On Ballot Access, Trump Shouldn’t be Treated as More Equal than Others
Candidates get kicked off the ballot for reasons a lot flimsier than being an insurrectionist
As all eyes turn to the Supreme Court for a decision on Donald Trump’s presidential eligibility in light of Section 3 of the 14th Amendment, the nation is getting a crash course in an area that usually gets little attention: ballot access laws. Trump is not the first candidate for office who has faced removal from the ballot. The reality is that state ballot access laws are often arbitrary and poorly justified and political candidates of all stripes get booted out frequently. While disputes about the Constitution's ban on oath-breaking insurrectionists are novel, the potential outcome of Trump not being able to appear on the ballot would be far from unique.
In Ohio, a trans woman running for state legislature has been kicked off the ballot. There is no question that she is qualified for the office, or that she had secured the needed 50 signatures. The problem, the local board of canvassers ruled, stems from an obscure state law requiring petitions to list any name change from the past five years (changes from maiden to married names are excluded). Vanessa Joy officially changed her name in 2022, and her petitions showed only her current legal name. The instructions from the secretary of state made no mention of this law, and no space for complying with it appears on the required petitions forms. It’s likely it has never been enforced before.
Joy will have the opportunity to litigate the issue, but she’s far from alone. Across the country, would-be candidates are denied ballot access all the time. This often happens with far less procedural thoroughness, and for far more trivial reasons, than Donald Trump’s exclusion from ballots in Colorado and Maine. Reasons include failure to gather enough signatures, technical defects with petitions, ineligibility for the office, disputes over a candidate’s qualifications, rejection by a political party to appear on its primary ballot, sore loser laws barring candidates who previously lost a primary, and a host of other rules.
Far from rapidly shooting up to the Supreme Court, ballot access cases are toss-ups at best even when the candidate’s (or a political party’s) case that they were wronged is strong. The courts have developed muddled precedents and often expressed disinterest in the topic.
There is, in theory, a right to ballot access. Under the First and 14th Amendments, states are somewhat constrained with regard to why and how they can keep somebody out of a political race. Sometimes the courts will order a candidate put on the ballot, overturning state election authorities. But the reality is this right has the weakest protections of just about anything you could call a recognized right.
A Right—of Sorts
States deny ballot access through a tangle of rules that are often difficult to follow. These decisions are mostly made by elections officials through bare bones administrative proceedings, with possible appeal to state courts. They often include decisions about who’s eligible to a certain office, such as residency in a state legislative district, being a practicing lawyer for some offices, or compliance with state laws against holding or campaigning for multiple offices simultaneously.
The tenor of the coverage over Trump’s disqualification in Maine makes it look like Trump is being uniquely singled out. But the former president isn’t even the only candidate this year who is barred from that state’s Republican primary ballot. In fact, Chris Christie was also denied a ballot spot—not as an insurrectionist, but because of the state’s convoluted law requiring petition signatures to be verified by the local clerk in each town. According to Maine law, signatures turned in at the wrong municipal office, for a voter who lives in a neighboring city, are rejected. Christie also alleges, credibly, that some local officials failed to properly validate all the signatures he did give them.
After an administrative decision against him—Christie’s camp claims they secured 6,000 signatures, well above the 2,000 required, though fewer than 900 were ultimately allowed—Christie declined to pursue an appeal in state court. Since Christie’s chances to win an appeal would have been slim, and he dropped out of the race shortly thereafter, this was probably the right call. In judging ballot access cases, the courts apply a vague balancing test and tend to defer to any initial determination against a candidate. Appeals to federal court fare even worse than in state courts.
On the merits, Christie’s exclusion from the ballot in Maine was much less justified than Trump’s. There is no doubt he had the measure of voter support the law is intended to require. He is being denied under a 19th century relic of a law, a quibbling technical issue, a requirement that is obsolete, difficult to comply with, and pointless. But reactions to his exclusion were muted to nonexistent. There was no flood of outrage against this undemocratic measure, no angry denunciations of the secretary of state by other politicians. Instead, the news was met with a shrug. Rules are rules, too bad for him, and for any Maine voters who wanted to vote for him.
