OUTDATED, OVER REGULATED AND
JUST PLAIN COMPLICATED:
How Ballot Access Laws Deny Texas Voters a
Free Choice at the Polls
April 24,2017 ~ Texans for Voter Choice ~ texasvoterchoice.org
Once upon a time in Texas, any qualified citizen could run for public office. All you had to do was throw your hat in the ring, so to speak. As a result, Texans could vote for any candidate they wanted. People just wrote their choices down on a piece of paper and dropped it in a box. All the government did was tally votes and announce the winners.
For the first 100-plus years of American history, every other state ran elections the same way. But while these early elections provided voters with complete freedom in their choice of candidates, they offered little to protect voters’ privacy. It was therefore common for voters to be threatened, harassed or even bribed as they approached polling stations. By the turn of the 20th century, these problems had become so rampant that states began printing official ballots, which listed every candidate running for any office, in an effort to address them. The idea was to protect voters from interference by allowing them to make their selections in private.
The reform worked almost overnight: since it was impossible to verify that a threat or bribe had its intended effect, attempts to exert such influence ceased. But what started as a reform intended to protect voter choice has become the very thing that denies Texans their freedom of choice at the polls today. That’s because Texas has enacted a complex and arcane system of laws that make it extraordinarily difficult and expensive for candidates to appear on the ballot unless they are nominated by one of the two oldest parties. Under this system, Republicans and Democrats are listed automatically, once their nominees are chosen by means of taxpayer- funded primary elections. But for all other parties and independent candidates, a completely different set of rules applies.
In this report, Texans for Voter Choice analyzes Texas ballot access laws as compared with those enacted by the other 49 states and the District of Columbia. The report identifies the most important statutory provisions that limit voter choice, and explains how they deviate from the proven best practices implemented in other states. Based on this comparative analysis, we conclude that the Texas statutory scheme denies Texas voters a free choice of candidates, contrary to its original purpose. The report then discusses HB 3068, the Texas Voter Choice A ct, and how it can restore voter choice in Texas by establishing fair and reasonable ballot access procedures for new party, minor party and independent candidates.
The analysis in this report is based on a single criterion: the extent to which Texas ballot access laws maximize voter choice by ensuring that all candidates have an equal and fair opportunity to participate in the electoral process, while protecting the state’s legitimate regulatory interests.
This criterion is derived from the balancing test the Supreme Court has established for analyzing the constitutionality of ballot access laws. Under that test, a court must:
“first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
The Supreme Court developed this test in an effort to reconcile the competing rights and interests implicated by ballot access laws. The Court has recognized, for instance, that such laws may violate voters’ right to cast a meaningful vote, by limiting their choice of candidates. See Williams v. Rhodes, 393 U.S. 23, 31 (1968). At the same time, the Court recognizes that states have a legitimate interest in regulating access to the ballot, to protect the order and integrity of the electoral process. See Anderson, 460 U.S. at 788. Under the foregoing test, ballot access laws are more likely to be unconstitutional to the extent that they impose burdens that are more severe than necessary to protect a state’s legitimate interests.
Similarly, the criterion set forth above presumes that ballot access laws are better to the extent that they maximize voters’ freedom of choice, while protecting the state’s legitimate interests, and worse to the extent that they unduly limit voter choice.
HOW BALLOT ACCESS LAWS DENY TEXAS VOTERS A FREE CHOICE
TEXAS BALLOT ACCESS LAWS ARE OUTDATED – Collecting signatures on paper nomination petitions is costly, inefficient and unnecessary.
The core provision of Texas’ ballot access statutory scheme is more than a century old. Enacted in 1905, it requires that minor party and independent candidates submit nomination petitions with valid signatures equal in number to 1 percent of the vote in the last gubernatorial election.1 When the provision first took effect in 1906, it required 2,802 signatures for statewide office. In 2016, that same provision required 46,321 signatures for statewide office.
Despite the advance in technology that has occurred in the last 112 years, and the exponential increase in the number of signatures needed, Texas still requires that signatures be collected the same way they were in 1905 – by hand, using a paper nomination petition. This is one of the most important reasons why ballot access has become so burdensome and expensive for minor party and independent candidates. To ensure compliance given normal rates of invalidation, they generally must submit approximately 50 percent more signatures than the requirement – or at least 69,000 for statewide office in 2016. This makes hiring paid petition circulators a practical necessity. At the market rate of $3 per signature, a petition drive can easily cost a minor party or independent candidate more than $200,000.
Several factors that are unique to the Texas statutory scheme significantly increase the burden and expense of petition drives:
Reform Needed: Authorize a Secure Online Petitioning System
Maintained by the Texas Secretary of State.
Texas could eliminate the burden and expense of conducting petition drives immediately, by authorizing voters to sign nomination petitions online, through a secure portal maintained by the Secretary of State. Such a system would allow minor party and independent candidates to demonstrate public support without the inefficiency and waste of collecting signatures by hand. It would also reduce the state’s administrative expenses, by verifying signers’ eligibility and registration status and validating petitions automatically. This reform has already been implemented in Arizona, where it is operating successfully (see http://apps.azsos.gov/equal/).
Best Practice: Authorize voters to sign nomination petitions online.
Best Practice: Authorize voters to sign nomination petitions for any candidate for whom they are eligible to vote, whether they vote in primary election or not.
Best Practice: Eliminate oath requirements that may have a chilling effect on petition signers.
THE TEXAS BALLOT IS OVER REGULATED – Signature requirements and filing deadlines are too restrictive.
