The U.S. District Court decision in New York State Republican Committee v New York State Board of Elections is here. It is a 4-page transcript of the judge’s oral decision, delivered from the bench on October 31. For more about the issue in this case, see this November 1 post. The basic issue is whether a Congressional candidate is ineligible because of his or her residency before the election. The Court found that because Article One of the U.S. Constitution says a member of Congress must reside in that state “when elected”, the residency requirement in the Constitution does not concern itself with where the candidate lives prior to the election.
This marks the 4th case in which the principles set forth in U.S. Term Limits v Thornton have been used to expand eligibility for candidates to run for Congress. U.S. Term Limits v Thornton said that states cannot add to the qualifications to be a member of Congress. That decision then caused the 9th and 10th circuits to strike down California and Colorado laws that said a candidate for Congress must be a registered voter. Then, in 2006, the 5th circuit said that a candidate is eligible no matter where he or she lives. Now, we have this fourth decision, from New York, agreeing with the 5th circuit Texas decision.
Perhaps eventually, courts will realize that the principle set forth in U.S. Term Limits v Thornton also means that states cannot bar “sore losers” from the general election ballot for Congress.
Can the Thornton decision be taken to a theoretical extreme where all ballot access barriers are removed? I don’t see any signature requirements in the constitutional qualifications.
Mercy.
Qualifications to hold an office are NOT the same as the requirements to get names on PUBLIC ballots for PUBLIC nominations and PUBLIC elections — aka ballot access.
The EQUAL Protection Clause is still part of the Constitution regardless of the unlimited ability of the party hack Supremes to mystify it (and the rest of the Constitution).
Ortiz (#1): I can’t dispute your logic.
Recall that at the time the Constitution and prior to that, self-nomination was the common practice for establishing candidacy. Caucuses and parties and conventions and primaries all came long afterward. It was not until the advent of the state printed secret ballot that the excuse was found to impose ballot access restrictions and petitions to entrench a bi-partisan cartel of candidates.
I think election administrators have a constitutional right to require candidates for Congress to make a modest showing of support. Every country in the world requires candidates for the national legislature to make some showing of support. It’s just that in most other countries with free elections, the requirements are modest and equal.
Sore loser laws are not needed for orderly election administration. That’s how I differentiate between sore loser laws, and laws that require candidates to make some showing of support.
Article II of the Constitution makes some mention, in the event that the Electoral College does not settle the Presidency, that the House would decide among five candidates.
This would seem to suggest that the founders had some notion that five different candidate choices would be the norm, at least for federal elections.
Why not just give the top five or six parties automatic ballot access?
ETJB (#5): At the time of the Constitution’s adoption self-nomination was the common accepted practice. Of course candidates generally sought support informally before they announced their candidacy, but there is no evidence I have seen that the Convention Delegates ever gave consideration to making “support” a legal requirement for any national candidate.
A provision that the CONGRESS choose from among the top five AFTER the election in no way justifies limiting the ballot BEFORE the election to five candidates.
The caucus system evolved to make this gathering of support a more formal private procedure, but again not a legal requirement or barrier to ballot access.
Then the parties arose to create national constituencies for Presidential candidates and their Congressional supporters.
Finally it was the adoption of the state monopoly of pre-printed ballot for secret voting that led to the rationalization for the ballot access restrictions we have today. However, as this case illustrates secret (anonymous) voting with pre-printed state ballots does not entail outlawing self-nomination.
My esteemed friend, Richard, does not agree with the concept of self-nomination without legal requirements for some reasonable and equal “modicum” of support.
How do we discover the appropriate standard for a “modicum”? And how do we reconcile it with the historic legitimacy of unfettered self-nomination? And how do we distinguish between those who belongs to the caste of those who may only vote and the caste of those who may vote and also seek office, separate and unequal?
I cannot find a way to “riddle me this or riddle me that” out of those questions.
#5: “… in the event that the Electoral College does not settle the Presidency, that the House would decide among five candidates.”
The 12th Amendment reduced that number to no more than three candidates.
I agree that ballot access requirements should be the same for major and minor parties, except that minor parties should also have the option of nominating by convention.
In Louisiana, ALL candidates have two options for qualifying– by petition or by paying a fee to the government. So a candidate who chooses not to present a “showing of support” may present a “showing of cash” instead.
Sorry — OFFICIAL ballots came along in the late 1880s — about 120 years ago.
