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

CRS Report for Congress
Substitution of Nominees on the Ballot for
Congressional Office, “Sore Loser” Laws, and
Other “Ballot Access” Issues
September 29, 2006
Jack Maskell
Legislative Attorney
American Law Division


Congressional Research Service ˜ The Library of Congress

Substitution of Nominees on the Ballot for
Congressional Office, “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.



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........................8
Sore Loser Laws..............................................10
Filing Deadlines..............................................11
Show of Support.............................................13
Combinations of Factors.......................................15



Substitution of Party Nominees on the Ballot
for Congressional Office, State “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


1 Texas Democratic Party v. Benkiser, ___ F.Supp. ___ , Case No. A-06CA-459-SS
(D.C.W.Tex 2006).
2 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.
3 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.
4 State of Ohio, Office of the Attorney General, Opinion No. 2006-035, August 10, 2006.
5 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.

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 “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


6 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).
7 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 Jack Maskell.
8 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).


9 Article I, Section 4, cl. 1. This provision of the Constitution reserves to Congress a
residual, superceding authority to adopt legislation concerning such elections.

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
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


10 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 federalthth
elections, such as the 15 (Negro/emancipated slave voting rights), 19 (women’s suffrage),thth
and 26 Amendments (18-year old vote), as well as equal protection principles of the 14
Amendment, and federal statutory requirements for voting rights.
11 Article I, Section 5, cl. 1:”Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members ....”
12 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).

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 and13
publication of election returns....
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 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.14
Mosely, 238 U.S. 383, 386; Newberry v. United States, 256 U.S. 232, 255.
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


13 Smiley v. Holm, 285 U.S. 355, 366 (1932).
14 285 U.S. at 366-367.

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 so-called “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 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


15 17 Stat. 28, ch. 11, § 3, February 2, 1872, now 2 U.S.C. § 7.
16 See Federal Election Campaign Act, as amended, 2 U.S.C. §§ 431 et seq.
17 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.
18 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-th
1990, Senate Doc. 103-33, at 413 (1995), S.Rept. 1381, 88 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
(continued...)

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
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,


18 (...continued)
constitutional qualifications to congressional office. Powell v. McCormack, U.S. Termth
Limits, Inc. v. Thornton,; Cook v. Gralike; Schaefer v. Townsend, 215 F.3d 1031 (9 Cir.th

2000); Campbell v. Davidson, 233 F.3d 1229 (10 Cir. 2000).


19 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.
20 New Jersey Statute Annotated, §19:13-20 (1999).
21 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).


22 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, 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, 220-221.

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


23 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).
24 “[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).
25 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.
26 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).


27 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 ofth
Ohio v. Blackwell, ___ F.3rd ___ No. 04-4215, at 5 (6 Cir. September 6, 2006).

severe burdens on plaintiffs rights must be narrowly tailored and advance a
compelling state interest. Lesser burdens, however, trigger less exacting review,
and a State’s “important regulatory interests,” will usually be enough to justify28
“reasonable nondiscriminatory restrictions.”
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 overcome29
to be placed on the ballot. 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 the30
candidate’s support in the electoral process.
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 primary31
election.” This so-called “disaffiliation” requirement, along with the “sore loser”
provision, were found by the Supreme Court to further important and compelling
state interests:


28 Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
29 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.
30 U.S. Term Limits, Inc. v. Thorton, 514 U.S. at 835.
31 Storer v. Brown, 415 U.S. at 726.

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 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 of32
government. The Federalist, No. 10 (Madison).
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 access33
to the ballot.” As such, the Court found that the state’s interests “to reduce election
- and campaign- related 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 ballot34
manipulations, and discouraging party splintering and ‘unrestrained factionalism,’”
were sufficient state interests promoted by this ban.


32 Storer v. Brown, 415 U.S. at 734-736.
33 Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997).
34 Timmons, 520 U.S. at 358, 364.

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.
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


35 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.
36 State ex rel. McCarthy v. Moore, County Auditor, 87 Minn. 308, 92 N.W. 4 (1902).
37 State ex rel. O’Sullivan v. Swanson, 257 N.W. 255 (Sup. Ct. Neb. 1934).
38 State ex rel. Sundfor v. Thorson, 6 N.W. 2d 89, 90-92 (Sup. Ct. N.D. 1942).
39 Storer v. Brown, 415 U.S. at 731, 735, 736; Patriot Party v. Allegheny City Dept. of
Elections, 95 F.3d at 264-265.

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
am endm ent . ”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 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


40 382 F. Supp. 381, 387-388 (M.D.Pa. 1974).
41 Id. at 387.
42 Whig Party of Alabama v. Siegelman, 500 F.Supp. 1195, 1205 (D.C. Ala. 1980).
43 Maddox v. Wrightson, 421 F. Supp. 1249, 1252 (D.C. Del. 1976).

distribution of voting machines and supplies remain to be accomplished before44
[the] November [election].
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; some47
have been distributed. The general absentee ballots are currently being printed.”
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 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


44 Id. at 1252.
45 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).


46 Valenti v. Mitchell, supra at 301.
47 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.
48 Note, for example, instances of Senate candidate Mel Carnahan in Missouri, in 2000;
Representatives Hale Boggs of Louisiana, and Nick Begich of Alaska, in 1972; and
Representative Clement Miller of California in 1962.
49 New Jersey Democratic Party. v. Samson, 814 A.2d 1025.

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
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,


50 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 ofth
Alabama v. Hand, 933 F.2d 1568, 1574 (11 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.
51 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.”
52 Libertarian Party of Ohio v. Blackwell, slip op. at 5.

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 case56
because they cannot get on the ballot otherwise.
In New Mexico, a statutory scheme was upheld by the United States District57
Court of New Mexico in a decision released September 18, 2006. 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


53 Lubin v. Panish, 415 U.S. 709, 714 (1974); Jenness v. Fortson, 403 U.S. 431, 442 (1971).
54 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).
55 Id. at 10.
56 Id.
57 Libertarian Party of New Mexico v. Vigil-Giron, ___ F. Supp. ___, Civ-06-0615
MV/ACT, (D.N.M September 18, 2006).

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 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 the62
important State interests served by the requirements.
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,


58 American Party of Texas v. White, 415 U.S. 767 (1974).
59 Jenness v. Fortson, 402 U.S. 431 (1971).
60 Libertarian Party of New Mexico v. Vigil-Giron, at 13.
61 Id. at 19.
62 Id. at 23.
63 Lee v. Keith, No. 05-4355, (7th Cir. September 18, 2006).

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:
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 Amendemnt 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 and65


influence,” ... and that is effectively what Illinois has done.
64 Lee v. Keith, at 2.
65 Lee v. Keith, at 9, 10, 13.