Justice Sandra Day O’Connor Dies; Had Been One of the Last Justices to Help Ballot Access

Posted on by December 1, 2023

On December 1, former U.S. Supreme Court Justice Sandra Day O’Connor died. She had been one of the last justices to write anything favorable about minor parties. In 2005, in Clingman v Beaver, she wrote, “Although the State has a role to play in regulating elections, it is not a wholly independent or neutral arbiter. Rather, the State is itself controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit…As such restrictions become more severe, and particularly where they have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition. In such cases, applying heightened scrutiny helps to ensure that such limitations are truly justified and that the State’s asserted interests are not merely a pretext for exclusionary or anticompetitive restrictions.”

Clingman v Beaver was not a ballot access case. It was a Libertarian Party case on the ability of parties to control their own nomination process. But O’Connor as well as Justice John Paul Stevens were moved to write about ballot access restrictions. Justice Stephen Breyer co-signed the O’Connor language quoted above.

No full decision of the U.S. Supreme Court since then has talked about minor party or independent candidate ballot access.

Comments

Justice Sandra Day O’Connor Dies; Had Been One of the Last Justices to Help Ballot Access — 12 Comments

  1. SANTOS EXPELLED
    YET ANOTHER CHANCE FOR A COURT CASE ABOUT EQUAL BALLOT ACCESS [FOR 3RDS/INDEES] IN COMING SPECIAL ELECTION IN NY DIST.

    EQUAL IN 14-1 AMDT
    —-
    ALSO NOOOO MONARCH IMMUNITY FOR TYRANT TRUMP IN JAN 6 CIVIL CASE.

  3. Rest in peace.

    She also wrote:
    “A realistic assessment of regulatory burdens on associational rights would, in an appropriate case, require examination of the cumulative effects of the State’s overall scheme governing primary elections; and any finding of a more severe burden would trigger more probing review of the justifications offered by the State.”

    The same applies to ballots. We have decades of data on this! Look at how successful (or not) third parties and independents of any part of the political spectrum have been in states like Georgia in just getting on the ballot.

    As an analogy, if you want to look at the effects of the Covid-19 pandemic and response measures, you might look at one of the measurable cumulative effects: All-cause mortality.

  5. I’m just going to paste another paragraph from O’Connor. I’m surprised but also relieved that she wrote this.

    “As to the question of dual associations, I fail to see why registration with one party should negate a voter’s First Amendment interest in associating with a second party. We surely would not say, for instance, that a registered Republican or Democrat has no protected interest in associating with the Libertarian Party by attending meetings or making political contributions. The validity of voters’ and parties’ interests in dual associations seems particularly clear where minor parties are concerned. For example, a voter may have a longstanding affiliation with a major party that she wishes to maintain, but she may nevertheless have a substantial interest in associating with a minor party during particular election cycles or in elections for particular offices. The voter’s refusal to disaffiliate from the major party may reflect her abiding commitment to that party (which is not necessarily inconsistent with her desire to associate with a second party), the objective costs of disaffiliation, see, e.g., infra, at 9–10, or both. The minor party, for its part, may have a significant interest in augmenting its voice in the political process by associating with sympathetic members of the major parties.”

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