Any folks wanting to go back to the EVIL bad old days of private specially colored ballots with other folks watching you as you voted – the party hacks, employer goons, etc. ???
Equal nominating petitions NOW — the lesser MORON candidates will not even circulate petitions.
@#1, no. Those are qualifications to get on the ballot. Thronton deals with qualifications to serve once elected.
You could make an argument that ballot qualifications are the first of the service qualifications, but as we’ve seen with the eligibility questions in the Presidential election, that would be considered a stretch and ignored.
(FWIW, I agree with your position; I just don’t think the courts would, which sucks.)
Thornton deals with ballot access. The people who wrote the term limits laws always specified that anyone could be a write-in candidate, regardless of how many terms had been served. But the term limits laws for Congressional candidates kept people with more than 3 terms from being on ballots. So US Term Limits is a ballot access case, not a case on who may sit in Congress.
Term-limits was always a bad solution to the problem of competitive elections, but the advocates of term-limits did NOT want to open up the ballot. Instead, they wanted to re-enforce the partisan two-party status quo cartel.
The parties cannot bar candidates with term-limits for primary nominations either. The solution is stop trying to ration ballot access at any level of government. If two parties dominate in a free, open, fair electoral system, then so be it. The right of the people to unfettered recourse with alternative candidates against those two dominant parties serves as a check upon their hegemony and irresponsibility.
Richard is right that Thornton undermines the logic of Storer. But logic was never the Supreme Court’s strong suit when it comes to election law. Munro and Timmons both show an underlying bias against truly free and fair elections. Clingman shows an inherent bias against minor parties. The more recent Grange decision shows a cavalier attitude toward the integrity of party labels.
#5, when the Constitution was written, each presidential elector had two, undifferentiated votes. So having 5 candidates with a substantial number of electoral votes was not particularly exceptional. It was even possible for 3 candidates to receive a an electoral vote from a majority of the electors.
When the 12th Amendment was being debated, there was quite a bit of discussion about what numbers would be used. Some wanted to leave the number at five, but others noted that both the president and vice president would have been chosen from the top 5, since after the President was selected, the Vice President would be the remaining person who had received the most electoral votes (including ties).
3 was chosen because in case no candidate had a majority of electoral votes, there had to be a 3rd candidate who had caused that result, barring a tie vote, or non-voting electors.
2 was chosen for the Vice President because 5 minus 3 equals 2; and that it would likely force a Vice President to be elected, even if there were an impasse in the Presidential election.
Uh, No, Richard. To quote the HOLDINGS:
“(a) The power granted to each House of Congress to judge the “Qualifications of its own Members,” Art. I, § 5, cl. 1, does not include the power to alter or add to the qualifications set forth in the Constitution’s text. Powell v. McCormack, 395 U. S. 486, 540. After examining Powell’s analysis of the Qualifications Clauses’ history and text, id., at 518-548, and its articulation of the “basic principles of our democratic system,” id., at 548, this Court reaffirms that the constitutional qualifications for congressional service are “fixed,” at least in the sense that they may not be supplemented by Congress. Pp. 787-798.
“(b) So too, the Constitution prohibits States from imposing congressional qualifications additional to those specifically enumerated in its text. Petitioners’ argument that States possess control over qualifications as part of the original powers reserved to them by the Tenth Amendment is rejected for two reasons. First, the power to add qualifications is not within the States’ pre-Tenth Amendment “original powers,” but is a new right arising from the Constitution itself, and thus is not reserved. Second, even if the States possessed some original power in this area, it must be concluded that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby “divested” States of any power to add qualifications.”
That has to do with qualifications to serve, per Article I, section 2, Clause 2, and Article 1, Section 3, Clause 3. It has NOTHING to do with ballot access. Stevens frames his in dicta as being a ballot access issue, because Amendment 73 was written in terms of it, BUT the ruling’s legal holdings are about qualifications to serve only, not to get elected. The ruling rightly reserved qualifications to the Constitution only, and not to ballot access. That’s an important difference that gets lost in translation a lot of the time. The Arkansas Supreme Court itself rejected the ballot access argument put forth by the state of Arkansas, and the Supreme Court affirmed that ruling. Both of those courts held that it was a service qualification, not a ballot qualification, even though Amendment 73 was designed to be a ballot access constraint based on term limits. The ruling rightly prevents using ballot access as a qualification constraint, but it also rightly tosses all state-imposed qualification constraints on federal offices.
