Pruning the political thicket: the case for strict scrutiny of state ballot access restrictions.

• Author: Cofsky, Kevin

Introduction

In 1989, the world rejoiced as the fall of the Berlin Wall marked the end of an era of oppression for much of Eastern Europe. In the ensuing years, staggering changes have taken place in many areas of the world -- the institution of market economics, free expression of speech, and open tolerance of religion. The most significant improvement -- the prize for which the people of East Germany, Poland and the Soviet Union so valiantly strived -- has been the proliferation of the right of self-determination, the freedom to shape one's own destiny, the ability to take part in the process of government. As the United States Supreme Court recognized in the seminal case of Wesberry v. Sanders, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."(1)

In a representative democracy, the various political, economic and social rights guaranteed by the constitution or laws of the land are necessarily subject to the alteration or interpretation of a governing authority.(2) Therefore, the manner in which the governing authority ascertains and effectuates the will of the people ultimately determines the substance of the nation's legal framework and consequently, the nature of society. Accordingly, the most fundamental rights in such a system are those associated with the right to vote.(3) As James Madison stated in 1778, "[t]he genius of republican liberty [is] not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people."(4)

Ironically, as many. countries taking their first precious steps toward a freer society look to the United States as the prototypical modern democracy, American government seems to have stumbled. Decades of scandal have undermined the authority of government(5) and a general feeling of discontent with Washington insiders has become commonplace. In response, many Americans have increasingly looked to new faces, for political solutions. The independent candidacy of Ross Perot in 1992, the strong public support for General Colin Powell's candidacy in 1995, and the resiliency of Perot's Reform Party are testaments to the pervasiveness and legitimacy of the dissatisfaction with the existing political choices that many Americans experience.(6) Nevertheless, these challengers to the "existing order, have encountered substantial difficulty and expense in attempting to place their names on ballots. Thus, the courts recently have faced an increasing number of challenges to state election schemes and have addressed the validity of many ballot access restrictions.

Ballot access restrictions represent the organizational embodiment of the dyad between representation and governability. As a functional matter, a modicum of procedural regulation must exist in order to ensure the fair and efficient administration of elections. In addition, states have found it necessary to regulate the substance of elections for a number of reasons, such as preventing voter confusion, protecting the integrity of the two-party system, and maintaining the stability of the political process. Beyond these stated objectives however, majority parties have also found it politically expedient to utilize ballot access restrictions as a method of warding off unwanted competition.

In 1968, the Supreme Court began to address the constitutionality of state-imposed restrictions on access to the ballot for independent and third party candidates. In Williams v. Rhodes, the Court found unconstitutional an Ohio election code which "made it virtually impossible for a new political party ... to be placed on the state ballot."(7) Unfortunately, in the ensuing three decades the Court's jurisprudence in this area has become riddled with inconsistencies and vague standards of review, leaving Lawrence Tribe to remark on the doctrinal enigmas that bedevil the law of ballot access," and to conclude that the Court's initial forays into the realm of access requirements were oblique and not wholly consistent."(8) The Court's failure to act decisively and consistently in this area of the law has left lower courts without adequate guidance to determine future constitutional challenges and has resulted in a deterioration of states, confidence in the validity of their election schemes. In order to maintain a properly functioning electoral process, the Court must establish a clear standard of review for ballot access restrictions that is consistent with its other constitutional jurisprudence.

This Comment will argue that as long as the Court continues to analyze alleged violations of equal protection and substantive due process within the framework of tiered scrutiny, it must also consider the constitutional validity of ballot access restrictions within this framework. Further, because access restrictions necessarily implicate the freedom of political association and the right to vote -- both of which the Court has affirmatively accepted as fundamental in character -- such regulations must be examined through the lens of strict scrutiny. The Fourteenth Amendment provides that, "[n]o State shall make or enforce any law which shall ... deprive any person of fife, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."(9) These prohibitions are commonly referred to, respectively, as the Due Process and Equal Protection Clauses respectively. Alleged violations are generally reviewed under a system of "tiered" scrutiny: a) rational basis -- the Court will uphold state classifications that are not based on a "suspect" classification and do not impair a "fundamental right" so long as the classification bears a rational relationship to a legitimate government objective;(10) b) mid-level scrutiny -- the Court has required that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives";(11) c) strict scrutiny -- the Court will only uphold state regulations that impinge on "fundamental" rights or classifications that are based on "suspect" classifications if such restrictions are narrowly tailored to serve a compelling state interest."(12) As the Court created strict scrutiny to protect fundamental rights, it is logically inconsistent and intuitively unreasonable for the Court to deny this heightened scrutiny to two of our most precious freedoms."(13) The Court must therefore employ a strict scrutiny analysis that both recognizes the fundamental nature of the individual rights infringed and enables states to effectively regulate the electoral process.

Part I of this Comment will briefly illustrate the evolution of and statutory response to the electoral system in the United States in order to place the later discussion concerning modem ballot access restrictions in the appropriate context. Part II will present the basic constitutional parameters that empower the states to regulate ballot access and through which the Court must view the validity of such regulations.

Part III will trace the jurisprudential history of ballot access restrictions, conclusively demonstrating the capriciousness of the Court's decisions. As this Section will show, the Court has failed to articulate a consistent analytical standard with which to evaluate state ballot access restrictions, appearing instead to rely on distinct standards in each case.(14) The result of the Court's lack of logical consistency has been a dearth of reliable precedent to guide lower courts in their evaluation of election law, and an inability on the part of states to proactively construct election schemes with any degree of confidence in the constitutional viability of their efforts.

Part IV will examine recent circuit and district court opinions as conclusive evidence of the utter confusion in the lower courts regarding the proper method of analysis for constitutional challenges to ballot access restrictions.

Part V proposes an approach to analyzing constitutional challenges to state ballot access restrictions. This Part argues that assuming that the Court will continue to analyze alleged violations of equal protection and substantive due process within the framework of tiered scrutiny, the Court must examine all ballot access restrictions through the lens of strict scrutiny. Utilizing a genuine and nonconclusory tiered-scrutiny analysis that accords appropriate weight to both the states' objectives in regulating the ballot and the individual constitutional interests infringed will enable courts to strike state election schemes that unduly restrict the fundamental and precious freedoms of association and voting without "t[ying] the hands" of state legislatures that wish to regulate the ballot.(15)

1. History and Rationale for Ballot Access Restrictions

   As a purely functional matter, a fundamental level of regulation in the election of public officials must exist. Thus, in 1974 Justice White observed in Storer v. Brown that "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes."(16) Nevertheless, although the establishment of a procedural context for the electoral process is undeniably essential to the orderly operation of a free society, in the modem era all states have developed far more extensive sets of regulations to govern the various aspects of the voting mechanism. A full understanding of the modern jurisprudential response to ballot access restrictions requires a proper familiarity with the historical development and rationale of such restrictions. In order to place the later discussion concerning modern ballot access restrictions in the...