9.26 Myth that Candidates Will Be Kept off the Ballot

An anonymous posting on the Volokh election blog in 2012 said:

“A state dominated by one party could try to use NPV to rig a presidential election, by setting ballot qualification requirements that would be very tough for the other party to meet … thus knocking the other party’s votes in that state to 0.”[608]

The reasons for the failure of past politically motivated attempts to keep particular candidates off the ballot under the current system apply equally to the National Popular Vote Compact.

First, the Constitution’s Equal Protection Clause and First Amendment provide a strong legal basis for thwarting politically motivated attempts to keep presidential candidates off the ballot in certain states.

California’s unsuccessful 2019 attempt to make ballot access dependent on a presidential candidate’s disclosure of tax returns

After Donald Trump was elected President in 2016, bills were introduced in several state legislatures to deny ballot access to a presidential candidate who had not publicly disclosed his or her income tax returns.

In California, a bill (SB 149) entitled the “Presidential Tax Transparency and Accountability Act” was introduced along these lines in 2017.

Before the California legislature acted on the bill, the California Office of the Legislative Counsel concluded that the legislation:

“would be unconstitutional if enacted.”

Despite this prescient warning, the legislature passed the bill.

California Governor Jerry Brown then vetoed the bill, saying:

“This bill is a response to President Trump’s refusal to release his returns during the last election. While I recognize the political attractiveness—even the merits—of getting President Trump’s tax returns, I worry about the political perils of individual states seeking to regulate presidential elections in this manner. First, it may not be constitutional. Second, it sets a ‘slippery slope’ precedent. Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?”[609] [Emphasis added]

Despite Governor Brown’s veto in 2017, the California legislature passed a similar bill (SB 27) in 2019. Governor Gavin Newsom signed the bill in 2019.[610]

The courts found five different reasons to invalidate California’s 2019 law, including:

• three federal constitutional reasons
• one state constitutional reason
• one reason based on the fact that an existing federal statute pre-empted state laws on the topic.

Federal District Judge Morrison C. England wrote in Griffin v. Padilla in 2019:

“The Court appreciates the State’s desire for transparency in the political process. Requiring candidates to disclose tax returns could shed light on sources of income, potential conflicts of interest, and charitable tendencies. This information is important to a voter’s ability to evaluate how a candidate’s financial interests might affect future decision making.”

“It is not the job of the courts, however, to decide whether a tax return disclosure requirement is good policy or makes political sense. Those are questions delegated to the political branches of the federal government, that is Congress and the President, under Articles I and II of the United States Constitution. Those are the branches that make the law. Article III Courts such as this one, on the other hand, are tasked with interpreting the law and evaluating whether laws passed by the other two branches of federal government or by the states are constitutional in the first place. The job of the federal courts is therefore to follow the law and to decide questions based on the United States Constitution, which is the only thing the Court is being asked to do in these cases. Courts created under Article III of the United States Constitution are not concerned with political victories or who may or may not ‘win.’ Instead, it is the Court’s job to make sure the Constitution wins.”[611]

Judge England then issued a preliminary injunction barring the enforcement of California’s 2019 law as applied to presidential candidates for the following four reasons:

“The Court finds that Plaintiffs are likely to prevail on the merits of their arguments that the Act

(1) violates the Presidential Qualifications Clause contained in Article II of the United States Constitution;

(2) deprives Plaintiffs of their rights to associate and/or to access the ballot, as guaranteed by the First Amendment of the Constitution;

(3) further violates the Constitution's Equal Protection Clause as set forth in the Fourteenth Amendment; and

(4) is preempted by the provisions of [Ethics in Government Act] in any event.”[612]

The federal district court’s decision in Griffin v. Padilla said:

“The Presidential Qualifications Clause of the United States Constitution sets forth the eligibility requirements for the Office of President:

‘No person except a natural born Citizen … shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. U.S. Const., art. II, § 1, cl. 5.’

“The United States Supreme Court analyzed the Constitution’s Qualifications Clauses in the seminal case, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). There the Court held that the Framers intended the foregoing language to ‘fix as exclusive the qualifications in the Constitution,’ ‘thereby divest[ing] States of any power to add qualifications.’ Id. at 801, 806, 115 S.Ct. 1842. The Court reasoned that ‘the text and structure of the Constitution, the relevant historical materials, and, most importantly, the basic principles of our democratic system all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power’ … Id. at 806, 115 S.Ct. 1842. Significantly, the Court rejected any notion that a state can cloak an otherwise impermissible qualification as a ballot access issue subject to regulation by the states under the Elections Clause, stating that states cannot indirectly create new eligibility requirements by ‘dressing eligibility to stand for [public office] in ballot access clothing. Id. at 831, 115 S.Ct. 1842.”[613]