Never forget that ballot access for a candidate, while related to qualification to serve, are distinctly different from those qualifications. That’s why district residency is not a valid qualification to run for Congress (and why Tom McClintock is running for CA-04 when he lives in the OC, several hundred miles away!). An ineligible candidate can run and get elected but not serve. See also Mel Carnahan, who was clearly ineligible and got elected but did not serve. (His ineligibility was that he was DEAD!)
Thornton v US Term Limits is a qualification case. To call it a ballot access case is to engage in the same subterfuge that the State of Arkansas attempted, and which Justice Stevens did not bother to address until Part IV of his decision.
The Arkansas law allowed anyone to run for Congress, but said 3-term incumbents couldn’t get on the ballot; they could only be write-in candidates. The US Supreme Court said the Arkansas law was unconstitutional. So it was a ballot access case. A law keeping certain people off the ballot was struck down.
Elections are for the purpose of choosing officers. There is no reason to permit elections be subverted for the benefit (perceived or real) of political hacks or parties.
Munro involved a candidate who received 596 of 681,000-odd votes (0.09%), finishing in 14th place in an election in which all voters could participate and vote for any candidate. He had 1/244 of the support of the 3rd-place candidate. It was not even a general election, so a claim based on appearing on the ballot on the date set by Congress for senatorial elections might have merit. The only basis for the case was that Dean Peoples was the SWP “nominee”. He could possibly claim that voters thought they were actually voting in a Democratic/Republican primary and stayed home in the October election, even though it was the only statewide race on the ballot in 1983. Under a true Top 2 system that Washington has evolved to, it would not have mattered at all.
Timmons was a case where a candidate already qualified to appear on the ballot, wanted to have the name of another party printed on the ballot. The exclusion of an extraneous party name had no effect on the ability of voters to cast a vote for Andy Dawkins.
Clingman was a case where one party wished to let registered supporters of other parties participate in their primary. The reason for this is because voters had to keep changing their register merely to be permitted to vote. If the Libertarian Party was not qualified, then they could not vote in any primary. So they would register with another party. Oklahoma was requiring people to register with a party in order to be able to effectively participate in elections. The Libertarian Party was arguably encouraging is supporters to register in other parties, and then let them choose which primary to participate in. A true Top 2 system would eliminate this nonsense, permitting all voters to vote for whichever person they wanted.
Washington Grange simply permits all voters to participate in all elections without having to make an expression of political fealty, even if made in secrecy.
Electoral systems based on State-operated or mandated partisan primaries and other selection procedures introduce unconstitutional barriers to candidates (or more properly, voters who might support them), as well as voters.
Primaries require candidates to file months before the election date set by Congress for the choosing of US representatives and senators. Such early qualification sets a de facto residency requirement. Philip Key moved to Maryland two weeks before he was elected. This is now used as a precedent for keeping people on the ballot, or more importantly keeping other persons off the ballot.
Early primaries transfer the choice of representatives from the voters specified in the Constitution and federal law to a different set of individuals. If a primary is in March, then the nominees are chosen by persons who may move from the district, die, or be convicted of felonies; and excludes those who move to the district, turn 18, become naturalized citizens, register to vote, or have their franchise restored after a felony conviction in the next 8 months.
It permits pipelaying, where voters can move from State to State and vote in elections for more than one representative, even though this was the specific reason that a uniform election date was set for president in 1845, and for US representatives in 1872.
Party primaries exclude voters or require voters to game the political system simply in order to vote. The Pacific Green Party in Oregon lost about 1/4 of its registrants to voters who wanted to vote in the Democratic presidential primary. This places the party at risk of losing its ballot access.
At one time, I lived in a congressional district that was 70% Republican, and a state senate district that was 70% Democratic. The party primary of the dominant party decided who was elected. If I wanted to vote for who my congressman or state senator was, I would have to choose which office I wanted to vote for.
Independent candidates may be forced to file at the same time as partisan candidates, and they may face a higher barrier to get on the ballot. For example, in Texas ballot access for a qualified party is based on their having received 1% of the vote in any statewide race, including a judicial race in which there was only a single major party candidate, while an independent candidate is required to secure signatures equivalent to 1% of the total vote in the last gubernatorial election. In the 2006 gubernatorial race, there were two independent candidates, in addition to a Democratic, Republican, and Libertarian candidate. The Libertarian candidate received less than 0.60% of the vote. Yet Libertarian candidates will continue to enjoy ballot access based on showings in other races where they received up to 24% of the vote in Republican-Libertarian races. An independent candidate will once again require to gather more signatures than the Libertarian candidate actually received when the State put his name on every ballot given to 4.5 million voters.
