Candidates v. parties: The constitutional constraints on primary ballot access laws

Georgetown Law Journal, Jul 2001 by Persily, Nathaniel

Although at the primary all candidates are members of the same party, they represent different political ideas and have different qualifications for national and party leadership .... In politics, one challenges establishments in primaries, not elections .... If discriminatory requirements prevent "independent" candidates from obtaining the requisite number of signatures to place on the ballot delegates pledged to them, then the primary becomes little more than a state-sponsored endorsement of the candidate of the party leadership.77

Once crossing that bridge-namely, the one connecting primary elections to the constitutional constraints on general elections-the Rockefeller court did not have far to go in declaring this particular collection of restrictions to be "undue" under the First Amendment. The court first emphasized the uniqueness of a presidential campaign: As opposed to state and local elections, presidential candidates must campaign throughout the nation and contend with more than fifty different ballot access laws. Thus, to make a state "not worth the effort" of a petition drive or a campaign, the state's ballot access laws need only be "substantially more burdensome than other states."78 When taking into account the actual number of signatures needed to qualify for the ballot in each of the thirty-one congressional districts, New York's ballot access laws were perhaps the "most restrictive," at least twice the number required by second-place Indiana. Then, the court turned to Forbes's particular experience: He spent about $1 million solely on a petition drive, hired 320 petition circulators (who worked a total of 37,500 hours), and he still came up short (after challenges) in four districts. (Pat Buchanan, who allegedly ran a "grass roots" campaign, was able to get on the ballot in twelve districts.)

After assessing the absolute burden imposed by the Republican rules, the court made an interesting and unprecedented logical move. It compared the Republican process of ballot access with the more lenient Democratic procedures. Given that the statute offered two options-either one of which a party could have chosen-how could the defendants argue that the more restrictive procedures were necessary to further the State's interests? Or as the court put it, the existence of the Democratic option "demonstrates that New York State has no compelling interest in a more restrictive rule than 0.5% per congressional district."79 Given the fact that both options were equally suited to prevent party splintering or extreme factionalism, the only possible interest underlying the Republicans' choice, as the court saw it, was to advantage the Republican State Committee's favored nominee. That additional increment of power aggrandizement (or some might say, autonomy) for the party elite could not be fabricated into a state interest. Citing Anderson v. Celebrezze, a case in which the two incumbent parties allegedly constructed ballot access rules that disadvantaged independent candidates, the court rejected the argument that a party could use the state in order to "assure monolithic control over its own members and supporters" and denied that the "particular interests of the major parties can automatically be characterized as legitimate state interests."80 For the court, the only relevant constitutional question for a party primary ballot access law was whether "a reasonably diligent independent candidate [could] be expected to satisfy the signature requirements, or will it be only rarely that [such a] candidate will succeed in getting on the ballot?"81 Given the totality of the burdens the New York electoral law imposed on Steve Forbes and his supporters, Judge Edward R. Korman (and the Second Circuit panel that affirmed him in a short and rushed opinion) concluded that an "independent" candidate, even one with unlimited funds, could not surmount the legal hurdles to ballot access in the Republican primary.82 In striking down the Republican option, only the Democratic option remained, and Forbes had easily surmounted those signature thresholds.