Some Recent and Ongoing Election Law Fights Over Ballot Access: New Skirmishes Could Determine the Balance of Power in Congress

By RICHARD L. HASEN

Thursday, Aug. 31, 2006

What do former House Majority Leader Tom DeLay, Connecticut Senator Joe Lieberman, former House Administration Committee Chair Bob Ney, and the Green Party of Pennsylvania have in common?

They are all featured in the latest election law skirmishes between the parties--this time over ballot access.

It is not your imagination. The pace of election law litigation has indeed picked up since 2000, when the United States Supreme Court decided Bush v. Gore. With partisan control of the United States House of Representatives (and possibly the U.S. Senate) up for grabs this election season, it is no surprise that the parties have aggressively used changes in election law, and election law litigation, as part of a political strategy to gain even a small advantage in what could be another group of elections with razor-thin margins.

The most contentious election law litigation this election season involves disputes over new onerous voter identification rules. But the runner-up is litigation raising questions of ballot access. These questions have come up in elections involving candidates withdrawing in the face of scandal, candidates who lost in their political primaries but who seek to run again in the general election, and major parties making strategic use of third party-candidates to siphon support away from their opponents.

In this column, I'll scope out some of the legal terrain relating to ballot-access litigation, and consider how these issues, and their resolution, could affect the balance of power in the next Congress.

All Politics Law is Local: Replacing Withdrawing Candidates on the Ballot

Both Tom DeLay and Bob Ney became embroiled in the Jack Abramoff lobbying scandal, and decided to withdraw from their races for House reelection, rather than face possible defeat at the ballot box. Though DeLay withdrew from the race for the Texas 22nd Congressional district after winning the Republican primary, he tried to do so in a way that would allow the Republican Party to name a replacement to run against the Democratic party's nominee for the seat, Nick Lampson.

Texas law provides that no replacement can be named for withdrawing candidates, but it allows the party to name a replacement for "ineligible" candidates, such as a candidate who dies after winning the primary but before the general election.

To try to take advantage of this exception, DeLay established residency in another state, and the Republican Party declared him ineligible. But the Democrats sued, relying on the United States Constitution's Qualifications Clause, which says that "No person shall be a Representative who…shall not, when elected, be an Inhabitant in that state in which he shall be chosen." (Emphasis supplied.) Democrats argued successfully that under the Qualifications clause, whatever Texas law or the Texas Republican Party might say to the contrary, DeLay remained eligible for the seat as long as it was physically possible for him to reestablish residency in his district by Election Day. Republicans appealed all the way to the Supreme Court and lost.

You'd think that would end the litigation in the Texas 22. But not so fast. Now Republicans have united behind a write-in candidate, Shelley Sekula-Gibbs. Voters wishing to vote for Sekula-Gibbs will have to use electronic voting machines (which don't have a hyphen, by the way) to write in this candidate's name. (And to complicate matters even further, the Texas governor called a special election to fill the few months remaining in DeLay's term. Sekula-Gibb's name will appear on that ballot--for the special election--but she'll remain a write-in in the general election. Voters may be so confused they may not realize they'll need to write in her name if they want to vote for her in the general election.)

If the race is close, the outcome could turn on disputed votes potentially cast for Sekula-Gibbs, judged by partisan election officials under a vague "intent of the voter" standard. As one commentator wrote, ""Misspellings may well be the hanging chad of this election season."

Political junkies might think it is unfair that the Texas Republican Party could not name a replacement for DeLay, but courts allowed the New Jersey Democratic Party to name a replacement for Senator Robert Torricelli when he withdrew from his 2002 Senate reelection race, in the face of a different scandal.

Each state sets its own rules for replacing withdrawing candidates (yes, even in federal elections), and the New Jersey Supreme Court's decision allowing the Torricelli replacement was itself controversial.

Legislators need to develop clear rules for how withdrawing candidates can be replaced, and many of these rules should be liberalized to maximize voter choice on Election Day, consistent with sound principles of election administration and with the Qualifications Clause. (We don't want candidates to be replaced so late on the ballot that election officials cannot conduct their elections in an orderly and fair way; nor do we want state election rules that clash with the Constitution.)