Staring at Squiggles
Sometimes the rules for how to get on ballots veer into Kafkaesque absurdity. In Wisconsin, the state legislature adopted a change to petition forms, adding separate spaces for voters to both print and sign their names. This seems like a sensible requirement, a common measure on all kinds of paperwork to ensure names are legible. That is, until election officials started rejecting signatures because they decided the name in the printed block was too cursive-looking. While no candidates were ultimately kept off the ballot, and the legislature subsequently clarified the law, the fiasco underscores how arbitrary and even capricious ballot access laws can be.
Wisconsin also provided another example of ballot access absurdity. In 2020, the third-party presidential candidacy of Kanye West was denied on the grounds that his petition signatures had been turned in 14 seconds too late. His lawyers argued that 5:00:14 p.m. is “not later than 5:00 p.m.” per the language of the statute, but to no avail.
Our laws are particularly unfair, and courts especially unsympathetic, to candidates running outside of the two major parties. In many states, running as a Republican or Democrat requires just a few dozen signatures or a small filing fee, while running as a third party or independent candidate requires obtaining thousands or tens of thousands of signatures. The judiciary has allowed this discriminatory treatment to stand in all but the most extreme cases where the burdens are effectively impossible.
Presidential Eligibility
Nor is it uncommon for states to refuse ballot access to ineligible presidential candidates, including one case out of Colorado affirmed by future Supreme Court Justice Neil Gorsuch.
Plenty of people have tried to run for president despite not being a natural-born citizen or being younger than 35. State policies vary on if it matters, with some not caring, particularly since these are usually fringe candidates. We are currently seeing this play out with the case of Cenk Uygur, who is attempting to run in the Democratic primary despite not being a natural-born citizen. He has qualified for the ballot in some states and been rejected in others. Some states take measures to deny ballot access in such cases, and have a history of enforcing them, while other states do not.
Trump might be the first presidential candidate potentially disqualified under the 14th Amendment, but he would be far from the first presidential candidate denied ballot access for not meeting the Constitution’s requirements for the nation’s highest office. If he is judged disqualified, it would mean he is being denied no more than what Americans younger than 35 years old or not natural-born citizens are denied.
Equal Treatment
When it comes to ballot access, Trump is not being denied any rights to life, liberty, or property. He is facing a penalty imposed with great frequency on others, often with far less rigorous legal protections and judicial review than he is now getting.
To be sure, the application of Section 3 of the 14th Amendment to disqualify a presidential candidate is unprecedented. It raises novel legal issues. It’s not unreasonable that the Supreme Court has quickly taken it up. But when it comes to the process and what’s at stake if he loses, he is not special.
American ballot access laws are deeply flawed. The democratic right to run for office is often denied arbitrarily and for insufficient reasons. But in deciding if Trump should appear on ballots, it is entirely proper that he remain subject to the same procedures and standards that would be applied to anyone else. And those rules and standards are broadly disfavorable to candidates seeking to overturn a state’s decision to deny ballot access.
This process amounts, as it always does, to election officials making a decision followed by possible appeal through civil litigation, on expedited timelines because of the inherently time-sensitive nature of elections. It does not require a criminal trial, there is no right to proof beyond a reasonable doubt, and the state’s asserted policy interests are given substantial deference. When it comes to presidential elections, there is even stronger constitutional protection for states deciding how they want to run the process of allocating their electoral votes.
Trump is not entitled to due process or legal rights above and beyond anyone else. His entitlement to appear on ballots is no more important than any citizen’s right to run for small-town local office. It would be a defeat for the rule of law, and for equality under the law, to give him special treatment. In deciding his case, the Supreme Court should keep in mind the low bar it has set for candidates who are not ex-presidents.
© The UnPopulist 2024
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I agree with your arguments, but I don't agree that ballot access is a "right"...any more than driving is a right. Both are privileges extended to those who meet defined requirements.