Substitution of Nominees on the Ballot for Congressional Office, “Sore Loser” Laws, and Other “Ballot Access” Issues

Congressional research reportSep 29, 2006

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Substitution of Nominees on the Ballot for

Congressional Office, “Sore Loser” Laws, and

Other “Ballot Access” Issues

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September 29, 2006

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RL33678

CRS Report for Congress

Prepared for Members and Committees of Congress

Substitution of Nominees, "Sore Loser" Laws, and Other "Ballot Access" Issues

Summary

In July of 2006 federal courts ruled that former Representative Tom DeLay, who had earlier won

the Republican primary nomination for Congress from the 22nd District of Texas, could not have

his name substituted on the general election ballot by the Republican party even if Mr. DeLay had

changed his legal residence and voluntarily withdrew from the race. In Ohio, however, a different

result ensued a month later when Representative Robert Ney, who had won the Republican party

nomination in an earlier May primary, formally announced his withdrawal from the race on

August 14, 2006, but was permitted to be replaced through a “special primary” to nominate

another candidate. In Connecticut, the defeated candidate for the Democratic party nomination in

the August 2006 primary, incumbent Senator Joseph Lieberman, appears to be able to be on the

ballot either as an “independent” or nominee of a minor party in the general election in

November, although a similar ballot position for the general election for one who had lost a party

nominating primary would be barred in numerous states (including Ohio) because of the

application of their so-called “sore loser” laws. Several years earlier, on September 30, 2002,

former Senator Robert Torrecelli, the Democratic nominee for the United States Senate from New

Jersey, voluntarily withdrew from the Senate race and, even at that late date, a new candidate was

allowed to be chosen by the Democratic party in New Jersey and to have his name appear on the

November ballot. Meanwhile in Missouri, the Democratic nominee for the United States Senate

in the 2000 election, former Governor Mel Carnahan, died in a plane crash on October 16, 2000,

three weeks before the general election, was not able to be replaced on the ballot, received the

most votes in the ensuing election, and the “vacancy” created was filled by a temporary

replacement named by the Governor.

It is the constitutional authority of the states in the United States Constitution, at Article I, Section

4, clause 1, concerning the “times, places, and manner” of federal elections, which allows the

states to promulgate their own laws, rules and regulations regarding the ballot, the structure of the

ballot, and concerning so-called “ballot access” requirements for political party nominees, new

party nominees, and independent candidates, that has led to the varying and different treatment

and requirements for placement, removal and/or substitution of a candidate’s name on the ballot,

depending on the state in which the congressional election is to be held.

This report discusses the extent of the states’ authority over the procedures of federal elections,

examines the limitations placed by the courts on the ability of the states to limit or regulate

“ballot access,” that is, the requirements of minor or new party candidates, or independent

candidates, to have their names printed on the ballot and programmed into voting machines, and

analyzes the new cases on ballot access that have been handed down by the Federal courts in

recent months.

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Substitution of Nominees, "Sore Loser" Laws, and Other "Ballot Access" Issues

Contents

Background ................................................................................................................................1

Division of Constitutional Authority............................................................................................2

State Authority Over Election Administration and Procedures .....................................................3

Constitutionality of Ballot Access Rules......................................................................................6

Disaffiliation Rules and “Fusion” Candidates ........................................................................7

Sore Loser Laws ...................................................................................................................8

Filing Deadlines....................................................................................................................9

Show of Support ................................................................................................................. 12

Combinations of Factors ..................................................................................................... 13

Contacts

Author Contact Information ...................................................................................................... 14

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Substitution of Nominees, "Sore Loser" Laws, and Other "Ballot Access" Issues

Background

On July 6, 2006, a United States District Court ruled that former Representative Tom DeLay, who

had earlier won the Republican primary nomination for Congress from the 22nd District of Texas,

could not have his name substituted on the general election ballot by the Republican party even if

Mr. DeLay had changed his legal residence and voluntarily withdrew from the race.1 That

decision was upheld on appeal by the United States Court of Appeals, and a request to stay the

opinion was denied by Justice Scalia of the United States Supreme Court.2

In Ohio, a different result ensued a month later when Representative Robert Ney, who had won

the Republican party nomination in an earlier May primary, formally announced his withdrawal

from the race on August 14, 2006.3 In that instance, the Republican party in Ohio was permitted

to have a “special primary” to nominate another candidate for the general election (although some

questions had surfaced as to whether one of the candidates would be eligible to run in the primary

and general election because of Ohio’s “sore loser” law.)4

In Connecticut, the defeated candidate for the Democratic party nomination in the August 2006

primary, incumbent Senator Joseph Lieberman, appears to be able to be on the ballot either as an

“independent” or nominee of a minor party in the general election in November,5 although a

similar ballot position for the general election for one who had lost a party nominating primary

would be barred in numerous states (including Ohio) because of the application of their so-called

“sore loser” laws.

Several years earlier, on September 30, 2002, former Senator Robert Torrecelli, the Democratic

nominee for the United States Senate from New Jersey, voluntarily withdrew from the Senate race

and, even at that late date, a new candidate was allowed to be chosen by the Democratic party in

New Jersey and to have his name appear on the November ballot.6 Meanwhile in Missouri, the

Democratic nominee for the United States Senate in the 2000 election, former Governor Mel

Carnahan, died in a plane crash on October 16, 2000, three weeks before the general election, was

not able to be substituted for, and continued to have his name on the ballot in the November

general election. When the deceased candidate received the most votes in the ensuing election, a

Texas Democratic Party v. Benkiser, ___ F.Supp. ___ , Case No. A-06CA-459-SS (D.C.W.Tex 2006).

