Right to Run: Ballot access laws across the country exclude third party candidates
“The hardest thing to do is walk up to somebody and ask for a signature—not even to vote for me, just for a signature,” recalled former Marine Corps Sergeant James Hall in an interview with The Politic. He recounted the discomfort clearly, even though it had been almost seven years since he had run as an independent candidate in an Alabama special election for the House of Representatives.
He was already uncomfortable approaching strangers’ doors to ask for the confusing favor. Hall then had to explain to those worried citizens who let him in that signing was not a commitment to vote for him but would just help secure him a spot on the ballot. In over five thousand homes, he repeated the explanation to anyone who would listen.
Hall’s opportunity had come in mid-2013, when Republican Congressman Jo Bonner of Alabama’s First Congressional District announced early plans to resign in order to take a job at the University of Alabama. Hall, who considers himself “a political outsider” unrepresented by either major party, believed this might be the only chance he had to serve as a candidate “for all of us who aren’t represented.” In regular elections in Alabama, the incumbent Democrat or Republican or a successor of their choosing usually wins, but Bonner did not immediately endorse another candidate. Hall recalled thinking, “There might not be a better time.”
He had only three months from the date that the logistics of the special election were announced to satisfy requirements for an independent to get on the ballot. That meant collecting signatures from at least three percent of the number of citizens who voted in the most recent governor’s race—a total of about 6,000. Alabama’s Secretary of State, James R. Bennett, claimed (“disingenuous[ly],” Hall remarked with a snort) that the policy is fair because of the virtually unlimited amount of time a prospective candidate has to collect signatures before a future regular election. Hall’s few months felt very limited.
Though surrounding states suspend signature requirements for special elections, instead requiring from zero to a maximum of 100 signatures, Alabama law provides special elections no such exceptions.
By September, Hall had not collected the required number of signatures to make the cut. He did not get to check his name off in the voting booth.
This process is no mistake. Republican- and Democrat-run state legislatures can control who can and cannot be on a ballot—and have every incentive to utilize that power. All 50 states have laws that favor the entrenchment of Democratic and Republican parties, many of which have been on the books for more than a century. These laws come under meaningful challenge regularly, usually during urgent timeframes when lowercase-i independent or small party candidates want to run but meet insurmountable obstacles.
In an interview with The Politic, Ballot Access News editor Richard Winger noted that although voting rights in the country progressively improve, changes in ballot access have mostly been for the worse.
Winger traces difficulties for independent and small party candidates in ballot access back to 1889, when the Massachusetts government switched from the then-popular practice of candidates distributing their own ballots to a system in which the government printed standardized ballots.
Today’s two-party silencing of independent candidates and small parties, he explained, solidified during the 20th century. Under President Wilson and concurrent to rapidly-spreading communism in the Soviet Union in the late 1910s, some states specifically banned the Communist Party by name or required all parties to sign an oath saying that they didn’t support the Communist-endorsed violent overthrow of the government. Again during the Great Depression, state governments ramped up efforts to exclude small parties considered to have communist leanings. These ultimately had the effect of limiting all parties outside the mainstream.
The 1931 Illinois full-slate law, for example, required any minor party wishing to run one candidate to present a candidate for every office on the ballot—an often insurmountable hurdle. A federal appeals court only recently struck that law, in 2017.
Another wave of laws limiting ballot access came in the 1960s in response to the unprecedented success of independent presidential candidate George Wallace—known at the time as a notorious racist and segregationist—who captured a shocking 13 percent of the vote. Winger explained, “A lot of well-meaning Democrats and Republicans saw how well Wallace had done and made ballot access laws to prevent that kind of thing from happening.”
Bill Redpath, former Treasurer and Chair of the Libertarian Party’s National Committee and a current At-Large Representative, explained in an interview with The Politic that repression of independent and small party candidates has created a system in which it is often difficult for citizens to cast meaningful votes. Voters often must choose between the candidate they really want to vote for and someone they may see as the “lesser of two evils” between the Democratic and Republican candidates.
“When Marines get food in the field,” Hall recalled, “the lowest-ranked Marine eats first. The highest ranked eats last.” To him, that’s how it should be. But the government, he believes, works the opposite way: It is made up of a “political elite,” a “separate class” removed from the average person’s experience.
Hall tried everything he could in the months before the deadline, aided by the work ethic and determination he credits to his time in the marines. After hours working to get signatures, he would plead with Bennett to reduce the number of signatures required.
He was not alone. Alabama has not had an independent candidate in a special election since 1893, when the state first began printing ballots in line with Massachusetts’ lead. Ballot Access News argues this hints at a constitutional issue: In two 1970s cases, the Supreme Court found that independents never running is indicative that the barriers to running are too high. Indeed, in 1964 the Supreme Court ruled in Reynolds v. Sims that that “the right to vote freely for the candidate of one’s choice is of the essence of society, and any restrictions on that right strike at the heart of representative government.”
Despite what a federal judge referred to as Hall’s “Herculean effort,” it would have been impossible to collect 6,000 signatures in three months—especially while he kept his full-time job as a production supervisor for the business services Cintas Company, which he needed to make ends meet.
The hurdles did not end there. In the run-up to elections, political organizers often prevent potential independent and small party candidates from participating in debates and other significant voter-education opportunities, based on the argument that these potential candidates will not make it onto the ballot.
Alabama Secretary of State John Merrill explained in an interview with The Politic that ballot access laws just simplify the process: An independent candidate who falls short of the signature threshold won’t win the race anyway. “Let’s say 51,000 [signatures] is the accurate number. Both the Democratic candidate and the Republican candidate in our state will get more than 51,000 straight-ticket votes. So, [an independent] has absolutely no chance, period, to win.”
