Throughout most of the nineteenth century, voters were required to bring their own ballots to the polling places. Usually, ballots were preprinted by the political parties and contained straight party tickets. When the secret ballot was introduced around the turn of the century, states had to print ballots and decide which parties and candidates should be listed. Until 1968, criteria for ballot access were controlled entirely by the states.
In that year, George Wallace enjoyed significant support in his independent challenge to the major party nominees for the presidency, richard m. nixon and hubert h. humphrey. Wallace met the requirements for ballot listing in every state but Ohio, where he satisfied the 15 percent signature requirement but was unable to do so by the early deadline of February 7. In Williams v. Rhodes (1968), the Supreme Court ordered Ohio to list Wallace. Although the state had an interest in seeking to assure that the eventual winner would receive a majority of the votes, it could not pursue that objective by shielding the two established parties from competition. Three years later, in Jenness v. Fortson (1971), the Court upheld Georgia ballot access requirements that had prevented most but not all independent candidates and new parties from reaching the ballot.
Some critics have complained that the Court's standard for evaluating ballot access requirements in Williams, Jenness, and several subsequent decisions has been too vague. In Williams the Court said such requirements must be justified by a compelling state interest, but in Anderson v. Celebrezze (1983) the Court moved toward a more general balancing test, denying that there was a "litmus-paper test" for identifying invalid regulations. Despite the criticisms of those who favor neat doctrinal formulations, the pattern of results in ballot access cases has been reasonably clear. The Court has struck down requirements that bar truly competitive candidates and parties, while upholding other requirements, even those that work harshly against typical third parties and independent candidates who have no prospect of winning more than a small percentage of votes.
One exception is that the Court has struck down mandatory filing fees for ballot listing even when, as in Lubin v. Panish (1974), the fee was low enough that it could not realistically have blocked a seriously competitive candidacy. Another is that the Court has upheld restrictions intended to prevent losing factions in primaries from carrying over their intraparty disputes into general elections. For example, in Storer v. Brown (1974), the Court upheld a California statute barring members of a party from running as independent candidates.
The ballot access cases have also been criticized more substantively on the ground that they permit states to adopt overly restrictive requirements. Justice thurgood marshall, dissenting in Munro v. Socialist Workers Party (1986), criticized the majority for presuming "that minor-party candidates seek only to get elected." Instead, he pointed out, their candidacies serve "to expand and affect political debate." Those who believe that carrying out the function of choosing officers to run the government ought to be the main consideration in designing electoral procedures are likely to take a more favorable view of the ballot access decisions.
Daniel H. Lowenstein
Smith, Bradley A. 1991 Note, Judicial Protection of Ballot-Access Rights: Third Parties Need Not Apply. Harvard Journal on Legislation 28:167–217.
Winger, Richard 1996 How Ballot Access Laws Affect the U.S. Party System. American Review of Politics 16:321–340.