Texas Democratic Party v. Benkiser, ___ F.3d ___ , No. 06-50812 (5th Cir. August 3, 2006); see Application for Stay

of Enforcement of the Judgment Below Pending the Filing and Disposition of a Petition for a Writ of Certiorari to the

Fifth Circuit, August 7, 2006.

Representative Ney publicly announced his decision to withdraw on August 7, 2006 (Washington Post, “Embattled

Representative Ney Won’t Seek Reelection,” at P. A1, August 8, 2006), but did not formally notify state officials until

August 14, 2006. Associated Press, “Ohio Rep. Ney Asks Off the Ballot,” August 14, 2006.

State of Ohio, Office of the Attorney General, Opinion No. 2006-035, August 10, 2006.

Washington Post, “Lieberman Defeated in Democratic Primary; Senator Vows Independent Run as Antiwar

Candidate Prevails,” p. A1, August 9, 2006; Washington Post, “Connecticut Groups Push to Remove Lieberman From

Ballot,” p. A6, August 22, 2006.

New Jersey Democratic Party, Inc. v. Samson, 814 A.2d 1025 (order, October 2, 2002), 814 A.2d 1028 (opinion,

Supreme Court of New Jersey, October 8, 2002). The Supreme Court of the United States denied review of the New

Jersey Supreme Court order and decision, Forrester v. New Jersey Democratic Party, Inc., 537 U.S. 803 (application

for stay denied, October 7, 2002), cert. denied, 537 U.S. 1083 (2002).

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Substitution of Nominees, "Sore Loser" Laws, and Other "Ballot Access" Issues

“vacancy” was declared and the acting Governor, under the 17th Amendment and Missouri law,

chose a temporary replacement until the next statewide election to fill the remainder of the term. 7

This report will examine federal law and constitutional provisions to explain the seeming

disparity in treatment concerning the placing and substitution of candidates names on the ballot

for federal offices. In the course of this discussion, the report will analyze what have generally

been characterized as “ballot access” issues in the states.

Division of Constitutional Authority

Initially, it should be noted that under our federal system, an interesting division of jurisdiction

occurs in the case of elections to the United States Congress. In the first instance, the terms of

federal congressional offices and the qualifications of candidates eligible for federal offices are

established and fixed by the United States Constitution, and are unalterable by the Congress itself

or by any state unilaterally.8 The Constitution expressly provides, however, in the so-called

“times, places and manner” clause, that the individual states have the general authority to

administer congressional elections within their jurisdictions. 9 Furthermore, the states, within

constitutional parameters, have the authority to set the qualifications to vote for those federal

offices at these elections. 10 As to the final results of the election and seating in Congress, the

Constitution provides that each House of Congress has the authority to be the final judge of the

results of those congressional elections held in the states, and to judge the three constitutional

qualifications for office (age, citizenship, and inhabitancy in the state when elected) of the

Members-elect presenting themselves for membership in the institution.11

Washington Post, “Jean Carnahan Named to Senate,” at A6, December 6, 2000. Note generally, CRS Report

RL31338, Disqualification, Death, or Ineligibility of the Winner of a Congressional Election, by (name redacted).

United States Constitution, Article I, Section 2, cl. 2; and Article I, Section 3, cl. 3. See Powell v. McCormack,395

U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510 (2001).

Article I, Section 4, cl. 1. This provision of the Constitution reserves to Congress a residual, superceding authority to

adopt legislation concerning such elections.

In Article I, Section 2, clause 1, and the 17th Amendment of the Constitution, states are authorized to establish the

qualifications to vote in federal congressional elections, as long as such qualifications are the same as those to vote in

state elections for the most numerous house of the state legislature. The states must follow constitutional mandates for

federal elections, such as the 15th (Negro/emancipated slave voting rights), 19th (women’s suffrage), and 26th

Amendments (18-year old vote), as well as equal protection principles of the 14th Amendment, and federal statutory

requirements for voting rights.

Article I, Section 5, cl. 1:”Each House shall be the Judge of the Elections, Returns and Qualifications of its own

Members ....”

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State Authority Over Election Administration

and Procedures

The states’ authority over election administration and procedures for congressional elections is set

out at Article I, Section 4, clause 1, of the United States Constitution, and provides as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall

be prescribed in each State by the Legislature thereof; but the Congress may at any time by

Law make or alter such Regulations, except as to the Places of chusing Senators.

Under this express constitutional authority of the states to regulate the “times, places and manner”

of congressional elections, the states may promulgate regulatory and administrative provisions

dealing with the mechanics and procedures of the elections for congressional office which are

held within their jurisdictions. This procedural and administrative authority has been found to

extend to such things as, for example, the form of the ballots, the positioning of candidates’

names and party affiliations on the ballot, voting procedures and mechanics, counting votes and

certifying winners, and the nominating and/or petition process generally, including the authority

to enact reasonable requirements and regulations for a candidate’s name to appear on the ballot—

that is, so-called “ballot access” requirements for major party, new party, and independent

candidates.12 In discussing the breadth of the legislative authority in the states over the conduct of

federal elections, the Supreme Court explained as follows:

The subject matter is the “times, places and manner of holding elections for Senators and

Representatives.” It cannot be doubted that these comprehensive words embrace an authority

to provide a complete code for congressional elections, not only as to times and places, but in

relation to notices, registration, supervision of voting, protection of voters, prevention of

fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and

making and publication of election returns....13

It is this authority of the states over the ballot, the structure of the ballot, and concerning so-called

“ballot access” requirements for political party nominees, new party nominees, and independent

candidates, that has led to the varying and different treatment and requirements for placement,

removal and/or substitution of a candidate’s name on the ballot, depending on the state in which

the congressional election is to be held. Since these matters are generally subjects of state law,

within the parameters and requirements of the United States Constitution, it is the application of

the particular state law that may result in a different outcome of a withdrawal of a congressional

candidate who has won a major party nomination in a primary in Texas, as opposed to a

withdrawal and substitution of a party-nominated candidate for Congress in Ohio or in New

Jersey, the death of a nominated candidate in Missouri, or the ability to be on the ballot in

Connecticut as an independent or the nominee of a new party in a general election after losing a

party primary for the same office.

