"NO RIGHT IS MORE PRECIOUS": COMMON GOOD SOLUTIONS TO BALLOT ACCESS JURISPRUDENCE.

• Author: Koehler, Andrew J.

INTRODUCTION

The year 2020 was a significant one in many ways, and unfortunately for many of the wrong reasons. For example, the world was met with "seven days of roiling uncertainty" about whether war would break out between the United States and Iran, (1) President Trump faced and was acquitted on two articles of impeachment that were brought against him, (2) the world experienced recordbreaking natural disasters, (3) and the murder of George Floyd mobilized millions of citizens into months of demonstration and debate about racial relations and the use of force by police officers. (4)

As significant as these and other events were in making 2020 "the most difficult year of our lives," (5) perhaps the two most influential factors to weigh on the lives of Americans were the spread of the novel coronavirus, COVID-19, (6) and the presidential election race between President Donald Trump and then-former Vice-President Joe Biden. (7) These two realities came crashing together to boost "fundraising and campaigning to the digital realm" and encourage voting by mail at an unprecedented level. (8) Crucially, the entrenched political division over deeply personal issues also brought to light a relatively-unknown but, nevertheless, important topic of election law: minor and third party candidate access to the presidential ballot. (9) For example, some states voluntarily eased ballot access requirements for third parties due to the difficulties brought on by campaigning and collecting signatures in the midst of the coronavirus pandemic, (10) such as restrictions on non-essential travel. (11)

However, in many states, the process has not been so simple. (12) In some cases, ballot access restrictions on minor and independent candidates were eased only after bringing the matter to court. (13) Still, this was not the case in all states, as courts in Pennsylvania (14) and North Carolina, (15) among others, refused to grant such relief. Indeed, the entire topic of ballot access laws is littered with Supreme Court contradiction, such that one can hardly be surprised when constitutional challenges often end in wildly different results. (16) Ballot access jurisprudence has become the very "entangl[ed] web of election laws" that the Court wanted to avoid. (17)

Ballot access laws are the basic rules and procedures which regulate the conditions under which candidates for public office may qualify for presentation to the electorate on the voting ballot. (18) Depending on the criteria met, a candidate may typically be presented to voters in one of three ways: nomination by a political party that has been recognized by the state, as an independent candidate free from affiliation with any political party, or as a write-in candidate who is eligible to receive votes. (19) The authority to promulgate these laws is constitutionally vested within the several states, (20) which, consequentially, sets before each presidential candidate more than fifty unique hurdles to clear. (21)

Although constitutional amendments prohibit states from imposing discriminatory limits to the ballot on the bases of race, (22) sex, (23) payment of poll tax, (24) and age, (25) the states are largely free otherwise to advance their own policy considerations as they relate to ballot access and voting. (26) The mechanisms by which the states control access to the ballot are varied. (27) Most states require that a candidate submit a minimum number of petitions (signatures of prospective voters pledging their support), calculated according to a percentage of registered voters, a percentage of voters from the previous election, or simply a hard and fast limit. (28) States also impose filing fees, justified on the basis of covering the various costs associated with the ballot process. (29) Naturally, these measures must be enforced by deadlines which, depending on how early they appear in the election cycle, present yet another obstacle to the ballot for candidates. (30)

In what amounts to a political positive feedback loop, because of their strong performance in the previous elections, candidates from the Republican and Democratic parties generally qualify automatically for the ballot and thereby bypass the need to meet the traditional criteria of a state. (31) Then, because the legislators who consider the ballot access laws almost always belong to a major party, they naturally only tend to pass measures which avoid putting their own parties' political aspirations at risk. (32) Thus, the bulk of the ballot access laws work almost exclusively against minor parties and independent candidates. (33)

