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Ballot access is the standing granted by law to a candidate or political party to appear on voters' ballots.
Ballot Access in the United States of America
Overview of ballot access in the U.S.
Each State has its own ballot access laws to determine who may appear on ballots and who may not. According to Article I, Section 4, of the United States Constitution, the authority to regulate the time, place, and manner of federal elections is up to each State, unless Congress legislates otherwise.
The main rationale put forward by States for restricting ballot access has been the argument that setting ballot access criteria too low would result in numerous frivolous candidates cluttering the ballot, which would cause confusion and waste the time of voters. However, proponents of ballot access reform say that reasonably easy access to the ballot does not lead to a glut of candidates, and that, even where many candidates do appear on the ballot, as was the case in the crowded 2003 California recall, actual election results show that such crowding does not in fact confuse voters.
Historically, there were generally no restrictions on ballot access in the United States until after the introduction of the so-called "Australian ballot" beginning in the 1880's. The eighteenth century prevalence of "voice voting" gave way to paper ballots, but until the 1880's paper ballots were not officially designed and printed by the government but were instead privately produced "tickets" that were distributed (usually by political parties) to the voter, who would take the ticket to the polling place and deposit it in the ballot box. The 1880's reform movement that led to officially designed secret ballots had some salutary effects, but it also gave the government control over who could be on the ballot. As historian Peter Argersinger has pointed out, the reform that conferred power on officials to regulate who may be on the ballot carried with it the danger that this power would be abused by officialdom and that legislatures controlled by the established political parties (specifically, the Republican and Democratic Parties), would enact restrictive ballot access laws to influence election outcomes, for partisan purposes, in order to ensure re-election of their own party's candidates.
Perhaps the most prominent advocate of the 1880's ballot reform movement, Dean Wigmore, suggested that "ten signatures" might be an appropriate requirement for nomination to the official ballot for a legislative office. In the twentieth century, ballot access laws imposing signature requirements far more restrictive than Wigmore had envisioned were enacted by many state legislatures, often in response to election victories by Socialists, Communists, or other disfavored political organizations; in almost all of these cases, the two major parties framed the laws in such a way that the burdens created by these new ballot access requirements (usually in the form of difficult signature-gathering petition drives) fell on alternative candidates, but not on major party candidates. Proponents of more open ballot access argue that restricting access to the ballot has the effect of unjustly restricting the choices available to the voters and typically disadvantages third party candidates and other candidates who are not affiliated with the established parties.
State laws, the Constitution, and international human rights
State ballot access laws
Ballot access laws in the United States vary widely from state to state. A brief outline of such laws follows (NB: to be completed)
Constitutional dimensions of ballot access laws
State ballot access restrictions can affect fundamental constitutional rights, including:
- the right to equal protection of the laws under the fourteenth amendment (when the restrictions involve a discriminatory classification of voters, candidates, or political parties)
- rights of political association under the first amendment (especially when the restrictions burden the rights of political parties and other political associations, but also when they infringe on the rights of a candidate or a voter not to associate with a political party)
- rights of free expression under the first amendment
- rights of voters (which the Supreme Court has said are "inextricably intertwined" with the rights of candidates)
- property interests and liberty interests in candidacy
- other rights to "due process of law"
It has also been argued that ballot access restrictions infringe the following constitutional rights:
- the right to "petition" the government (this argument is sometimes raised to allege that signature-gathering requirements, or the rules implementing them, are unfairly restrictive)
- freedom of the press (which historically included the right to print ballots containing the name of the candidate of one's choosing);
- the right to a "republican form of government," which is guaranteed to each state (although this clause has been held not to be enforceable in court by individual citizens)
(NB: to be completed)
From a structural point of view, ballot access restrictions affect the most fundamental rights in a democratic society. (NB: to be completed)
The United States Supreme Court has upheld constitutional challenges to ballot access restrictions in a number of important cases, for example:
- Williams v. Rhodes, 393 U.S. 23 (1968)
- Anderson v. Celebrezze, 460 U.S. 780 (1983)
- Bullock v. Carter, 405 U.S. 134 (1972)
- Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)
- U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)
- Lubin v. Panish, 415 U.S. 709 (1974)
- Norman v. Reed, 502 U.S. 279 (1992)
Various state courts and lower federal courts have also upheld constitutional challenges to ballot access restrictions, for example:
(NB: to be completed)
On the other hand, a number of court decisions are routinely cited as supporting the principle that states have considerable leeway, if justified by legitimate and compelling interests, to regulate who may appear on the ballot. The Supreme Court case cited most often this effect is Jenness v. Fortson, 403 U.S. 431 (1971), where the Court declined to strike down a very restrictive ballot access law in Georgia.
International human rights law and ballot access
International agreements that have the status of treaties of the U.S. are part of the supreme law of the land, under Article VI of the United States Constitution.
- International Covenant on Civil and Political Rights, Art. 25
- Copenhagen Document, ¶¶6-8, Annex I to 1990 Charter of Paris
Another source of international human rights law derives from universally accepted norms that have found expression in resolutions of the U.N. General Assembly. Although the Universal Declaration of Human Rights is not binding under U.S. law the way a treaty is, this type of norm is recognized as a source of international law in such treaties as the Statute of the International Court of Justice, to which the U.S. is a party:
- Universal Declaration of Human Rights, Art. 21
(NB: to be completed)
Write-in status versus ballot access
Depending on the office and the state, it may be possible for a voter to cast a write-in vote for a candidate whose name does not appear on the ballot; but, it is extremely rare for such a candidate to win office. In some cases, write-in votes are simply not counted. Having one's name printed on the ballot confers an enormous advantage over candidates who are not on the ballot. The United States Supreme Court has noted that write-in status is absolutely no substitute for being on the ballot. One of the rare cases, and perhaps the most notable case, of a write-in candidate actually winning an election was Strom Thurmond's election as a write-in candidate to the United States Senate in 1954. More recent examples were the write-in election of Charlotte Burks to the Tennessee State Senate seat of her late husband, Tommy Burks, murdered by his only opponent on the ballot, and the write-in re-election of Mayor Anthony Williams of the District of Columbia. Each of these cases involved unique political circumstances, a popular and well-known candidate, and a highly organized and well-funded write-in education campaign.
Other obstacles facing third parties
The growth of any third political party in the United States faces extremely challenging obstacles, among them restrictive ballot access. Other obstacles often cited as barriers to third-party growth include:
- the role of corporate money in propping up the two established parties
- the allegedly related general reluctance of news organizations to cover minor political party campaigns
- politically motivated gerrymandering of election districts by those already in power, in order to reduce or eliminate political competition
- plurality voting and the absence of proportional representation
- the lack of an educated and organized voter base identifying with a fledgling political party.
Ballot Access in Australia
- New South Wales
- South Australia
- Western Australia
- Northern Territory
- Australian Capital Territory
"Ballot access" is listed under "Nomination" in this country.
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