Although the state legislatures have broad authority under the United States Constitution

concerning the procedures for federal elections within their jurisdictions, the constitutional

Storer v. Brown, 415 U.S. 724 (1974); Jenness v. Fortson, 403 U.S. 431 (1971); Bullock v. Carter, 405 U.S. 134, 145

(1972); Williams v. Tucker, 382 F. Supp. 381, 387-388 (M.D.Pa. 1974).

Smiley v. Holm, 285 U.S. 355, 366 (1932).

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provision expressly provides a superceding, residual authority within the Congress to legislate

different provisions for federal elections held in the states. This residual authority in Congress has

been found to be as extensive and complete as the state legislatures’ authority over such elections

within their respective jurisdictions. After discussing the breadth and extent of the states’

authority over election procedures for federal office, the Supreme Court explained the authority

of Congress over such elections:

This view is confirmed by the second clause of Article I, section 4, which provides that “the

Congress may at any time by law make or alter such regulations,” with the single exception

stated. The phrase “such regulations” plainly refers to regulations of the same general

character that the legislature of the State is authorized to prescribe with respect to

congressional elections. In exercising this power, the Congress may supplement these state

regulations or may substitute its own. It may impose additional penalties for the violation of

state laws or provide independent sanctions. It ‘has general supervisory power over the

whole subject.’ Ex parte Seibold, 100 U.S. 371, 387; Ex parte Yarbrough, 110 U.S. 651, 661;

Ex parte Clark, 100 U.S. 399; United States v. Mosely, 238 U.S. 383, 386; Newberry v.

United States, 256 U.S. 232, 255.14

Despite the broad, residual and superceding authority of Congress in this area, Congress has not

extensively exercised this power with respect to the procedures for federal elections in the various

states. Congress has, it may be noted, legislated in this area, for example, in 1872 to assure that

there will be a uniform date for the election of Representatives and Senators throughout all of the

states (the Tuesday immediately following the first Monday in November in the particular,

applicable even-numbered election years),15 and has legislated a detailed system for regulating,

reporting and disclosing the campaign finances of candidates to federal office. 16 However, as a

policy matter, and under Article I, Section 4, clause 1, Congress has traditionally allowed the

states, within the framework of the federal constitutional and statutory mandates, to exercise the

substantive control over the procedures and administrative details of elections within their own

respective jurisdictions (and the states have then often further devolved immediate administrative

and supervisory control over many election procedures to local and county authorities within their

jurisdictions). This policy has generally recognized the principle that because of the varying

political cultures, practices, and traditions across the nation, and from state-to-state, that

operational authority over most of the election mechanics is more appropriately left to the states

and localities.

Thus, as shown by the recent instances regarding candidate-substitutions on the ballot for the

United States House of Representatives and the United States Senate, the particular procedural

laws of the state in question govern the resolution of the issue. In Texas, the courts looking at the

matter of the attempted withdrawal of and replacement for former Representative Tom DeLay on

the ballot for the United States House of Representatives from the 22nd district of Texas,

interpreted a Texas election law, in light of the United States Constitution’s qualifications

requirements, to find that former Representative Tom DeLay could not be replaced on the ballot

by the Republican party after Mr. DeLay had won the nomination at a primary election. To

prevent what has been described as the “gaming” of the nomination system with the use of socalled “straw” candidates, “stalking horses” or “place-holder” candidates, Texas law currently

provides that when parties nominate candidates by primary election, one party is not permitted to

285 U.S. at 366-367.

17 Stat. 28, ch. 11, § 3, February 2, 1872, now 2 U.S.C. § 7.

See Federal Election Campaign Act, as amended, 2 U.S.C. §§ 431 et seq.

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later replace a candidate so nominated, unless the candidate is not “eligible” for the office. 17 Since

“eligibility” for the office of Representative in the United States Congress is established in and

governed exclusively by the provisions of the United States Constitution—and those provisions

require only that the candidate be 25 years of age, a citizen of the United States for seven years

and, at the time of election, be an inhabitant of the state from which elected—Mr. DeLay was

found not to be, at the time of the decision, “ineligible” under the United States Constitution for

the congressional seat, and thus could not be replaced on the ballot under Texas law.18

In Ohio, however, after the withdrawal of a nominated candidate, the election laws of the State of

Ohio permit the political party to name a substitute, or if the candidate withdraws at least 80 days

before the general election, to have a “special election” primary to nominate a substitute.19 So

although Representative Ney withdrew from the congressional election race in Ohio at an even

later date than did former Representative DeLay in Texas, a special primary was allowed to be

held in Ohio to substitute a name on the ballot as the Republican party’s nominee for the general

election for Representative. Similarly, in New Jersey, the state election laws provided for a

specific procedure for the replacement of candidates who withdrew up to 50 days before an

election,20 but the courts found that the state statute did not necessarily preclude party substitution

for a withdrawn candidate closer to the election if the administrators of the election certified that

the substitution could be made without significant disruption to election procedures. 21 In

Missouri, however, the Democratic nominee for United States Senator died in a plane crash so

close to the November 2000 general election, on October 16, 2000, that the deadline under

Missouri law for finalizing the ballot and programming machines had passed; the party therefore

could not substitute another candidate, and the deceased candidate’s name was left on the ballot.22

Texas Election Code §§ 145.003, 145.036, and 145.037. See discussion in Texas Democratic Party v. Benkiser, (5th

Cir.) Slip op. at 25, n.19.