California’s 2019 law was also found to be unconstitutional based on First Amendment rights of association and ballot access. The federal district court’s decision in Griffin v. Padilla said:

“The Constitution guarantees, among other things, ‘the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’ Illinois State Bd. of Elections v. Social Workers Party, 440 U.S. at 184, 99 S.Ct. 983 (quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). Ballot access restrictions ‘implicate the right to vote’ because ‘limiting the choices available to voters … impairs the voter’s ability to express their political preferences.’ Id. The rights of individual voters to associate with, and vote for, the candidate of their choice ‘rank among our most precious freedoms.’ Williams, 393 U.S. at 30-31, 89 S.Ct. 5 (citing Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964)). Moreover, as the Supreme Court also noted, the ‘freedom to associate as a political party’ also ‘has diminished practical value if the party can be kept off the ballot.’ Illinois State Bd. of Elections v. Social Workers Party, 440 U.S. at 184, 99 S.Ct. 983.

“According to Plaintiffs, by barring partisan presidential candidates who decline to release their tax returns from appearing on the California primary ballot, the Act imposes a severe burden on voters’ ability to access the ballot and vote for the candidate of their choice. Additionally, President Trump further claims that the Act similarly burdens his ability to appear on the Republican primary ballot and to associate with Republican voters in California. The Trump Campaign as well as the Republican National Committee and the California Republican Party make similar arguments.”[614]

In addition, California’s 2019 law was found unconstitutional based on the Equal Protection Clause of the 14^th Amendment. The federal district court’s decision in Griffin v. Padilla said:

“The Fourteenth Amendment's Equal Protection Clause guarantees that ‘no state shall … deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const., amend. XIV, § 1. Two of the related cases … argue that the Act is unconstitutional to the extent it requires a political party’s candidates for President to disclose his or her tax returns in the primary election but exempts independent candidates from doing so. By distinguishing among constitutionally eligible candidates for President in that manner, Plaintiffs argue that the Act imposes greater burdens on the voting and associational rights of California voters who support major party candidates than those who support independents. According to Plaintiffs, this triggers equal protection concerns. See Lubin v. Panish, 415 U.S. at 716, 94 S.Ct. 1315 (‘The right of a party or an individual to a place on the ballot is entitled to protection and is intertwined with the rights of voters’); see also Matsumoto v. Pua, 775 F.2d 1393, 1396 (9th Cir. 1985).[615]

Moreover, the court found that California’s 2019 law was pre-empted by the federal Ethics in Government Act.

As the ads on late-night TV say, “But wait, there’s more.”

Before the U.S. Court of Appeals for the Ninth Circuit could consider an appeal of Judge England’s decision, the California State Supreme Court delivered the coup de grâce to California’s 2019 law by ruling that it violated the state Constitution.[616], [617]

Unsuccessful attempt to keep Donald Trump off the ballot in 2024 based on the Insurrection Clause of the 14th Amendment

Section 3 of the 14^th Amendment provides:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

After a five-day evidentiary hearing, a Colorado state court found that former President Donald Trump had engaged in insurrection within the meaning of Section 3. That lower court provided no relief to the plaintiffs, because it found that the word “office” in the 14^th Amendment did not apply to the presidency.

The Colorado Supreme Court reached the opposite conclusion on the meaning of the word “office” and, after ruling on various other issues, ordered that Trump could not be listed on Colorado’s ballot in 2024.

Similar litigation was proceeding in several other states at about the time of the Colorado decision.

In Trump v. Anderson, the U.S. Supreme Court reversed the Colorado Supreme Court citing the “patchwork” that would result if single states could keep presidential candidates from the ballot. The Court wrote:

“The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).

“The ‘patchwork’ that would likely result from state enforcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole. U. S. Term Limits, 514 U. S., at 822. But in a Presidential election ‘the impact of the votes cast in each State is affected by the votes cast’—or, in this case, the votes not allowed to be cast—‘for the various candidates in other States.’ Anderson, 460 U. S., at 795. An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.”[618] [Emphasis added]

Numerous court precedents protecting ballot access for minor-party or independent presidential candidates suggest that a major-party candidate would not be kept off the ballot.

The question of ballot access did not, of course, arise until the 1890s, when government-printed ballots were first used in the United States (section 3.11).

Over the years, the major political parties have often used numerous sharp-elbowed tactics to try to keep minor parties off the ballot. These tactics have included state laws requiring that minor parties submit petitions signed by an unreasonably large number of voters in order to appear on the ballot, that minor parties submit the required petitions by unreasonably early deadlines not applicable to major parties, that minor parties receive an unreasonably large number of votes in order to stay on the ballot, and that an unreasonably large number of voters remain registered with a party for it to stay on the ballot.