On July 6th, 2020, the Fourth Circuit Court of Appeals decided the case brought by independent presidential candidate, Kyle Kopitke, against the State of North Carolina for its early filing requirement. (34) The decision ultimately upheld North Carolina's March 3rd independent presidential petition filing deadline as well as the 70,666 petition requirement. (35) The decision, however, seemed to directly contradict the reasoning and overall holding of the precedentially binding case, Anderson v. Celebrezze, (36) perhaps due to the selfcontradictory and generally confusing nature of Supreme Court decisions on the topic. (37)

This Note focuses primarily on ballot access issues for presidential candidates and is divided into three parts. Part I provides a background of the origins of ballot access laws in the United States and tracks the historical development of the topic through a discussion of the pertinent case law. Part II consists of a discussion of the resulting modern confusion in the wake of conflicting Supreme Court case law as well as an illustration of these concerns through further development of the Buscemi v. Bell case. (38) Part III considers proposed resolutions and offers a potential solution in light of a recent resurgence in common good-based discussions of jurisprudence in the academic sphere. A brief conclusion stresses the importance of resolving these issues in a light favorable to robust political dialogue and American notions of liberty.

1. LEGAL BACKGROUND

   1. Historical Development of State Ballot Access Control

      It is useful to place any analysis of current challenges to the integrity of our balloting processing in proper historical context. Elections immediately after the birth of the United States followed European viva voce tradition (39) and were therefore "conducted orally or by a showing of hands." (40) However, within twenty years, voter intimidation and bribery drove the majority of states to require written votes in the interest of privacy. (41) These first paper ballots were not regulated by the state, which meant that it was up to individual voters to merely write the name of their preferred candidate on a piece of paper. (42) Although these efforts were initially successful in addressing the fraud and coercion that birthed them, voter privacy was again violated when, looking for political advantage, parties began to print and distribute their own paper ballots on brightly-colored paper with unique designs. (43) This led to "an epidemic of vote buying" and harassment emerged as voters could be identified by the colored ballot of their favored candidate. (44) Additionally, because parties and candidates eventually had to cover the costs of printing and distributing their own ballots, many candidates were excluded due to their financial status. (45) By any measure, "these early elections 'were not a very pleasant spectacle for those who believed in democratic government.'" (46)

      The United States was not the only country to suffer from such severe intimidation and voter fraud throughout most of the 1800s. (47) Several countries worked to improve election integrity, but it was the Australian system which introduced many of the measures modern voters likely take for granted, such as the erection of private voting booths. (48) Perhaps the most influential change introduced by the Australian system, however, was state sponsorship of an official ballot which, among other things, required the printing of all candidates on the same ticket. (49)

      It was hoped that this added secrecy in the election process would, in fact, work to open up the election to more competition from minor candidates by putting them on more equal footing with the larger and more established parties. (50) State regulation of the ballot was thus born of a need to ensure the integrity of the voting results and a desire to sustain healthy political competition. (51) Consequentially, the question of which candidates have access was naturally begged: "[i]t is only when the State undertakes to prepare the ballot and make its use alone mandatory, that official recognition of political groups or parties becomes necessary. In some way now the names which are to appear upon the ballot must be suggested . . . ." (52)

      England and Belgium adopted the Australian system in the 1870s and early-adopting states in America followed suit in the late 1880s. (53) States assumed authority as the regulators of both local and federal elections after failing to find authority otherwise allocated in the Constitution. (54) However, in the interest of preserving its own authority, the federal government reserved the power to supersede state election laws. (55) Early ballot access laws eschewed substantive regulation, preferring instead to allow politics and popularity to set the number of candidates. (56)

      Moreover, these decisions were grounded in voters' rights--an idea which, even then, cut both ways. (57) For example, Justice Oliver Wendel Holmes stressed a reasonability standard when it came to state regulation, (58) and courts sought to limit discrimination against minor parties. (59) Legislators themselves at this time recognized their precarious footing, as stated by House Representative-turned Circuit Court Judge, George W. McCrary:

      It is within the province of the Legislature to prescribe...