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Keywords

Law; Election Law

Abstract

Since the beginning of government-printed ballots for federal and state offices in 1889, state legislatures have been wrestling with the problem of how many signatures should be required for independent candidates and new political parties to get on the ballot. Laws on this subject are very volatile; there is not a single instance in United States history in which applicable state laws were the same for two consecutive presidential elections. The volatility increased in 1968, when the U.S. Supreme Court ruled that overly strict ballot access laws for new parties and independent candidates violatetheU.S.Constitution. Sincethen,every state has been sued by minor party or independent candidates, or both, over whether its laws are too stringent. All fifty states and the District of Columbia have lost at least one lawsuit on this subject. Despite over fifty years of federal litigation and over 120 years of state court constitutional litigation, there are few resources available to help legislators and judges know how to set the number of signatures. On the one hand, the number of signatures should be high enough to avoid overcrowded ballots. On the other hand, if the requirements are too strict, voting rights are injured. When a candidate or a party is kept off the ballot, individuals who desire to vote for that candidate or party are injured. As the Supreme Court said in Bush v. Gore, “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” In states where voter registration forms ask the applicant to choose a party, 2 percent of all U.S. voters are members of political parties other than the Democratic and Republican Parties. The Constitution protects U.S. voters’ right to vote, and one can logically assume that U.S. voters want to vote for candidates representing their party. However, restrictive ballot access laws and overcrowded ballots may infringe upon the constitutionally protected right to vote.

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