputes as to which delegates shall be seated. Thus, these cases involve claims of the power of the federal judiciary to review actions heretofore thought to lie in the control of political parties.”).
  59. But see Jordan v. Kusper, 518 N.E.2d 432 (Ill. App. Ct. 1987). In this unique case, the court resolved an intra-party dispute over the identity of the official party nominee. Id. No one formally filed to run for the party’s nomination to a circuit court judgeship and the elections board certified the name of a write-in candidate even though the five votes he received did not satisfy statutory requirements to win. Id. A self-proclaimed candidate, who filed an untimely election contest, and a party-selected nominee challenged the write-in candidate’s certification to the general election ballot. Id. The court dismissed the election contest because it was filed by a non-candidate, dismissed the challenge by the party “nominee” because statutes required primary winners to be certified for the general election ballot, and upheld the certification of the write-in candidate. Id.
  60. Reform Party of Conn. v. Bysiewicz, 760 A.2d 1257, 1261 (Conn. 2000); Am. Indep. Party of Mich. (Morse-Smith Faction) v. Sec’y of State, 247 N.W.2d 17 (Mich. 1976).
  61. When statutes do not grant express a right to challenge these decisions, some courts have held that appellants do not have standing to sue. See, e.g., Thiel v. Oaks, 535 S.W.2d 1 (Tex. App. 1976) (“[H]is interest in seeing that unqualified candidates are not included on the primary ballot is not particular to him, but is shared with any other citizen constituting the general public. Appellant has no prospective right, protectible by temporary injunction, to avoid being challenged in the party primary by an unqualified candidate.”); Robinson v. Bowen, 567 F. Supp. 2d 1144, 1146 (N.D. Cal. 2008) (“[P]laintiff has no standing to challenge Senator McCain's qualifications. Plaintiff is a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best. Plaintiff has, therefore, no greater stake in the matter than a taxpayer or voter.").
  62. Before turning to the courts, the plaintiff may be required to exhaust all available administrative review options.
  63. See supra Chapter 2: State Regulation of Candidacies and Candidate Ballot Access for additional information.
  64. In one instance, a political party that was denied ballot access sued over the appropriate voter registration figures to use when determining if enough voters identified themselves as party members for the party to qualify for automatic ballot access. Peace & Freedom Party v. Shelley, 8 Cal. Rptr. 3d 497, 499 (Ct. App. 2004) (holding that counting only those voters in the active voter registration file was a “reasonable, nondiscriminatory restriction” that furthered protection of the integrity and stability of elections because the inactive file contained unreliable and duplicative information that the state was prevented from purging).
  65. If a political party is unable to qualify its candidate for ballot access under the party’s label, its candidates might nonetheless qualify to run as independents.
  66. 31B TEX. JUR. ELECTIONS § 25(3) (2021) (citing In re Parsons, 110 S.W.3d 15 (Tex. App. 2002)).
  67. See Polly v. Navarro, 457 So. 2d 1140, 1142 (Fla. Dist. Ct. App. 1984); Storer v. Brown, 415 U.S. 724, 736 (1974); Risner v. Harris Cty. Republican Party, 444 S.W.3d 327, 346 (Tex. App. 2014).
  68. Whittaker v. Mallott, 259 F.Supp.3d 1024 (D. Alaska 2017).
  69. See Williams v. Rhodes, 393 U.S. 23, 35 (1968) (allowing only third party to remain on the ballot and not mandating the inclusion of another because a large quantity of the ballots have already been printed and forcing a change could cause voter confusion such that Ohio citizens could be disenfranchised). Cf. Breck v. Stapleton, 259 F. Supp. 3d 1126 (D. Mont. 2017) (issuing a preliminary injunction to bar enforcement of and reduce the signature requirements but did not issue an order to add the candidate’s names on the ballot when many ballots had already been printed in a special election). But see, Libertarian Party of North Dakota v. Jaeger, 659 F.3d 687 (8th Cir. 2011) (denying plaintiff’s preliminary injunction).
  70. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997) (holding that while parties have the right to select their “standard bearer,” parties are not “absolutely entitled to have their nominee appear on the ballot as the party’s candidate.”).
  71. Lubin v. Panish, 415 U.S. 709, 719 (1974), distinguished by Crawford v. Marion, 553 U.S. 181 (2008) (holding that the Indiana Voter ID requirement did not substantially burden voters).
  72. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). See also Munro v. Socialist Workers Party, 479 U.S. 189, 193 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)). The Supreme Court has recognized the right of citizens to create and develop new political parties and the state may limit new parties’ access to the ballot only to the extent that a sufficiently weighty state interest justifies the restriction. See Norman v. Reed, 502 U.S. 279 (1992); Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1978).
  73. Celebrezze, 460 U.S. at 789 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
  74. Burdick v. Takushi, 504 U.S. 428, 433 (1992) (noting that strict scrutiny review for all election regulations would “tie the hands” of states in their efforts to ensure equitable and efficient elections).
  75. Supra Section II. The framework was first established in Anderson v. Celebrezze, 460 U.S. 780 (1983) and later refined in Burdick v. Takushi, 504 U.S. 428, 434 (1992) (“[A] court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against the ‘precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’”). See, e.g., Esshaki v. Whitmer, 813 F. App'x 170, 171 (6th Cir. 2020) (affirming the lower court’s Anderson-Burdick analysis to determine that the state’s strict enforcement of its ballot access requirements and its stay-at-home order during the COVID-19 pandemic imposed a serve burden on the plaintiff’s ballot access, requiring the application of strict scrutiny); Timmons, 520 U.S. at 364 (using the Anderson-Burdick test to determine that the burdens placed on political party’s ballot access rights by Minnesota’s antifusion laws are not severe and do not mandate strict scrutiny) (citations omitted); Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016) (using the Anderson-Burdick test to determine that Kentucky’s law requiring third parties to obtain voter petition signatures to access the ballot do not severely burden ballot access rights, and does not require strict scrutiny).
  76. Williams v. Rhodes, 393 U.S. 23 (1968) (holding that the combination of code provisions favoring established two parties and making it virtually impossible for a third party to qualify for ballot access was unconstitutional); Perez-Guzman v. Gracia, 346 F.3d 229 (1st Cir. 2003) (holding that the combination of burdens on third party ballot access—especially the requirement that every petition signature had to be notarized when only lawyers could serve as notaries—was unconstitutional when the government failed to demonstrate they were narrowly tailored to serve a compelling state interest).
  77. Williams, 393 U.S. at 25-26 (describing the Ohio law at issue).
  78. Perez-Guzman, 346 F.3d at 245.
  79. Id. at 240.
  80. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997). See supra Chapter 2: State Regulations of Candidacies and Candidate Ballot Access for additional information on fusion candidacies, where one person runs for an office as the nominee of two different political parties.
  81. Timmons, 520 U.S. 351.

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