There is no “durational” residency requirement under the Constitution, as one must merely be an inhabitant of the

state “when elected.” Article I, Section 2, cl. 2; See 2 Farrand, Records of the Federal Convention of 1787, 216-219,

and, for example, case of Pierre E.G. Salinger, Case 134, United States Senate Election, Expulsion, and Censure Cases,

1793-1990, Senate Doc. 103-33, at 413 (1995), S.Rept. 1381, 88th Cong., 2d Sess. (1964). State law may thus not create

nor operate to create a “durational” residency requirement, or a “pre-election residency” requirement which is

additional to the three exclusive constitutional qualifications to congressional office. Powell v. McCormack, U.S. Term

Limits, Inc. v. Thornton,; Cook v. Gralike; Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000); Campbell v. Davidson,

233 F.3d 1229 (10th Cir. 2000).

Ohio Revised Code, Sections 3513.31(B), 3513.312. See State of Ohio, Office of the Attorney General, Opinion No.

2006-035, at pp. 2-5, August 10, 2006.

New Jersey Statute Annotated, §19:13-20 (1999).

New Jersey Democratic Party. v. Samson,; Forrester v. New Jersey Democratic Party, Inc., 537 U.S. 803

(application for stay denied, October 7, 2002), cert. denied, 537 U.S. 1083 (2002).

Annotated Missouri Statutes, §§ 115.379, and 105.040. Under the so-called “American Rule,” observed and followed

in both House and Senate election contests and disputes, if a deceased (or otherwise ineligible) congressional candidate

receives the most votes in an election, a “vacancy” occurs and is filled according to the Constitution and implementing

state law, but the second place finisher is not declared the winner (as under the so-called “British Rule”). Note,

generally, discussion in CRS Report RL31338, Disqualification, Death, or Ineligibility of the Winner of a

Congressional Election, by (name redacted),

supra, and Riddick and Fruman, Riddick’s Senate Procedure, Precedents and

Practice, S. Doc. No. 101-28, 101st Cong., 2d Sess. 701 (1992); 2 Deschler’s Precedents of the U.S. House of

Representatives, Ch. 7, § 9, at 96; and Smith v. Brown (40th Cong.), Rowell’s Digest of Contested Election Cases, 220221.

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Constitutionality of Ballot Access Rules

“Ballot access” rules and provisions in the states, the processes by which candidates are certified

to have their names appear on the ballot and programmed into voting machines, are generally

promulgated by states in an attempt to prevent the proliferation of frivolous candidates, ballot

overcrowding and voter confusion, election fraud, and to facilitate generally proper election

administration.23 While those interests of the state are certainly legitimate and significant, ballot

access procedures must, under constitutional principles of the First and Fourteenth Amendments,

provide a reasonable and not-impermissibly discriminatory method for new party and

independent candidates to qualify for the ballot.24 That there may be different methods or “tracks”

to the ballot, or differing requirements to have one’s name placed on the ballot, depending on

whether one is the nominee of a major political party, a minor or new party, or an independent

candidate, is not necessarily constitutionally impermissible, as long as such methods do not

“unfairly or unnecessarily burden” new party or independent candidates.25

In examining state laws which treat different candidates differently as far as ballot access, the

courts will not always apply “heightened scrutiny” to determine if the hurdles imposed on new,

minor or independent candidates by election procedures are, on balance, permissible. If the state

laws impose only what are found to be “reasonable, nondiscriminatory restrictions” on the

protected rights affected, then the regulations and procedures of the state would be upheld when

they are sufficiently related to the legitimate state interests asserted.26 However, when the

restrictions on rights are considered to be “severe,” then the regulation in question “must be

narrowly drawn to advance a state interest of compelling importance.”27

The Supreme Court explained the analytic framework it employs for state regulations which work

to limit access to the ballot and thus impact associational rights of voters, political parties,

candidates, and their supporters:

When deciding whether a State election law violates First and Fourteenth Amendment

associational rights, we weigh the “character and magnitude” of the burden the State’s rule

imposes on those rights against the interests the State contends justify that burden, and

consider the extent to which the State’s concerns make the burden necessary. [citations

omitted] ... Regulations imposing severe burdens on plaintiffs rights must be narrowly

tailored and advance a compelling state interest. Lesser burdens, however, trigger less

Storer v. Brown, 415 U.S. 724 (1974); Jenness v. Fortson, 403 U.S. 431 (1971); Bullock v. Carter, 405 U.S. 134, 145

(1972); Williams v. Tucker, 382 F. Supp. 381, 387-388 (M.D.Pa. 1974).

“[B]allot access must be genuinely open to all, subject to reasonable requirements.” Lubin v. Panish, 415 U.S. 709,

719 (1974); Anderson v. Celebrezze, 460 U.S. 780 (1983); Jenness v. Fortson, 403 U.S. 431, 439 (1971); McCarthy v.

Briscoe, 429 US 1317 (1976); Williams v. Rhodes, 393 U.S. 23 (1968).

Lubin v. Panish, supra at 716. Although various state laws may differ significantly, major party candidates are

generally granted a ballot position in general elections upon nomination by their party at either a primary, convention

or caucus, while minor, new party and independent candidates must usually submit petitions signed by a certain

percentage of the voting age population, registered voters, or percentage of those actually voting in previous elections,

to qualify for a ballot position.

Jenness v. Fortson, 403 U.S. at 441-442; Williams v. Rhodes,; Bullock v. Carter, 405 U.S. 134 (1972); American

Party of Texas v. White, 415 U.S. 767 (1974).

Anderson v. Celebrezze, 460 U.S. at 788, 789; Burdick v. Takushi, 504 U.S. 428, 434 (1992); Norman v. Reed, 502

U.S. 279, 289 (1992); see discussion in Libertarian Party of Ohio v. Blackwell, ___ F.3rd ___ No. 04-4215, at 5 (6th Cir.

