Validation procedures and the burden of ballot access regulations.

• Author: Yablon, Robert

One of the most intriguing subplots of the 2004 presidential campaign involved the efforts of some John Kerry supporters to keep Ralph Nader off the ballot. In more than twenty states, Democratic activists vigorously contested the validity of Nader's nomination petitions. (1) The Nader campaign countered on two fronts. First, it defended itself against the onslaught of challenges in state administrative and judicial proceedings. Second, it filed federal lawsuits claiming that certain state ballot access laws violated the constitutional rights of Nader and his supporters. (2)

Like most plaintiffs in federal ballot access cases, Nader focused on the core statutory requirements that states impose on minor-party and independent candidates. Such requirements are constitutionally suspect if they "unfairly or unnecessarily burden[] the 'availability of political opportunity.'" (3) The Supreme Court, for example, has invalidated state laws that require candidates to collect an inordinately large number of signatures or to submit their nomination petitions early in the election season. (4)

Nader's experience in 2004, however, reveals that signature requirements, filing deadlines, and similar statutory hurdles are not the only burdens that state ballot access regimes impose. In many states, Nader purported to satisfy the initial conditions for ballot access only to confront a second obstacle in the form of challenges to the veracity of his nomination materials. His chances of securing a spot on the ballot hinged on the procedures states used to authenticate his filings. All else being equal, the easier it is to challenge and invalidate a candidate's nomination materials, the more difficult it is for that candidate to qualify for the ballot.

Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifies a candidate's nomination materials. As Part I explains, Nader v. Keith, (5) a Seventh Circuit decision authored by Judge Posner, takes some tentative steps in the right direction. Part II builds on Judge Posner's analysis to suggest that ballot access doctrine obliges courts to be sensitive to the difficulties validation mechanisms can create. Part III then explains why giving partisan actors a central role in challenging an opponent's nomination filings may present special constitutional problems because private challenges can be a potent way to limit the political participation of disfavored candidates.

1. NADER V. KEITH: INTRODUCING VALIDATION PROCEDURES INTO BALLOT ACCESS ANALYSIS

   In 2004, the Nader campaign brought federal lawsuits challenging the constitutionality of numerous state ballot access laws. (6) Nader v. Keith, which involved Illinois's ballot access regime, presented the Seventh Circuit Court of Appeals with a set of factual and legal claims typical of these suits. Under Illinois law, Nader was required to submit, at least 234 days prior to the election, nominating petitions bearing the signatures of 25,000 qualified voters as well as the addresses at which those voters were registered. (7) The campaign purported to satisfy this requirement, turning in 32,437 signatures on the date of the deadline.

   Illinois officials perform no independent assessment of a candidate's nomination materials; instead, their role is to evaluate objections raised by outsiders. (8) In Nader's case, John Tully, a man Nader described as "a 'minion' of the Illinois Democratic Party" promptly contested the veracity of more than 19,000 of Nader's signatures, mostly on the ground that the signer was not registered to vote at the address listed. (9) A state administrative panel heard Tully's claims and ultimately invalidated 12,327 signatures. (10) That dropped Nader below the 25,000-signature threshold needed to qualify for the ballot.

   As the state administrative proceedings unfolded, Nader sought relief in federal court. He claimed that three provisions of the Illinois Election Code--the 25,000-signature requirement, the address requirement, and the submission deadline--combined to "impose an unreasonable burden on third-party and independent (nonparty) candidacy" in violation of the First and Fourteenth Amendments. (11) Nader's argument tracked the Supreme Court's insight that ballot access laws should not be viewed in isolation. Instead, sometimes "a number of facially valid provisions of election laws may operate in tandem to produce impermissible barriers to constitutional rights." (12)

   In Keith, Judge Posner recognized that the impact of a ballot access law on prospective candidates depends not only on surrounding laws but also on the validation procedures the state uses to ensure compliance: "The fewer the petitions required to put a candidate on the ballot and the harder it is to challenge a petition ... the shorter the deadline for submitting petitions can be made without unduly burdening aspiring candidates." (13) According to Judge Posner, the fact that Illinois "makes challenges easy rather than hard" rendered the state's core ballot access requirements more difficult to satisfy and thus more constitutionally suspect. (14)

   Judge Posner also attempted to quantify the true burden of Illinois's ballot access scheme. He explained that the total number of signatures a candidate must collect in order to be confident of securing a spot on the ballot generally exceeds the statutory minimum. (15) If a state requires 25,000 signatures but does not permit challenges to their veracity, then a candidate who submits 25,000 signatures should receive a spot on the ballot. But if a state does allow challenges...