Ballot Access Restrictions: Void as Against Public Policy?

Author:Kevin Stokes

I. Introduction A. The Sixth District Controversy B. The Council's Imposition ola Credit Check Waiver C. The ConstitutionalIssue II. Defining Ballot Access Restrictions III. Determining Unconstitutional Ballot Access Restrictions A. Infringement upon Free Association 1. The Voting Rights Act Recognizes the Voting Association Bloc of Minority Voters in Compact Districts 2. Richmond's Ballot ... (see full summary)


    Kevin Stokes, Thank you to Sterling Stokes, Patrice Stokes, and the staff of The Journal of Gender, Race & Justice for their continued support and assistance, both to and throughout this Note's development.

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I Introduction

Scandal has plagued the Richmond City Council (Council) for the past Page 162 quarter of a century. In 1978, financially distressed councilman, Raymond Royall, staged a drowning death and later reemerged in Sl. Louis, Missouri.1 That same year councilman-elect William Golding relinquished his seat on the Council upon learning that his teenage felonies barred him from holding public office.2

Unfortunately, the passage of time did not ameliorate the controversies surrounding the Council. In fact, the 1990s saw further scandal. Particularly, the year 1996 bore horrors for three councilpersons. To begin, councilman Chuck Richardson, a convicted heroin-user, "served more than a year in jail . .. for refusing to identify suppliers."3 Councilwoman Shirley Harvey neglected to pay utilities bills for rented,. city-condemned property.4 Additionally, councilman Larry Chavis became mayor-elect days before the public announcement that his trucking company owed a quarter ofa million dollars in back taxes.5

Scandals continued. In 1999, councilman-mayor Leonidas Young faced conviction on two counts: "influence peddling as mayor in the mid-1990s and of fraud as pastor of Fourth Baptist Church.,,6 In addition, councilwoman Reva Trammell acted contrary to the city charter in 2001, instructing a city police officer not to report her quarrel with another officer who allegedly struck her.7 Thus veering away from the road to recovery and improvement, the Council traversed the road ofpolitical stagnation.

A The Sixth District Controversy

Such polítical scandals raised public distrust and caused both the media and voters to pay particular attention to vacancies on the Council. In February 2003, a grand jury indicted Sixth District councilman Sa'ad El-Amin on nineteen Page 163 counts, including tax evasion and fraud.8 EI-Arnin pled guilty to conspiracy to defraud the United States.9 His conviction, subsequent sentence to federal prison, and official resignation created a vacancy on the City Council.10 A month later, the Federal Bureau of Investigation arrested councilwoman Gwen Hedgepeth for allegedly accepting a $2000 bribe for her vote on a pending appointment to replace councilman EI-Amin's seat,11 Less than a month later, a grandjuryindictedher on charges ofaccepting abribe and lying to FBI agents.12 As a result, insurmountable public criticism and disillusionment eroded public confidence in the Council's ability to mandate candidacy requirements for appointment to the Sixth DistriCt,13

B The Council's Impositionofa Credit Check Waiver

. The circumstances surrounding the Council's appointment proeedure to the Sixth Distriet Couneil seat roused further controversy. The Council required all applicants seeking appointment to submit personal information.14 The Council required the same for the Fourth District seat, which was left vacant after a councilman's fatal heart attack,15 The revised application procedure required applicants to submit resumes and consent to background investigations,16 which Page 164 were to be executed by the Cíty of Richmond17 The background investigations provided, in relevant part, for the investigation of applicants' credit histories.18

The background investigation, particularly the required consent to a credit check, drew public attack and press attention.19 The public's main complaint was the creation of double standards and excessive authority in contravention of the city charter.20 For instance, former councilwoman Shirley Harvey voiced concern that the Council subjected applicants to criminal background and credit history investigations, but Council members had not subjected themselves to the same investigations.21 In particular, the financial background check ofapplicants seeking the vacant seats further marred the appointment of the notorious Sixth District seat.22 The consumer report, which examines candidates' credit histories, was the most alarming aspect of the required background check. The application's standard-form consent23 to arbitrary, post-appointment credit checks (i.e., ballot access restriction) exacerbated the consumer report's effect. As a result, candidates seeking Council positions for the Fourth and Sixth Districts gave advance consent to continuing governmental investigation of their credit histories, which could take place at any point throughout their tenures in office.24 Below are the relevant standard forms herein discussed. The forms Page 165 discussed in this Note are reproduced below.25


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C The ConstitutionalIssue

The foregoing facts present the constitutional issue of whether requiring consent to a credit investigation violates both substantive election law and policy. Concededly, this Note recognizes that the Council has not mandated that general and special election candidates waive credit history confidentiality. Strictly for purposes of this Note, however, such a required waiver is assumed likely considering the Council's recent requirement that seekers ofappointed (as opposed to elected) Council positions consent to credit investigations. That is, this Note logically presumes that the Council may soon mandate that candidates seeking election, including election in majority-minority districts, consent to credit checks. From this presumption, this Note addresses whether the Council's standard-form waiver to a credit check, if required of candidates seeking election in majority-minority districts, would violate well-established election law. If not violative, this Note asks whether this and similar ballot access restrictions should undergo. scrutiny under a new, remedial test.

.Richmond's potentially forthcoming ballot access restriction would likely be constitutional under the current, well-recognized test defining impermissibility. While imposition of a waiver to a eredit eheck would impinge upon eandidates' and voters' First and Fourteenth Amendment rights to free association, the infringement would be a reasonable means to further an otherwise legitimate state interest. The unintended effeet of requiring waived credit ehecks, however, would be the marginalization of the poor and blaek populations in breach ofpublie poliey.26 This Note does not exhaust all the legal and policy implications associated with credit cheek investigations of candidates to local Council election.27 Instead, this Note asserts that Richmond's potentially fortheoming restriction, providing for the investigation of candidate-applicants' credit histories, would shock the public conscience and breach remedial public poliey. For this reason, eourts should evaluate seemingly eonstitutional ballot access restrictions according to this Note's proposed multi-factored balancing test,28 which weighs governmental interests against the infringement to voters' and candidates' free association, reasonableness norms, and poliey considerations.

Using Richmond's potentially forthcoming ballot aceess restriction as an Page 168 example, this Note examines the workability ofthe Supreme Court's enunciated test. Section 11 defines ballot access restriction.

Section 111 addresses the constitutional analysis applied to Richmond's potential restriction. In subsections, this Note analyzes Richmond's potentially forthcoming restriction according to Supreme Court precedent. In Section IV, the Note evaluates the likely constitutionality of Richmond's potential ballot access restriction. Further, Section V explores the policy implications of the restriction. Section VI proposes an amended test incorporating public policy concems. The Note concludes by arguing that the restriction is unlawful under the proposed test and that judicial adoption of a policy-influenced balancing test will yield preferable results.

II Defining Ballot Access Restrictions

Ballot access restrictions are by-products of competing, yet fundamental electoral interests. On the one hand, the public interest iti strong candidacies is well established.29 On the other hand, the govemmental interests in preventing voter confusion, public distrust, frivolous candidacies, and conflicts of interests are equally well established.30 The resulting balance is, thus, a legislature's imposition of reasonable (and sometimes unreasonable) qualifications upon office seekers.31 These qualifications, not prescribed by the federal and state constitutions, are termed "ballot access restrictions."32 Therefore, an eligibility prerequisite constitutes a ballot access restriction...

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