September 6, 2006).

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exacting review, and a State’s “important regulatory interests,” will usually be enough to

justify “reasonable nondiscriminatory restrictions.”28

Additionally, reasonable “ballot access” procedures, including filing requirements, filing

deadlines, a show of qualifying support by new or minor party or independent candidates, “sore

loser” laws and other restrictions on cross-filing and multiple candidacies, have been found

generally to be within the state’s purview to “regulate[ ] election procedures” to serve the state

interest of “protecting the integrity and regularity of the election process....,” and when found to

be within the state’s administrative authority over election procedures, were not deemed to be

impermissible “additional qualifications” for federal office, even though they may create certain

procedural hurdles or requirements which a candidate must overcome to be placed on the ballot.29

The distinction between permissible, procedural “ballot access” regulations by the states, such as

the “sore loser” laws and the requirements for independents or new party candidates to

demonstrate some level of support (such as a certain number of signatures on a petition) to appear

on a ballot, as opposed to prohibited “additional qualification” requirements added by the states

was explained by the Supreme Court in U.S. Term Limits, Inc.:

The provisions at issue in Storer and our other Elections Clause cases were thus

constitutional because they regulated election procedures and did not even arguably impose

any substantive qualification rendering a class of potential candidates ineligible for ballot

position. They served the state interest in protecting the integrity and regularity of the

election process, an interest independent of any attempt to evade the constitutional

prohibition against the imposition of additional qualifications for service in Congress. And

they did not involve measures that exclude candidates from the ballot without reference to

the candidate’s support in the electoral process.30

Disaffiliation Rules and “Fusion” Candidates

In California, the statutory scheme upheld by the Supreme Court, in Storer v. Brown, supra,

worked to prevent a ballot position to an independent candidate not only if that candidate had run

in and been defeated in a primary election of a political party (a so-called “sore loser” provision),

but also if that person had “voted in the immediately preceding primary” or “had a registered

affiliation with a qualified political party at any time within one year prior to the immediate

preceding primary election.”31 This so-called “disaffiliation” requirement, along with the “sore

loser” provision, were found by the Supreme Court to further important and compelling state

interests:

A candidate in one party primary may not now run in that of another; if he loses in the

primary, he may not run as an independent; and he must not have associated with another

political party for a year prior to the primary.... The direct primary in California is not merely

an exercise or warm-up for the general election but an integral part of the entire election

process, the initial stage in a two-stage process by which the people choose their public

officers. It functions to winnow out and finally reject all but the chosen candidates. The

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

See discussion in U.S. Term Limits, Inc. v. Thornton, 514 U.S. at 832-835, comparing legitimate “ballot access”

provisions as in Storer v. Brown,, with impermissible additional qualifications for federal office, such as individual

state-imposed term limits.

U.S. Term Limits, Inc. v. Thorton, 514 U.S. at 835.

Storer v. Brown, 415 U.S. at 726.

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State’s general policy is to have contending forces within the party employ the primary

campaign and primary election to finally settle their differences. The general election ballot

is reserved for major struggles; it is not a forum for continuing intraparty feuds. The

provision against defeated primary candidates running as independents effectuates this aim,

the visible result being to prevent the losers from continuing the struggle and to limit the

names on the ballot to those who have won the primaries and those independents who have

properly qualified. The people, it is hoped, are presented with understandable choices and the

winner in the general election with sufficient support to govern effectively.

Section 6830(d)(Supp. 1974) carries very similar credentials. It protects the direct primary

process by refusing to recognize independent candidates who do not make early plans to

leave a party and take the alternative course to the ballot. It works against independent

candidates prompted by short-range political goals, pique, or personal quarrel. It is also a

substantial barrier to a party fielding an “independent” candidate to capture and bleed off

votes in the general election that might well go to another party.

... California apparently believes with the Founding Fathers that splintered parties and

unrestrained factionalism may do significant damage to the fabric of government. The

Federalist, No. 10 (Madison).32

In a somewhat similar vein, the Supreme Court upheld a Minnesota statute which prohibits, as do

the laws of many other states, a candidate from appearing on the ballot as the candidate of more

than one political party, often referred to as “fusion” candidacies. While the Court noted some

potential burden on the First and Fourteenth Amendment rights of association and speech of a

political party and its supporters in such anti-fusion laws, the Court found the burdens to be “not

severe,” as the laws “do not restrict the ability of the New Party and its members to endorse,

support, or vote for anyone they like,” nor do they “directly limit the party’s access to the

ballot.”33 As such, the Court found that the state’s interests “to reduce election- and campaignrelated disorder,” and the interests put forward by the state of “avoiding voter confusion,

promoting candidate competition (by reserving limited ballot space for opposing candidates),

preventing electoral distortions and ballot manipulations, and discouraging party splintering and

‘unrestrained factionalism,’”34 were sufficient state interests promoted by this ban.

Sore Loser Laws

Certain states have statutory provisions that have become known as “sore loser” laws. “Sore

losers” have been described by one United States Court of Appeals as follows: “‘Sore losers’ are

candidates who lose a major party primary but insist on running on a minor party ticket” or as an

independent in the general election. 35 The laws in several states now prohibit one who has run and

lost in a primary, from obtaining a place on the ballot in the general election as an independent or

as a minor party candidate.

Storer v. Brown, 415 U.S. at 734-736.

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997).

Timmons, 520 U.S. at 358, 364.

Patriot Party v. Allegheny City Dept. of Elections, 95 F.3d 253, 265 (3rd Cir. 1996). The court in Patriot Party found

that the state prohibition on cross-party nominations by small parties was not a “sore loser” law, and did not narrowly

promote a sufficient interest to overcome constitutional objections of burdening First and Fourteenth Amendment rights

of free association. Id. at 264.

