Ballot access explained, petitions, fees and the deadlines that kill campaigns

Some of the cruelest losses in politics never make the evening news, because there is no election night to cover. Take a hypothetical candidate who never appears on a ballot. He raised the money, printed the signs, shook the hands, stood in the rain outside the grocery store, and then a clerk looked at a stack of petitions and said, "You're short." Or a form arrived at four o'clock on the day it was due at three. Or a signature was dated in the wrong box. And just like that, voters never got the chance to say yes or no, because the choice was made for them in an office with fluorescent lights.

Conservatives talk a great deal, rightly, about voters having a voice. I'd like to talk about the step before the voice, which is whether there is a name on the ballot to choose. This is ballot access, and it is one of the least glamorous and most consequential parts of election law. It is also an area where the facts matter, the rules differ at every state line, and the cost of a mistake is total.

Here is the plan. I'll define the terms, explain the main mechanisms, walk through the way courts have treated the rules, give a worked example of how many signatures a campaign really needs, and tell you where to get the actual rules for your own race. I cannot give you your state's numbers. Nobody can, reliably, in a blog post, because legislatures change them and courts rewrite them. You need the current text from your secretary of state or county election office, and I'll tell you what to ask.

What ballot access means

Ballot access is the set of legal requirements a person must satisfy to have his name printed on the official ballot for an office. The Constitution leaves most of the details to the states. For federal offices, the Constitution sets the basic qualifications: age, citizenship and residence for Representatives, Senators and the President. The Elections Clause of Article I lets states set the "Times, Places and Manner" of congressional elections, subject to Congress. The mechanics of getting on the ballot, which are not in the Constitution, are mostly state law, and state law is wildly varied.

Two principles pull against each other.

1. The state's interest in a manageable ballot. A ballot with two hundred names on it is useless. States may require a candidate to show a "significant modicum of support" before taking up space and public money. They also have an interest in avoiding voter confusion, frivolous candidacies and, in a multi-stage system, a primary that is dominated by a swarm of unserious entrants.
2. The citizen's interest in running and the voter's interest in choosing. Requirements that are too high protect incumbents and the two big parties from competition, and they take choices away from voters.

Those two principles are the whole subject. Everything else is detail about where to draw the line.

The main tools

Filing fees

Some offices require a filing fee, a set payment to the filing office. The fee is supposed to cover administrative costs and discourage frivolous filings. In some states the fee is a flat dollar amount, in others a percentage of the office's salary.

Courts have limited fees. In Bullock v. Carter (1972) the Supreme Court struck down Texas's system of very high filing fees for primary candidates, because it effectively excluded candidates who could not pay and the voters who supported them. In Lubin v. Panish (1974) the Court held that a state cannot require a fee from a candidate who cannot afford it without giving him a reasonable alternative, such as a petition. That is why many states let a candidate file by petition instead of paying the fee, or let a poor candidate substitute one for the other.

Petition signatures

A nominating petition collects signatures of registered voters who support putting the candidate on the ballot. The rules vary on almost every dimension:

• The minimum number. It may be a fixed number, a percentage of registered voters in the district, or a percentage of votes cast in a prior election. For a small office, it can be a couple of dozen. For statewide office, it can be many thousands.
• Who may sign. Typically a registered voter in the district. Some states restrict signers to voters registered in the candidate's party for a party office. Some forbid signing for more than one candidate for the same office.
• Geographic spread. Some states require signatures from several counties or districts, to show broad support.
• Format. The petition sheet usually must carry the office, the district and the circulator's affidavit in a set form.
• Circulator rules. Who may collect signatures. Some states have required circulators to be residents or registered voters, and courts have struck some of these rules down.
• The window. Signatures are valid only if collected between certain dates.

Party nomination versus independent routes

There are typically two roads onto a general-election ballot.

1. Through a party. The candidate wins the party's nomination at a primary, caucus or convention. The party's nominee then appears on the general-election ballot with the party label, usually without further signatures, because the party has already shown it has standing under the state's rules. To get into the primary, though, a candidate may still need signatures or a fee.
2. As an independent or through a minor party. The candidate collects signatures, usually many more than a party nominee needs, by an earlier deadline. A new or small party may have to petition to be recognised as a party at all.

The Supreme Court has addressed both roads. In Williams v. Rhodes (1968) it struck down Ohio rules that made it practically impossible for new parties to get on the presidential ballot. In Jenness v. Fortson (1971) it upheld Georgia's rule requiring independent candidates to collect signatures equal to 5 percent of eligible voters, in part because Georgia also offered other routes and did not make the ballot unreasonably hard to reach. In Storer v. Brown (1974) it upheld California's rule that independent candidates must not have been affiliated with a party for a year before the primary. And in Anderson v. Celebrezze (1983) it struck down an Ohio deadline in March for independent presidential candidates, because it burdened voters' choices for the November election without a sufficient state interest.

