BALLOT ACCESS BEST PRACTICES
Petitioning and Fees: the two leading methods for ballot access requirements for independent candidates, in the United States, are petitions and filing fees. The United States Supreme Court ruled in 1972 and again in 1974 that if a state uses a filing fee, it must have an alternate procedure for indigent candidates who can’t afford filing fees.
If a state does require a petition, that petition should not exceed 5,000 signatures. In the entire history of government-printed ballots in the United States, back to 1888, there has never been a regularly-scheduled partisan election with more than eight candidates, if that state required more than 5,000 signatures. Justice Harlan said in Williams v Rhodes, 393 U.S. 23 (1968), at page 47, that he did not believe having as many as eight candidates for a particular office causes any voter confusion.
Great Britain and Canada rely on filing fees to keep their House of Common ballots uncrowded. Great Britain requires candidates for that office to pay 500 pounds, and also to submit 10 signatures. The money is returned if the candidate polls at least 5% of the vote. Canada requires $1,000 and 100 signatures for candidates for House of Commons. These requirements work well in practice. They prevent litigation over whether a particular candidate or party should be on the ballot. By contrast, courts in the United States are constantly having to adjudicate ballot access lawsuits. The British and Canadian requirements apply to every candidate, whether he or she is the nominee of a large party, a small party, or an independent. Thus the principle of equality is upheld.
Deadlines: deadlines for getting on the November ballot should be in mid-August. If they are later, states may have trouble determining which candidates should be on the ballot in time to print overseas absentee ballots, which must be mailed no later than 45 days before an election. But if the deadlines are earlier than mid-August, they may prevent the ability of voters to support a late entry, which they may want to do if disturbing facts about the candidates already running are revealed. The 2016 presidential election shows that late-emerging candidates of significance to emerge late in the season. Evan McMullin, an independent presidential candidate supported by Republicans who did not believe Donald Trump would be a good candidate, did not announce until August 8. He was able to get on the ballot in eleven states, but he would have appeared in many more if the deadlines in most states had been later.
In 2000, the United States State Department criticized the new election law of Azerbaijan, because that law set a filing deadline of six months before the election. The United States argued that this deadline was too restrictive, yet many deadlines in the United States are far earlier. In Arkansas in 2016, the independent petition deadline (for office other than president) was in November 2015.
States should not require newly-qualifying parties to participate in a government-administered primary. New parties, and small parties, can choose their nominees in conventions or other party meetings. The nation’s leading authority on election administration, Dr. Joseph P. Harris, wrote in “A Model Direct Primary System” in 1951 that parties that polled less than 10% of the vote in the last election should nominate by convention. His study was sponsored by the National Municipal League, which has since changed its name to the National Civic League.
Minor and New political parties
30 states and the District of Columbia have voter registration forms that ask the voter to choose a party. In those 31 jurisdictions, it is a good practice to use that data to determine whether a party should qualify for the ballot. Clearly, if a voter chooses to affiliate with a particular party on the voter registration form, that voter is interested in that political party.
More and more states have accepted the idea that voter registration data should be used to determine if a party has enough support to be on the ballot. These states include Alaska, Arizona, California, Colorado, Delaware, Louisiana, Maine, Maryland, Massachusetts, Nevada, and Oregon. Most of these states use voter registration data as one variable; commonly these states also use petitions and election returns as alternates.
Of course, this method is not available in the 20 states that do not ask about party membership on voter registration forms. Texas voter registration forms do not ask about party membership.
Voter registration data seems obviously and intuitively more meaningful that the number of signatures a group can gather on petitions. The chief variable of whether a voter signs a ballot access petition, according to many professional petition circulators, is whether that voter has a propensity to be helpful to the circulator. Because most petitions to place a group on the ballot are now circulated by professionals, when states rely on petitions to determine whether a group should get on the ballot, ballot access becomes largely a function of whether that group has enough money to hire professional circulators.
Almost all states also use election returns to determine if a group has enough support to deserve a spot on the ballot in the next election. The median vote test of the states that use a vote test is 2% of the total vote cast. It is rare for a party that has lost its vitality to be able to poll as much as 2% in a statewide partisan race, so using election returns to decide whether to keep a party on the ballot is a good practice. One of the few disadvantages of using voter registration data to determine whether to keep a party on the ballot is that some parties may retain a fairly substantial number of registrants, even after those groups have gone dormant. Voter registration is very slow to change. Also, groups that include the word “independent” or “independence” in their names commonly attract a very large number of registrants, even if they are organizationally weak and have little popular support. Examples are the American Independent Party of California, which now has 507,377 registrants but which ran no candidates in 2016; and the Independent American Party of New Mexico, which has 4,661 registrants but which hasn’t run anyone for public office since 2012.