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In early state litigation, in 1902, a Minnesota statutory scheme preventing an unsuccessful

congressional candidate at a primary election from having his name printed on the general

election ballot as an independent for the same congressional office was upheld against a challenge

that it created an additional qualification to office, as long as the candidate could run in a write-in

campaign. 36 Similarly, in 1934 a Nebraska Supreme Court ruled that a candidate who was

defeated in the primary election for the office of Governor could not by petition have his name

printed on the general election ballot even for another office, that of United States Senator, since

the statutory scheme preventing those defeated at the primary from being on the ballot in the

general election did not create an additional qualification for congressional office. 37 In the only

case found voiding a “sore loser” law’s application to a congressional candidate, the North

Dakota Supreme Court in 1942 ruled that the state statute was inapplicable to congressional

candidates on the basis that it impermissibly created an additional qualification for congressional

office.38

The clear trend in litigation in federal courts has been favorable to state “sore loser” laws as a

species of “ballot access” provisions that help states maintain the integrity of the nominating and

election process by preventing “interparty raiding,” carrying “intraparty feuds” into the general

election, “unrestrained factionalism,” ballot clutter, and voter confusion.39 In Williams v. Tucker, a

three-judge federal district court upheld the provisions of the Pennsylvania election code which

worked to require a candidate to choose between a primary nomination or an independent petition

route to the general election, and which barred both state and federal candidates who lost in the

primary election from running again in the general election as independent candidates. 40 The

court in Williams v. Tucker relied significantly on the Supreme Court decision and reasoning in

Storer v. Brown, in justifying certain state regulations on the nomination, ballot, and general

election procedures. The court there found that the laws in question, “which have the combined

effect of preventing a candidate defeated in the primary from obtaining a position on the general

election ballot as the candidate of a political body, do not for this reason violate the first

amendment or the equal protection clause of the fourteenth amendment.”41

Filing Deadlines

As part of the administrative duties involving ballot access, preparation and printing of the

ballots, a state must by necessity, because of the exigencies of time and duties, limit or establish a

time-frame or deadline by which the ballot must be “set” or finalized, that is, a reasonable time

before the general or primary election when no more candidates may be placed on the ballot or

programmed into the voting machines. Courts have noted that states have a “compelling interest”

in setting deadlines and in finalizing the ballot “so that general election ballots can be properly

and timely prepared and distributed.”42 One of the consequences of not having a “set” ballot at

some reasonable point prior to an election (and of allowing last-minute changes in the candidates

on the printed ballot and on voting machines), would be the disenfranchisement of military and

State ex rel. McCarthy v. Moore, County Auditor, 87 Minn. 308, 92 N.W. 4 (1902).

State ex rel. O’Sullivan v. Swanson, 257 N.W. 255 (Sup. Ct. Neb. 1934).

State ex rel. Sundfor v. Thorson, 6 N.W. 2d 89, 90-92 (Sup. Ct. N.D. 1942).

Storer v. Brown, 415 U.S. at 731, 735, 736; Patriot Party v. Allegheny City Dept. of Elections, 95 F.3d at 264-265.

382 F. Supp. 381, 387-388 (M.D.Pa. 1974).

Id. at 387.

Whig Party of Alabama v. Siegelman, 500 F.Supp. 1195, 1205 (D.C. Ala. 1980).

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other absentee voters, since such last-minute changes would not allow sufficient time before

election day to prepare, print, mail out and then to receive back by mail new absentee ballots with

such changes.

As found by one federal court, with an election a “mere five weeks away” even if plaintiffs had

prevailed on the merits of their arguments against their exclusion from the ballot, the court would

have still refused to require the state to change its ballots by including petitioners’ names, since

the court recognized the overriding administrative necessities of deadlines to insure “time

available for election officials to complete their election preparations” before the election.43 The

court noted the “risk [of] substantial disruption of the electoral process” that could ensue by

changing a ballot after the state-established administrative deadline for finalization of those

ballots, and noted the “tight schedule” of election officials, and the myriad duties and

responsibilities that are valid administrative reasons for reasonable deadlines for finalizing

ballots:

Last minute voter registration, processing of many absentee ballot requests, supervising the

printing of voting machine ballots, sample ballots, tally sheets, and instruction sheets,

instruction classes for election judges and clerks [footnote: mailing of absentee ballots and

classes for election judges and clerks have already begun], final preparation of voter lists and

signature cards, and distribution of voting machines and supplies remain to be accomplished

before [the] November [election].44

Courts have thus been loathe to require or allow parties to force changes to ballots close to an

election, that is, at the “eleventh hour,” with an election “close at hand,” or with “the imminence

of election,” because of “the potential for seriously disrupting the State’s electoral process.”45

With an election “less than three weeks away,” a federal court refused to require the changing of a

ballot to add petitioners’ names, even on a strong First Amendment showing by petitioners, since

“much of the ballot and voting machine preparation” had already taken place, and there needed to

be a balancing and a proper weight given to the state’s needs and interests in an “orderly”

election, including the prevention of the “possible disenfranchisement of absentee and military

voters caused by eleventh hour changes to the ballot.”46 Justice Marshall, on circuit, turned down

on October 1 a request to order names to be printed on a ballot for an upcoming November

election citing, among other reasons, the state’s concern for the potential “chaotic and disruptive

effect upon the electoral process,” since the “Presidential and overseas ballots have already been

printed; some have been distributed. The general absentee ballots are currently being printed.”47

The filing deadline and requirement for finalizing the ballots are among the reasons that a

political party might not be allowed under state procedures to substitute a nominee on the ballot

after a particular time prior to an election. This is often the reason that a candidate who died or

withdrew shortly before an election would still have his or her name on the ballot and

programmed into voting machines, at the time of the election.48 States interpreting their own

Maddox v. Wrightson, 421 F. Supp. 1249, 1252 (D.C. Del. 1976).

