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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.

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It's not so much that there's a "right to ballot access" as that there's no legitimate government power to stop you from voting for whoever you damn well please.

Voting is speech. It's saying "I want THAT person to be president."

If someone is ineligible to the office, a court might so find ... but that doesn't mean the government gets to stop you from voting from him or her.

Until the 1890s, all votes were "write-in" votes. You hand-wrote your ballot, or cast one printed by your preferred party, or verbally dictated your votes to an election official in the presence of a witness.

The "ballot access" laws that started evolving with adoption of the government-printed "Australian" ballot are, quite simply, censorship laws.

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Voting is a free speech right, and looking to the pre-Australian ballot party ticket era can tell us a lot about how to think of ballot access and similar laws today. But it is also participating in a process that has some rules. And at some level, the most obvious and least objectionable thing about the decisions inherent in having official government-printed uniform ballots is that the state doesn't have to put a 17-year old Canadian on the ballot for president, or somebody who otherwise isn't eligible for whatever position they're running for, like somebody who doesn't live in the right state legislative district, etc. The countervailing interest to absolute voter freedom is for the government to also not *mislead* the voters on the ballot by presenting candidates ineligible to take office as equally valid and efficacious as voting for eligible candidates.

And right or wrong, the proposition that states in general can (but don't have to) keep unqualified candidates off the ballot is firmly settled and not in serious question. It's never going to go to the total equivalent of the effectively all-write-in party ticket era. You could write-in Mickey Mouse, too, both then and now, but that doesn't mean the state has to put Mickey Mouse on the ballot even if you go out and get the requisite signatures.

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Just to clarify:

Under the existing "ballot access" system, I

1) Agree that states are empowered to refuse to put unqualified candidates on the ballot (they also CAN put unqualified candidates on the ballot; for example, the Socialist Workers Party put Nicaraguan-born Roger Calero on several ballots in 2004 and 2008, while other states refused him ballot access); and

2) Agree that there's a plausible case that Trump is ineligible under Section 3 of the 14th Amendment; and

3) Agree that Trump has received at least as much (actually more) due process vis a vis his eligibility than most candidates. It's a civil matter. There were court hearings in Colorado at which he was free to plead his case, and in Maine the Secretary of State issued a contestable determination instead of just refusing the filing fee or whatever, as is common if a 17-year-old walks into an election authority office and announces she wants to run for US Senate.

I just take every opportunity to argue in favor of discarding the "Australian" ballot, making all elections de facto "write-in" elections, and contesting eligibility of a candidate in court if that candidate actually wins an election. And your excellent piece constituted such an opportunity. Thanks for engaging!

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Good points here about "ballot access" from the voter's side of things, but the term as it's being used here refers to a person's access to being on a ballot as a candidate.

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He definitely gets that and to his credit has a ton of experience on working with petitions and ballot access laws, probably more than I do. We've known each other for, I dunno it's gotta be close to a decade now, from the world of the LP. So what he's talking about is kind of the radical against any ballot access restrictions view, which is a coherent principled position you also see from folks like Richard Winger (Ballot Access News). I'm just not quite there on saying effectively no rules, there is some irreducible level that the government has to have some orderly process for who gets put on the ballot, but I'm probably 90% there in that it should be a lot easier and our laws about it are really bad.

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Ah, gotcha. Thought he had taken “ballot access” to roughly mean “a voter’s access to ballots.” Position as you’ve elaborated it seems similar to a point we were wondering about during editing: the idea being that, in essence, disqualifying Trump isn’t an infringement on *his* right to be on the ballot but on a sizable chunk of America not getting to vote for who they wanted.

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Ballot access is definitely a mixed case of both the rights of voters and the rights of candidates, often procedurally the candidates standing to represent the rights of their voters. There's a bit more 1A emphasis on the voters rights side, and a bit more emphasis on the due process and equal protection side for candidates. But because they're kind of just two sides of the same coin, the courts don't usually get much into parsing the distinction. Still it definitely matters for the normative argument on the merits, and that the voters probably have a stronger interest we should consider than the candidates. To some degree it cuts both ways, you can also make a claim for voters for other candidates and those other candidates themselves not being treated unfairly by having the state elevate an ineligible opponent.

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