In addition, major parties often oppose ballot access for specific minor-party and independent candidates because of a concern (often well-placed) that they will become spoilers in a specific upcoming race.

For example, in October 2012, the Pennsylvania Republican Party tried to keep Libertarian presidential nominee Gary Johnson (a former Republican Governor of New Mexico) off the presidential ballot in Pennsylvania.

“The Pennsylvania Republican Party chairman … said he was not about to give Mr. Johnson an easy opening to play a Nader to Mr. Romney’s Gore in Pennsylvania this year.”[619]

Despite Pennsylvania Republican Party efforts, courts ordered that Johnson appear on the 2012 ballot in Pennsylvania. Johnson ultimately received only 0.99% of the national popular vote in 2012.

Ballot Access News has listed 40 lawsuits where the courts have invalidated a variety of efforts to keep candidates off the ballot for reasons that go beyond the specific qualifications stated in the state or federal constitutions. The only cases where such laws have been upheld (and only in some states) have involved laws requiring candidates to resign their current office in order to run for another one.

As Richard Winger reported in 2019:

“Ever since the start of government-printed ballots in 1890, courts have been striking down state election laws (aside from petitions and fees) that prevent candidates from getting on the ballot for federal office. [There have been] 40 lawsuits in the last 100 years that have struck down barriers to the ballot. These barriers included loyalty oaths; bans on felons; bans on candidates who were holding a state elective office and hadn’t resigned the state job; laws requiring candidates to be registered voters; and laws requiring residency in a particular district or state.”[620]

Despite the obstacles, presidential candidates who have significant national support can generally qualify for the ballot in most or all states.

For example, the Libertarian Party received the most votes nationwide of any minor-party in 2020, 2016, and 2012. In 2020, that party was on the ballot for President in all 50 states (when Jo Jorgensen received 1% of the national popular vote). In 2016, it was on the ballot for President in all 50 states (when Gary Johnson received 3% of the national popular vote). In 2012, the Libertarian Party was on the ballot in every state except Oklahoma (when Gary Johnson received 1% of the national popular vote).

See section 9.30.16 for a list of other minor parties that have been on the ballot in all 50 states.

Overall, the lack of success by major political parties in keeping minor parties off the ballot indicates that it would be even less likely that a major-party presidential candidate could be kept off the ballot in any state.

There is no history of major-party presidential candidates being denied ballot access because of the date of their nominating convention.

After each political party nominates its presidential-vice-presidential slate at its national convention, it must officially notify each state’s election officials of its choice so that the state can include the names of the nominees on their ballots (section 3.2.2).

The various state deadlines start in early August.[621]

In 2004, the Republican National Committee scheduled the party’s National Convention to start on August 30—considerably later than usual. The convention’s late date created the possibility that there would be no Republican presidential candidate on the Alabama ballot in 2004, because the convention was scheduled to be held after Alabama’s pre-existing statutory deadline for each political party to provide the name of its national nominees to state officials. The problem was satisfactorily resolved when the Alabama legislature agreed to pass special legislation temporarily changing the state’s deadline to accommodate the Republicans.

In 2012, special legislation was required in several states, because the Republican National Convention was held in late August, and the Democratic Convention was held in early September.

In 2024, the Alabama legislature similarly passed special temporary legislation to accommodate the relatively late date (August 19) of the Democratic National Convention.

In 2024, Ohio Republican legislative leaders initially resisted passing legislation to accommodate the Democratic National Convention (which was scheduled to start 12 days after Ohio’s pre-existing statutory deadline). The legislature then adjourned without accommodating the Democrat’s schedule. Republican Governor Mike DeWine broke the impasse by calling the legislature into a special session, which then promptly passed the required temporary change in Ohio’s deadline to accommodate the Democrats.[622]

The failed attempt to keep Obama off the Kansas ballot is a further reminder that the public does not support attempts to keep candidates off the ballot.

On September 13, 2012, the Kansas State Objections Board (consisting of Republican Secretary of State Kris Kobach and two other Republican statewide officeholders) considered a motion to keep Democrat Barack Obama off the presidential ballot in Kansas.

The New York Times reported that the motion was abandoned a day later as a result of “a wave of angry backlash.”[623], [624]

The public’s reaction to the Republican challenge to Obama’s access to the ballot in Kansas in 2012 is a further reminder of the fact that the public (even in a state that voted heavily against Obama) would not tolerate an attempt by partisan officials to create a one-party election.

Footnotes