Id. at 1252.

NAACP v. New York, 413 U.S. 345, 369 (1973); Valenti v. Mitchell, 962 F.2d 288 (3rd Cir. 1992); Smith v. Board of

Elections, 586 F. Supp. 309, 312 (N.D. Ill. 1984).

Valenti v. Mitchell, supra at 301.

Fishman v. Schaffer, 429 U.S. 1325, 1330 (1976). The state election procedure in question provided a filing deadline

for petitions of nine weeks before an election.

Note, for example, instances of Senate candidate Mel Carnahan in Missouri, in 2000; Representatives Hale Boggs of

(continued...)

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statutes might show differing degrees of leniency as to such deadlines, particularly, as in the case

of the United States Senate election in New Jersey in 2002, if election administrators attest that

the change can be implemented in the time remaining before the election without significant

disruption or disenfranchisement of absentee voters.49

Overly long filing deadlines for parties and candidates, particularly with respect to the deadlines

established for the collection of signatures on petitions for new, minor party or independent

candidates, might also be used, however, as a device or method to burden or to improperly keep

those candidates off of the ballot. Recent cases have affirmed that some filing deadlines,

particularly when combined with stringent signature requirements for petitions, may unfairly

burden the First and Fourteenth Amendment rights of rights of voters and the parties and

candidates that they support.50

In Ohio, all political parties are required by the Ohio Constitution to nominate their candidates by

a primary election. Furthermore, all minor parties (parties which receive less than 5% of the vote)

are required by statute to file a petition with the Secretary of State—containing signatures of 1%

of the total votes cast in the previous election—120 days in advance of the required state primary.

In presidential election years, with the presidential primary being moved from May to the first

Tuesday in March, a minor party would have to garner signatures and submit a petition to

participate in a primary for the November election almost one full year before that November

general election. Under these circumstances, and considering the track record of the State of Ohio

(which the court indicated had the fewest minor party candidates for President of any of the most

populous states),51 the combination of such laws and requirements was found in a recent decision

to have imposed a “severe” burden on the associational rights of the voters seeking to associate

with this party, as well as a severe burden on the party seeking support and the placement of its

candidates on the ballot, which was not justified by any countervailing, compelling state interest.

The court there noted: “Deadlines early in the election cycle require minor political parties to

recruit supporters at a time when the major party candidates are not known and when the

populace is not politically energized.”52

(...continued)

Louisiana, and Nick Begich of Alaska, in 1972; and Representative Clement Miller of California in 1962.

New Jersey Democratic Party. v. Samson, 814 A.2d 1025.

Earlier cases established that strict deadlines for the filing of petitions by minor, new or independent candidates may

not be of such a necessity as to overcome Fourteenth Amendment and First Amendment complaints of unfair treatment

of supporters of those candidates who must file petitions to gain ballot access, as opposed to nominated party

candidates who had much later deadlines. Anderson v. Celebrezze, 460 U.S. 780 (1983) (Ohio filing deadline in March

for independent candidates not justified by state administrative need for so much time to verify petition signatures);

New Alliance Party of Alabama v. Hand, 933 F.2d 1568, 1574 (11th Cir. 1991)(April deadline for new and minor party

candidates not justified as “... evidence tends to show that the State would be able to place the name of a candidate on

the ballot at a fairly late date without unduly impairing the administrative task of printing the ballot ....”); McCarthy v.

Kirkpatrick, 420 F. Supp. 366, 374 (W.D.Mo. 1976), deadline of 188 days before election for independent candidates

to file petitions was too long, as State of Missouri could conceivably add or take names off ballot as late as September

for a November election; McCarthy v. Austin, 423 F. Supp. 990, 999 (W.D. Mich. 1976), ordering the placement of a

name on the ballot on August 27 would not “seriously disrupt [State] preparations for the general election” in

November.

Libertarian Party of Ohio v. Blackwell, 04-4215, at 8 (6th Cir., Sept. 6, 2006): “...Ohio is among the most restrictive,

if not the most restrictive, state in granting minor parties access to the ballot. Of the eight most populous states, Ohio

has had by far the fewest minor political parties on its general election ballot.”

Libertarian Party of Ohio v. Blackwell, slip op. at 5.

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Show of Support

Among the requirements differing from major party candidates that a state may impose upon new,

minor, and independent candidates as a condition to appearing on the ballot, is that the candidate

show some “modicum of support” by the electorate, in the interest in weeding out frivolous

candidates and cluttering the ballot with multiple candidates, leading to voter confusion.53

In Green Party of Arkansas v. Daniels, the United States District Court in Arkansas, in August of

2006, found that restrictive petition requirements for new parties to have their candidates appear

on the ballot (signatures totaling 3% of the number of votes for Governor or presidential

elector—which would be 24,171 signatures—as compared to only 10,000 for independent

candidates) would burden the “rights of individuals to associate for the advancement of political

beliefs, ... the right of qualified voters, regardless of political persuasion to cast their votes

effectively” and the “right of citizens to create and develop new political parties.” 54 The court

there determined that these burdens were not justified by a “narrowly drawn” recognition scheme

that served “a compelling state interest.”55 The court found from the history of ballot access by

new party and independent candidates in Arkansas, that the 10,000 signature requirement would

suffice to meet the state’s asserted interests and needs:

The 10,000 signature threshold is a sufficient modicum of support to serve the state’s interest

in avoiding cluttered ballots and the evidence shows quite clearly that the three percent

requirement is much higher than necessary as it imposes a severe burden under the First and