#17: A true Top 2 system would eliminate this nonsense, permitting all voters to vote for whichever person they wanted.
That’s certainly true of the preliminary round of the “top two.” But if a voter’s favorite candidate– or a candidate from his party– doesn’t reach the final, deciding election, that voter is essentially disenfranchised.
BTW: What’s the difference between a “true top two” and a FALSE “top two”?
It seems pretty clear that U.S. Term Limits v Thornton was primarily a ballot access case. But the Supreme Court wanted to evade the ballot access implications as best they could.
The relevance for ballot access in this New York decision is that it raises once again the question whether state actions can disqualify a candidate from the ballot without violating the U.S. Constitution’s provision that the Congress (the respective bodies – House and Senate) are the SOLE arbiters of a person’s qualifications to serve. This provision implicates all barriers to the ballot as unconstitutional which would include petitions and filing fees.
The U.S. Supreme Court in U.S. Term Limits v Thornton made a distinction between disqualifying a candidate in Arkansas for the US. House because of the length of their tenure in the House (3 terms) as an unconstitutional preemption of Congress’ power as the sole judge under the Qualifications clause on the one hand and ballot access restrictions as constitutional under the Elections clause even though such ballot restrictions do preemptively disqualify candidates on the other hand. AKA double standard.
In short, the US Supreme Court wants it both ways. Candidates for Congress can be disqualified by the states before the Congress can pass on the issue of qualifications so long as the disqualifying provisions operate under the guise of “orderly procedures” for elections and to remove “frivolous” candidates (non-incumbents), or as paternalistic licensing to avoid “voter confusion”; but incumbents, even if frivolous or confusing, have the right to have the Congress to pass on their “qualifications”. But ordinary citizen candidates do not have the right to be judged by the Congress – they can be pre-disqualified without running afoul of the “qualifications” clause.
The qualification standards which Congress must use are fixed in the Constitution and cannot be alter by the Congress according to the Powell case.
The Courts proclaim that the people have the fundamental right to choose by whom they shall be governed – except when they don’t. Instead citizens are disqualified in advance of the election because don’t get enough signatures to satisfy the incumbent machines whim. The voters are supposed to be the judge of qualifications when they vote.
If you can find “equal protection of the law” in the Supreme Court’s reasoning, let’s hear about it.
D. Frank Robinson:
“It seems pretty clear that U.S. Term Limits v Thornton was primarily a ballot access case. But the Supreme Court wanted to evade the ballot access implications as best they could.”
It is absolutely clear that the State of Arkansas was attempting to impose a term-limits qualification on US representatives. The evasion Arkansas used was to permit three-term incumbents to file as write-in candidates, and then claim that because incumbents were so well known, this was not unequal ballot access, and therefore not a “qualification”.
Re: #20
That’s certainly true of the preliminary round of the “top two.†But if a voter’s favorite candidate– or a candidate from his party– doesn’t reach the final, deciding election, that voter is essentially disenfranchised.
The right to choose A winner is exercised collectively by the electorate. Individual voters are not disenfranchised in any way simply because their first preference is not among the top 2 choices of the electorate.
BTW: What’s the difference between a “true top two†and a FALSE “top two�
quasi- or pseudo-
When Washington State had its blanket primary, many voters likely behaved exactly like they do now under Top 2, simply choosing which candidate they thought was best, regardless of party.
The exception would be when there was only candidate from one of the major parties – in which case there was an opportunity to vote for either a 2nd choice from the other party, or a candidate who was perceived to be a weaker competitor.
If a votes likes the single candidate of one party, but likes one of the candidates of the opposite party almost as well,
A1 > B1 >> B2
they might vote for B1, simply because there was no advantage voting for A1.
But if a voter preferred the single candidate of one party much more than any of the candidates of the other party,
A1 >> B1 ? B2
they might vote for the candidate that he perceives as providing less competition for their favored candidates.
In the case of minor parties, there was never more than one candidate in the blsnket primary, so supporters had to choose between voting in the major party contests that were getting all the press coverage, or making sure that the minor party candidate got 1% of the vote.
Jon Powers received more votes in the general election as the Working Families candidate (10,854) than Alice Kryzan had in winning the Democrat primary (9,792).