On February 2, the Virginia House Privileges and Elections Committee passed HB 3157 by 16-6. The bill requires minor party and independent candidates (for all office except president) to pay filing fees of 2% of the annual salary of the office. This would be $3,300 for Congress.

The sponsor says the bill is needed because Virginia’s November ballots will be too crowded in the future, because last year the legislature let cities choose to hold their municipal elections in November. The sponsor is misreading the unanimous U.S. Supreme Court decision Lubin v Panish, 415 US 709 (1974). That decision said that filing fees are unconstitutional unless they are needed to keep the number of candidates running for any particular office from being too large. Page 715-716 of the Court’s decision makes this clear. It says, “That laundry list ballots discourage voter participation and confuse and frustrate those who do participate is too obvious to call for extended discussion.” But then it says, “Rational results are not likely to be reached if the ballot for a single office must list a dozen or more aspirants.”

In other words, the evil the Court was worried about was too many candidates for a particular office, not a ballot that is too long because it has too many offices listed on it.

Virginia’s November 2006 ballot only had 2.6 candidates on the ballot in the average U.S. House race (a total of 29 candidates ran for US House, and Virginia has eleven seats, so 29 divided by eleven equals 2.6). No US House race had more than 4 candidates. Virginia state legislative elections are even more uncrowded; the average number of candidates on the general election ballot for that office is always under 2 candidates per race. Virginia keeps its general election ballots uncrowded by having fairly stiff petition requirements, combined with a very restrictive definition of “political party” (one that polled 10% of the vote at either of the last two elections). There is no need for filing fees in the general election. It is therefore possible that a court would find this bill unconstitutional if it passes.