Fourteenth Amendments on the associational rights of the Green Party and the candidates

who are plaintiffs in this case because they cannot get on the ballot otherwise.56

In New Mexico, a statutory scheme was upheld by the United States District Court of New

Mexico in a decision released September 18, 2006.57 The New Mexico statutory scheme in

question provided for a two-step petition requirement for new parties to have their candidates

appear on the ballot. In the first step, a political party seeking recognition as a “minor political

party” must file a petition containing signatures from at least one-half of one percent of the total

votes cast for the office of Governor of New Mexico (or President of the United States) at the

preceding election in New Mexico. After the party is certified, the party may then nominate

candidates for public office as prescribed in the party’s rules, and must then certify the names of

candidates by the second Tuesday in July,—and with such certification provide another petition

for each candidate with signatures of one percent of the total votes cast for the office of Governor

of New Mexico (or President of the United States) at the preceding election. The Libertarian

Party in New Mexico filed the original petition to be recognized as a “minor political party,” but

did not file the petitions required at the second step for its candidates to appear on the ballot, but

rather filed a law suit claiming that the two-step petition process violated the First and Fourteenth

Amendment rights of association and speech of its party, its members and candidates. The court

there, focusing primarily (as did the complaint) on the second, 1% signature requirement, did not

Lubin v. Panish, 415 U.S. 709, 714 (1974); Jenness v. Fortson, 403 U.S. 431, 442 (1971).

Green Party of Arkansas v. Daniels, ___ F.Supp. ___ , No. 4:06CV00758 GH (E.D. Ark. August 23, 2006),

Memorandum Opinion and Order, at pp. 8, citing Williams v. Rhodes, at 30-31, and Norman v. Reed, 502 U.S. 279,

2888 (1992).

Id. at 10.

Id.

Libertarian Party of New Mexico v. Vigil-Giron, ___ F. Supp. ___, Civ-06-0615 MV/ACT, (D.N.M September 18,

2006).

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believe that the “character and magnitude” of the burdens imposed on new and minor parties,

their candidates and supporters, were severe enough to overturn the requirements. The court

noted that the Supreme Court in the past has allowed petition requirements of between 1% of the

total vote cast for Governor in the preceding election (in Texas),58 and, in Georgia, up to 5% of

the number of voters eligible to vote in the last election for the office in question.59 In this case

the court found that the second petition requirement of a 1% showing of support legitimately

supported the goals of the state “avoiding overloaded ballots and frivolous candidacies, which in

turn diminish victory margins, contribute to the cost of conducting elections, confuse and

frustrate voters, increase the need for burdensome runoffs, and may ultimately discourage voter

participation and in the electoral process.”60 As to the dual petition requirements taken together,

the court conceded that “it is more burdensome for a political organization to obtain the necessary

signatures” for becoming a minor party, and then shortly thereafter having to obtain signatures for

its list of candidates. However, the court concluded that on the whole “the burdens are still

substantially less than the burdens imposed by schemes previously upheld by the Supreme

Court.”61 The court concluded:

The State has separate interests in ensuring support for a political party and ensuring a

modicum of support for a particular candidate nominated by that party. The fact that these

two petitions may, under certain circumstances, occur in the same election cycle does not

create a sufficient burden to outweigh the important State interests served by the

requirements.62

Combinations of Factors

In some cases a court may look not only to the number of petition signatures required for a

candidate to be placed on the ballot, or to the length of time before an election that a petition must

be filed by new, minor, or independent candidates, but may also look to the totality of

circumstances in finding unnecessary burdens on the First and Fourteenth Amendment rights of

supporters, voters, parties, and candidates. In Lee v. Keith,63 decided on September 18, 2006, the

United States Court of Appeals for the Seventh Circuit found the Illinois statutory scheme for

independent candidates to be overly burdensome, and not a narrowly drawn provision which

advances the state interests asserted. The statutory scheme for independents to be on the ballot for

the State General Assembly required nominating petitions to be filed 92 days before the March

primary for that office, or 323 days before the November general election, required the obtaining

of signatures from voters equaling 10% of the vote in the last general election (raised in 1979

from 5%), and disqualified anyone who signs such a petition for an independent candidate from

voting in the primary. As noted by the court, since one year from the institution of these

requirements (1980), “not a single independent candidate for state legislative office has qualified

for ballot access.”64 The court concluded in that case:

American Party of Texas v. White, 415 U.S. 767 (1974).

Jenness v. Fortson, 402 U.S. 431 (1971).

Libertarian Party of New Mexico v. Vigil-Giron, at 13.

Id. at 19.

Id. at 23.

Lee v. Keith, No. 05-4355, (7th Cir. September 18, 2006).

Lee v. Keith, at 2.

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When measured by comparison to the ballot access requirements in the other 49 states or by

the stifling effect they have had on independent legislative candidacies since their inception,

the combined effect of Illinois’ ballot access requirements for independent General

Assembly candidates falls on the “severe” end of this sliding scale....

Because Illinois’ ballot access requirements combine to severely burden the rights of

candidates and voters to launch and support independent candidacies, they must by

“narrowly drawn” to advance s “compelling” state interest....

We conclude that these ballot access requirements, in combination, severely burden First and

Fourteenth Amendment rights and are not narrowly drawn to advance Illinois’s interest in

avoiding the political instability of party splintering and excessive factionalism and the ballot

clutter of frivolous candidacies. We do not question that these are important state interests;

they have long been recognized as such.... But the Supreme Court has also observed that the

interest in political stability “does not permit a State to completely insulate the two-party

system from minor parties’ or independent candidates’ competition and influence,” ... and

that is effectively what Illinois has done.65

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.g

ov, 7-....

Lee v. Keith, at 9, 10, 13.

Congressional Research Service

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