In 2016, Hall filed a petition against Merrill for limiting his right to run and was joined in his suit by N.C. “Clint” Moser Jr., who initially sought to run as an independent candidate but managed to collect only 750 signatures. Moser was joined by Joshua Cassity, then the Chairman of the Constitution Party of Alabama, who had decided not to run a candidate, experience telling him that ballot access would prove futile. Both filed sworn declarations on behalf of Hall.
Hall, Moser, and Cassity—like Winger—do not claim that no requirements should exist for candidates to be on the ballot. Rather, they are concerned about specific laws which make running near-impossible. Redpath calls these laws “utterly ridiculous, un-American, and anti-democracy.”
Alabama’s ballot access laws are notoriously among the country’s worst, but they are not the only ones. As recently as 2019, the Supreme Court refused to hear a case challenging a California law that requires independent presidential candidates to collect 200,000 signatures in 105 days. A Delaware law that prevented an independent from being appointed to most judicial posts was contested by a former registered Democrat whom the state claimed was guilty of “self-injury” for leaving the party also went to the highest court: After losing the case at the 3rd Circuit, Delaware went to the extreme of appealing to the Supreme Court in an effort to keep the law on the books. This January, nine progressive Democrats signed “An Open Letter to the Green Party for 2020,” urging the party not to campaign for president.
Obstacles vary in method and severity by state. The list of creative barriers enacted by states to exclude independent and small-party candidates is extensive, including exorbitant filing fees, early filing deadlines, and Alabama’s law only charging minor parties $34,000 to get a copy of the state’s voter registration list—a vitally important tool. In some states, small parties need to get 20 percent of the vote every two years to stay on the ballot, which is arguably as important as getting on the ballot in the first place.
When asked whether independent party candidates face any notable obstacles in getting on the ballot, Merrill responded, “Oh, absolutely not.” He explained that those candidates who failed to gain signatures simply weren’t qualified to begin with: “To run a competitive race, you have to be eligible to run a competitive race–and that’s by having the necessary financial resources and field support to show your electability.”
Merrill is joined by staunch defenders of stringent ballot access laws, who argue that these laws are in the best interest of the state that passes them by limiting ballot-crowding and voter confusion. But according to ballot access law challengers, such as Hall, “you’ve got to be in one of the two clubs to participate…. That restricts access, if you want to boil it down to the simplest point.”
When the Secretary of State filed a motion to dismiss Hall’s case for mootness, a federal trial court in the state rejected the motion. The court recognized that Hall’s circumstances fell within the “capable of repetition, yet evading review” exception, without which election law could rarely be changed. In an historic victory, following years of litigation, Hall originally triumphed over Alabama’s ballot access laws in an early suit, but the U.S. Court of Appeals for the 11th Circuit reversed, by a two-to-one decision, in 2018. The dissenting judge wrote, “No other court in the country” would have ruled as the 11th Circuit majority had just done.
Many of the decisions upholding stringent ballot access laws rely on Jenness v. Fortson, a 1971 case in which the Supreme Court upheld Georgia’s signature and early deadline requirements that complainants argued was unconstitutional. Courts rely on Jenness in knee-jerk fashion.
According to Winger, Jenness was a flawed decision that has “made it possible for state legislators to cripple minor parties and independent candidacies.” Only four minor parties have polled even three percent for president in the past 100 years, and no minor party has had a seat in Congress in decades. Had Jenness always been in effect, according to Winger, it would have prevented the likes of Theodore Roosevelt, the Progressive Party nominee, from running for office.
“Governmental stability in a country like the United States is not dependent on any particular set of ballot access laws, much less on restrictive or discriminatory ballot access laws,” said Winger. He hopes that 2020 will present an opportunity for voters to look outside the two major parties. “When a person who would be happy with [Michael] Bloomberg winning the nomination would be devastated if Bernie Sanders won, it’s wrong for them to be in the same party,” he said.
Redpath agrees. “It’s completely unnatural to try to cram everyone into one of two big tents,” he explained. “The world is too complicated. There are too many issues on which people differ to have a two-party system.”
Hall sounds tired through the phone. He still feels cheated by a system he sees as skewed towards the establishment. “You tell me how that’s set up to represent everybody.”
Redpath, who notably led the Libertarian Party to achieving ballot access for the presidential ticket in all 50 states in two consecutive elections, still believes that however disheartening the result, Hall’s effort had some benefit. Minor parties should run, even for offices they “can’t win,” he explained, in order to “speak out on the great issues of the day.”
Amendments to ballot access law happen all the time and mostly slip past an unaware public, even when they are dramatic. In December 2019, for example, the New York State legislature amended its election laws to require 45,000 signatures for statewide independent candidates to gain ballot access—three times the number previously required. Only a few outlets, including Ballot Access News and the online forum Ballotpedia, report regularly on these changes.
But there are still some legal victories. In December, a U.S. District Court struck down the Michigan statewide signature requirement of 30,000 signatures. In January, Kentucky struck down the law that requires independent candidates and the nominees of small parties to file early declarations of candidacy.
Hall is dubious about running again—he hasn’t yet forgotten the time, money, and signature-soliciting required in his first attempt. The system still feels stacked against people without boundless financial resources or party backing. “If we’re ever going to put regular people into our federal government, we’ve got to make access for regular people [to run],” he said. Until the laws change, he won’t be ready to put himself out there again.