Texas’ 1 percent signature requirement may have been reasonable in 1905, when it amounted to only 2,802 signatures for statewide office, but it is far too restrictive now. No state that has required as few as 5,000 signatures has ever had more than eight candidates on the ballot for statewide office. Texas therefore has no legitimate interest in requiring more than nine times that amount (46,321 in 2016). The Texas requirement is among the worst in the nation: only four states require more signatures for minor party and independent candidates for statewide office (Minnesota, North Carolina, California and Georgia).
The signature requirement for independent candidates for president is even worse. In 2016, 1 percent of the total vote in the last presidential election was 79,939. Once again, this requirement is among the worst in the nation (only California, Florida and North Carolina require more). In addition to being far greater than necessary to ensure an orderly ballot, Texas’ signature requirement for independent presidential candidates runs afoul of the Supreme Court’s decision in Anderson. In that case, the Court recognized that states have a “less important interest” in regulating the ballot in presidential elections than statewide or local elections, because the outcome of the former is largely decided by voters outside the state’s borders. Anderson, 460 U.S at 795.
The high signature requirements that Texas imposes are even more burdensome due to its early filing deadlines and the short time permitted for collecting signatures. Independent candidates for president, for instance, were required to submit their nomination petitions on May 9, 2016 – six full months before the election. Further, Texas does not permit candidates to collect signatures until after the primary election, which fell on March 1, 2016. That allowed independent presidential candidates just 69 days to collect 79,939 valid signatures.
The filing deadlines for minor parties and independent candidates for statewide office come later (May 23, 2016 and June 23, 2016, respectively), but these candidates must file additional forms (an “application for nomination” or “declaration of intent”) in December of the preceding year. If they fail to do so, they will not be listed on the ballot. They are also prohibited from collecting signatures until after the primary election.
Reform Needed: Establish Reasonable Signature Requirements and Filing Deadlines.
Nationwide data demonstrates that a requirement as low as 5,000 signatures is sufficient to ensure an orderly ballot. Therefore Texas’ signature requirements of 46,321 for minor party and independent statewide candidates, and 79,939 for independent presidential candidates, are far greater than necessary to protect the state’s interests. Combined with early filing deadlines and short signature collection periods, these high signature requirements make Texas ballot access laws among the most restrictive in the nation. Texas should require no more than 10,000 signatures for statewide office and a filing deadline in July.
Best Practice: Establish flat signature requirements of 10,000 or less for statewide office. Best Practice: Establish filing deadlines in July.
Best Practice: Eliminate unnecessary steps such as filing applications for nomination and declarations of intent due in the year preceding an election.
TEXAS BALLOT ACCESS IS JUST PLAIN COMPLICATED – And the excessive requirement for retaining ballot access forces minor parties to repeat the process in successive elections.
Each requirement and restriction imposed by Texas’ complex statutory scheme regulating ballot access presents a potential pitfall that can lead to the exclusion of a qualified candidate or party. Yet, until 1967, Texas did not impose any restrictions whatsoever on minor parties’ ballot
access. Minor parties simply nominated their candidates according to their own rules, and their nominees were placed on the ballot automatically, just as the Republican and Democratic nominees are today.
In 1967, the Legislature amended its statutory scheme to require that minor parties’ poll at least two percent in the last gubernatorial election to retain ballot access. Parties that failed to do so were required to comply with the one percent signature requirement currently in place. In 1987, the Legislature added a provision allowing minor parties to retain ballot access if any of their statewide candidates received five percent of the vote in the last general election.
Although most states use election returns to determine whether a party may retain ballot access in the next election, the median vote test for all states is only 2 percent of the total vote in a statewide election. By setting its vote test at 5 percent (except for gubernatorial elections), Texas makes it exceedingly difficult for a minor party to retain ballot access in successive elections, and to build support over time. As a result, minor parties in Texas are stuck in a perpetual cycle, which forces them to drain their financial and human resources to obtain ballot access in a single election, leaving them with little capacity to mount viable campaigns that enable them to retain ballot access in the next election.
Best Practice: Establish ballot access retention requirements of 2 percent in a statewide race.
TOWARD REFORM: THE TEXAS VOTER CHOICE ACT
Texans who want to run for public office as minor party or independent candidates face some of the most difficult and restrictive barriers in the nation. Outdated and inefficient ballot access procedures, unnecessarily high nomination petition signature requirements, early filing deadlines, short signature gathering periods, restrictions on who may sign nomination petitions and many other burdensome requirements combine to make mounting such a candidacy prohibitively difficult and expensive for all but the most determined citizens. As a result, Texas voters often lack meaningful choices at the polls. In each election cycle, for example, about half the races for the state legislature have only one candidate running unopposed, giving voters no choice at all.
The Texas Voter Choice Act, H.B. 3068, amends certain provisions of the Texas Election Code to protect the First and Fourteenth Amendment rights of the citizens of Texas to cast meaningful votes in local, state and federal elections. It does so by modernizing ballot access procedures through the implementation of secure, web-based technologies now commonly used for commercial transactions throughout the state of Texas and nationwide. At the same time, it eliminates needless regulations that restrict voter choice, while establishing reasonable requirements for independent and new party candidates to appear on the ballot.
The Texas Voter Choice Act – Key Provisions:
- Establishes Reasonable Signature Requirements and Filing Deadlines
- Authorizes Voters to Sign Nomination Petitions Online
- Eliminates Restrictions on Voters’ Right to Sign Nomination Petitions
- Eliminates Unneeded Filing Requirements for Candidates