Sore Losers Can Live to Fight Another Day

Ballot access fights extend beyond withdrawing candidates to "sore losers." After incumbent Connecticut Senator Joe Lieberman lost the Democratic Primary to challenger Ned Lamont, Lieberman filed petitions allowing him to nonetheless run in the general election against Lamont, the Republican Party's nominee, Alan Schlesinger, and additional minor party candidates.

In order to get this second bite at the apple, Lieberman filed petitions creating a new political party, "Connecticut for Lieberman." He could have run, instead, as an independent candidate, but creating the new political party will give him a higher position on the ballot, which some believe could give him an advantage in the election.

Some commentators think Lieberman should not be able to run independently after losing the primary. But so far, efforts to keep Lieberman off the ballot, or to strip him of his Democratic Party membership, have been unavailing.

The reason Lieberman will be on the ballot is, in part, that Connecticut is not among the many states that have "sore loser" laws that prevent candidates who lose in a primary to run for office in the general election as an independent. The United States Supreme Court has upheld such laws as justified by a state interest in preventing "party splintering" and factionalism.

But the Connecticut situation shows that the Supreme Court should rethink this position.

There seems little danger of the Connecticut Democratic Party breaking apart over the Lieberman strategy. Indeed, the organized Democratic Party appears to be uniting behind Democratic candidate Ned Lamont.

In addition, "sore loser" candidacies have their merits: Allowing a sore loser like Lieberman to run maximizes voter choice without hampering sound election administration. If Connecticut voters view Lieberman as a sore loser, they are free to vote for one of his many opponents. And with Lieberman's decision to still run causing a great deal of controversy, voters can hardly miss the issue.

It is a different question with Lieberman's description of himself as a Democrat. The Supreme Court has affirmed the right of political parties to decide with whom to associate. At the very least, the Democrats should be able to make sure that the Democrats can block Lieberman from referring to himself as a Democratic candidate in official ballot materials.

At one point, Democrats had threatened to use Ohio's sore loser laws to block Republican Joy Padgett, a state senator, from running for election in the Ohio congressional district being vacated by the retiring Bob Ney, also enmeshed in the Jack Abramoff scandal. But their arguments under Ohio election law appeared weak, and they abandoned the effort.

Using, and Blocking, Third Party Candidate Ballot Access

There is a long tradition of major parties and others using third-party candidates as a way of trying to siphon off votes from a major party opponent. In a 1986 Senate race for example, a supporter of California Democratic incumbent Senator Alan Cranston spent $120,000 to produce advertising for a right-wing third party candidate, in an effort to siphon votes away from Cranston's Republican challenger, Ed Zschau.

In this election, Republicans in Pennsylvania have been helping to finance the qualification drive of a Green Party candidate who seeks to run in the U.S. Senate race along with Republican incumbent Rick Santorum and Democratic challenger Bob Casey. Democrats, in turn, have argued in court that the Green Party candidate should not appear on the ballot because he did not collect enough valid signatures. As the Santorum-Casey race tightens, it is possible that the outcome of the race could turn on whether or not the Green Party candidate appears on the ballot and siphons enough votes away from the Democratic candidate to allow Santorum to be reelected.

This presents the most difficult situation of all from the perspective of fair election laws. On one hand, third parties and independent candidates should have easy access to the ballot, to maximize voter choice and to raise issues during a campaign that major party candidates might choose not to address. On the other hand, because our system is so dominated by two political parties, third parties present a real risk of "spoiler" candidacies that can harm voter interests.

Indeed, in Florida 2000, the number of voters for Ralph Nader greatly exceeded the margin between Bush and Gore. If you assume that both Gore voters and Nader voters preferred Gore over Bush, the presence of Nader on the ballot arguably led a majority of voters to be worse off than had there been only a choice between Bush and Gore.

Regardless of the ideal form of ballot access for third party and independent candidates, the Pennsylvania Senate race shows that both major parties are apt to use election laws--and election litigation--to achieve electoral advantage. We should expect no less in these partisan times.

The best we can hope for, then, is fair and neutral election administration by both election administrators and the courts. Let's hope it is not too much to ask.


Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, writes the Election Law Blog.

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