Consistently Unconstitutional: Examining Ohio's Ballot Access Laws

• Author: Nicholas Walstra
• Pages: 109-135

CONSISTENTLY UNCONSTITUTIONAL: EXAMINING

OHIO’S BALLOT ACCESS LAWS

NICHOLAS WALSTRA*

I. INTRODUCTION

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

2008).

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

in Ohio, OHIO SECRETARY OF STATE, PRESIDENT/VICE-PRESIDEN T: NOVEMBER 4, 2008,

(2008), http://www.sos.state.oh.us /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.

110 CAPITAL UNIV ERSITY LAW R EVIEW [38:109

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

states.

II. HOW CANDIDATES GAIN BALLOT AC CESS

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.