Consistently Unconstitutional: Examining Ohio's Ballot Access Laws

AuthorNicholas Walstra
Minor political parties often have a difficult time competing against
the Republi cans and De mocrats for votes, but many times the battle begins
even earlier because minor parties must fight to get their names on the
ballot. The dominating parties in charge of the state government often
establish strict requ irements th at minor parties must meet to gain access to
the ball ot. Man y times, these requirements border unconstitutional ity, and
Ohio is no exception. On several occasions , Ohio’s election laws
regarding minor party ballot access were found unconst itutional, i ncluding
in the 2004 and 2008 p residential electi ons.1 In t he 2008 elect ion, not onl y
did the Southern District of Ohio find Ohio’s election laws
unconstitution ally burdensome to minor parties , but als o it found them to
be unconstitut ionally created by the Secretary of State .2
The immediat e effect of the ruling was a large number of min or
candidates on the Ohio presidential ballot.3 It also left Ohio without
constitutional ballot access l aws.4 The ruling opened up numerous
questions, both constitutionall y and po litically. For example, if the
Constitution ’s Elections Clause on ly allows a state’s legislature to create
presidential election laws , as the court in Libertarian Party of Ohio v.
Copyright © 2009, Nichol as Walstra
* I wou ld like to thank Professor Mark Brown for his assistance in developing and
researching this article.
1 See Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 582–83 (6th Cir. 2006);
Libertarian Party of Ohio v. Brun ner, 567 F. S upp. 2d 1006, 1008, 1013 n.3 (S.D. Ohio
2 Libertarian Party of Ohio v . Brunner, 567 F. Supp. 2d at 1009.
3 There were four mino r party candidates on the ballot fo r the 2008 Presidential election
(2008), /SOS/Text.aspx?page=10417&AspxAuto DetectCookie
Support=1, which was high er than in the p revious election s because Ohio averaged one
minor party per ballot in each election since 1992 . Libertarian Party of Ohio v. Blackw ell,
462 F.3d at 589.
4 Libertarian Party of Ohio v . Brunner, 567 F. Supp. 2d at 1015.
Brunner5 found, then what kind of effect s will th is have in other states?
And will this help minor parties? Politically , ho w will Ohio ’s l egislature
respond, and wil l their response ben efit minor polit ical parties?
This comment will answer these question s, as well as examine how the
judiciary has treated b allot access cases in the p ast. The first section
examines the i mportant role of minor pol itical parties and how candidates
get their names on the b allot. Next, the comment looks at s ome of t he
major Supreme Court cases th at have dealt wit h ballot access issues and
the tests that co urts use to determin e if b allot acces s regulatio ns are
constitutional. In the third section, the comment di scusses the recent cases
in Ohio where the state’s election laws were found invalid. This sect ion
also analyzes the Constitutio n’s Election Clau se. In the analys is, the
comment exa mines the effects that the ru ling could have in Ohio and ot her
Although the part ies have changed throughout America’s history,
presidential elections h ave been pri marily two party affairs. 6 This is not to
say, ho wever, that minor parties and independents have not h ad an impact
on elections.
On several occasions, the minor party candidates th reatened to win the
presidency. Theodore Roosevelt ran for President with the Progressive
Party and was at one point polling ahead of the Rep ublicans, but ultimately
lost t o Wood row Wil son.7 Ross Perot, running as a Refor m Party
candidate in 1992,8 was also leading early in the election poll s before
bowing out and t hen re-entering the race, eventuall y losing to Bill Cli nton.9
Other times, the minor party candidate can simply play the role of
spoiler. In 2000, the election ca me do wn to which m ajor party cand idate
won th e State of Florida.10 When the Democratic candidate lost by just a
5 567 F. Supp. 2d 1006 (S.D. Oh io 2008).
6 Bradley A. Smith, Judicia l Protection of Ballot-Access Rights: Third Parties Need Not
Apply, 28 HARV. J. ON LEGIS. 167, 168 (199 1).
7 Id. at 170.
8 Libertarian Party of Ohio v . Blackwell, 462 F.3d 579, 589 n.9 (6th Cir. 2006 ).
9 Victor William s & Alison M. Ma cDonald, Rethin king Article II, Section 1 and Its
Twelfth Amendment Restat ement: Challenging Our Nation’s Malapportion ed,
Undemocratic Presidential Election Systems, 77 MARQ. L. REV. 201, 222–25 (19 94).
10 See Steve Bousquet, Challenge to Nader Left Dems Weakened, ST. PETERSBURG
TIMES, Sept. 18, 2004, at 5B.

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