Ballot access laws define the scope of voter choice. For democracy to function, every viable candidate should be able to compete, and every election should meaningfully reflect diverse viewpoints, which is why FairVote includes Reasonable Ballot Access among its key policies for promoting democratic values in its Policy Guide 2015.
The leading expert on ballot access laws in the United States is Richard Winger, editor of Ballot Access News. He is a longtime ally of FairVote - in fact, I had the opportunity to interview him for the inaugural episode of FairVote's podcast, FairVote Voices, back in December of 2012.
Today, we are proud to publish this list of the 19 worst ballot access laws in the United States, authored by Richard Winger. Ballot access law is state law; every state can decide how candidates achieve representation on their ballots, so the list goes state by state in alphabetical order:
- Alabama. A new party, or a statewide independent candidate (for all office except president) needs a petition of 3% of the last gubernatorial vote. No one has managed to complete this petition since it came into existence in 1997 except the Libertarians in 2000. Furthermore, if a party does get on, it needs to poll 20% of the vote for any statewide office to stay on. Furthermore, the petition deadline in presidential years is in March.
- Arizona. A long section of the election code, passed in 1961 and declared unconstitutional in 1973, bans the Communist Party from the ballot and also says no one has a right to try to persuade someone of the virtues of communism. The law describes the "international communistic conspiracy" and makes reference to Cuba. I have asked legislators to repeal this, repeatedly, for 10 years, and even though sometimes a legislator says they will introduce a bill to repeal it, they never do.
- D.C. requires exactly 3,000 signatures to get on the general election ballot for any districtwide partisan office except president. But president needs about 4,700 valid signatures. D.C. also provides that a write-in presidential candidate may file a declaration of write-in candidacy, and the names of three candidates for presidential elector. But if someone uses this procedure, D.C. still won't count his or her write-in votes! This appears to contradict Bush v Gore, but the US District Court and US Court of Appeals still upheld that policy.
- Florida has very tolerant ballot access for every type of candidate, and doesn't require any petition, with the sole exception of an independent presidential candidate, who needs about 110,000 signatures by early July.
- Georgia's petition for US House and state legislature, 5% of the number of registered voters, is so severe, no legislative candidate successfully used the procedure in 2012 except for one candidate for the State House, Bill Bozarth. Incumbent independents don't need to petition, so Rusty Kidd didn't petition in 2012. No independent has successfully submitted the 5% petition for US House since 1964, and back in 1964, the petition wasn't due until October, the signatures weren't checked, they didn't need to be notarized, and no filing fee was needed. In 1964 the law was made worse (effective 1965). The petitions are now due in July, and each sheet must be notarized, and anyone who notarizes any sheets may not petition himself or herself, and a fee equal to 3% of the annual office salary is also needed. No minor party has ever complied with the 5% petition, which was passed in 1943. In special elections no petition is needed. Billy McKinney got on as an independent for one US House in 1982 but because redistricting was late that year, he only needed a 1.3% petition.
- Hawaii requires an independent candidate (for office other than president) to poll 10% in the open primary (or else to outpoll the winner of one of the partisan primaries for the same office). Very few voters choose an independent primary ballot because generally that ballot has no candidates at all on it.
- Illinois requires newly-qualifying parties to identify their nominees on the petition before the petition can circulate. Furthermore, separate petitions are required for each district and county office. So a new party that wanted to run a full slate of candidates for all federal and state offices would need one statewide petition, and a separate petition in each US House district, and State Senate district, and State House district. The petitions can only circulate for 3 months and are due in June. The district and county petitions are 5% of the last vote cast. So a new party would need several hundred thousand signatures, and circulators would need to ask signers on the street to sign 4 separate petitions, if working in a district with a State Senate up that year. They would also need more signatures on county office petitions.
- Maine petitions for a member of a small qualified party to get on his or her own primary ballot are very severe: 2,000 signatures of party members for statewide office, even if the party might only have a few thousand members.
- Maryland requires four times as many signatures for a statewide independent as an entire new party.
- Massachusetts has the same problem as Maine, but the statewide primary petitions for US Senator, Governor, Lieutenant Governor, are 10,000 signatures. Only party members and registered independents can sign. Both Maine and Massachusetts are irrational for not taking a party's size (number of registered voters) into account.
- Montana requires a statewide non-presidential independent candidate to submit a petition of 5% of the winner's vote, which means up to 17,000 signatures are sometimes required. But an entire new party can get on with 5,000 signatures exactly.
- New Hampshire requires a party petition to be signed by 3% of the last gubernatorial vote, and it is illegal to circulate such a petition in an odd year.
- New Mexico requires the nominees of small ballot-qualified parties to submit a petition, after they are nominated. This makes no sense whatsoever, but the petitions are 1% of the last gubernatorial vote. If New Mexico required the winner of a major party primary to submit a petition for general election ballot access after winning the primary, people would laugh at the very thought of such a law, but that is what New Mexico does to minor parties.
- North Carolina requires statewide independents to submit a petition signed by 2% of the last gubernatorial vote, which is about 90,000 signatures. The signatures are due in June. No statewide independent has ever qualified in North Carolina, except Ross Perot in 1992. North Carolina requires independent candidates for district office to submit a petition of 4% of the number of registered voters. No independent for US House has ever appeared on a government-printed ballot in North Carolina.
- North Dakota requires a small qualified party, which must nominate by primary, to attract a large number of voters to choose its primary ballot, or it can't nominate anyone for state legislature. The formula is 1% of the population of the district (that includes children and other ineligible to vote). That sounds easy but in effect it requires about 15% of the actual primary voters to choose a minor party's primary ballot. There have been no minor party legislative nominees on the November ballot since 1976.
- Oklahoma requires a newly-qualifying party to submit a petition signed by 5% of the last vote cast. No one has ever complied with this petition in a midterm year, when the petition burden is far greater because turnout in presidential years is so much higher than in midterm years. A party must poll 10% for President/Governor in order to stay on. No one can register into an unqualified party, except if a party ever does get on, and it fails the vote test and goes off, anyone can re-register into that party for the following two years. But all the party's registrants are removed when it fails to get 10% and must re-register.
- Pennsylvania requires a party to have a membership of at least 15% of the statewide registration to remain on the ballot. If this law were in effect in Rhode Island, DC, or Massachusetts, Republicans would be off the ballot. If it were in existence in Idaho and Utah, Democrats would be off the ballot. Also Pennsylvania puts petitioning groups at risk of paying court costs of over $100,000 if they submit a petition that is found not to have enough valid signatures.
- South Dakota requires a member of a small ballot-qualified party running in a primary for Governor, US Senator, US House, or Lieutenant Governor, to submit a petition of 250 party members. If a party only has 500 or so registered members, that is virtually impossible. Also a legislative candidate needs 50 signatures of party members.
- Texas requires independent presidential candidates to submit a petition of 1% of the last presidential vote, whereas an independent candidate for any other statewide office needs 1% of the last gubernatorial vote. The difference can be up to 40%. Independent candidate petitions are due weeks before the minor party petition is due.