The lesson from those cases is that the Court asks how heavy the burden is and how strong the state's reason is, and it does not hand down a single numerical rule. A signature minimum that is reasonable in one state may be unconstitutional in another because of other features of the system.

Deadlines

Every one of these requirements comes with a clock. The filing deadline is the last moment to submit the paperwork. There may be a separate deadline for submitting signatures, a deadline to withdraw, a deadline to challenge, and a deadline to fix defects. Deadlines are strict. Offices usually close at a stated hour on a stated day, and the day is rarely extended for a car breakdown. If the deadline falls on a weekend, check the statute to see whether it moves to the next business day, and do not assume.

The anatomy of a challenge

Even a candidate who files on time can be knocked off the ballot later. Here is how it usually goes.

1. Filing. The candidate submits forms and, where required, the petition.
2. Review. The election office checks the forms for completeness and counts signatures. Many offices verify signatures by checking each name against the voter registration list, and sometimes by comparing signatures.
3. Challenges. An opponent, a voter or a party can file a challenge, alleging defects: signers who are not registered, duplicates, signatures from outside the district, circulator violations, or forms that are not in the right format.
4. Hearing. An election board, a clerk or a court hears the challenge.
5. Cure. Some states allow a cure period, a short window after notice in which the candidate may correct certain defects. Others do not. A cure period is a lifeline if your state has one, and a trap if you don't know about it.
6. Appeal. The candidate may appeal to a court, usually on an expedited schedule, because ballots must be printed.

Why does a signature get tossed? The usual reasons are that the signer is not registered at the address shown, is registered in a different district, signed twice, wrote an illegible name, or used a date outside the window. Circulator mistakes, such as failing to sign the affidavit, can knock out a whole sheet at once.

A worked example: how many signatures do you really need?

Here is a hypothetical to make the arithmetic concrete. Say your state requires 1,000 valid signatures to get on the ballot for a particular office. The word is valid. Experience in many places, and common sense, tells you that a share of the signatures you collect will be rejected. Say that in your area, 30 percent of the signatures turn out invalid for the reasons above. Then only 70 percent are valid.

To find the number you must collect, divide the requirement by the valid share: 1,000 divided by 0.70 is 1,428.57. You cannot collect 0.57 of a signature, so round up to 1,429. A safer plan aims for a cushion beyond the bare arithmetic, such as 1,500 or more. The cost of an extra hundred signatures is a weekend. The cost of falling a hundred short is the entire campaign.

Now suppose you find that you have a campaign team of ten volunteers and the collection window is four weeks. You need 1,500 signatures. That is 150 per volunteer, or about 38 per volunteer per week (150 divided by 4 is 37.5). That is manageable. It also makes it clear that the work is not in the last week. Start early, and count valid signatures, not signatures.

What to ask, and who to ask

The rules for your race live in a handful of documents. Ask for them by name.

1. The candidate filing guide or candidate handbook from the secretary of state or the county election office, for your specific office and year.
2. The statute and the administrative rules it cites. A good filing guide quotes them. Read the relevant sections.
3. The petition forms, the official ones, and the instructions for circulators.
4. The calendar: filing opens, filing closes, signatures due, challenges due, cure period, withdrawal date and ballot certification.
5. The challenge procedure: who hears it and how fast.
6. Written confirmation of any answer that matters. If you call, follow up with an email so you have a record.

Be wary of old information. Legislatures amend ballot-access laws, and courts strike them down. A guide from the last cycle, a post from a campaign forum or a friend's memory are not substitutes for the current guide. Also read the Federal Election Commission's website if you seek federal office, though the FEC regulates campaign finance and registration, not the ballot itself, which is a state matter.

A famous example of the cost

In the 2012 Republican presidential primary season, Virginia required candidates seeking a place on the Republican primary ballot to submit 10,000 valid signatures, including 400 from each of the state's congressional districts. Two well-known candidates, Newt Gingrich and Rick Perry, failed to qualify, and the primary ballot carried only two names: Mitt Romney and Ron Paul. Perry challenged the requirement that circulators be Virginia residents in federal court, and the courts did not put him on the ballot. Whatever one thinks of the candidates, the lesson is blunt. A national campaign with staff and money lost access to the ballot in a state because it did not meet a paperwork requirement. A first-time candidate for county commissioner has no better odds if he is careless.

The best argument for strict rules, and the answer

The strongest case for strict rules goes like this. A ballot is a public good, printed at public expense, and a candidate who cannot find a few hundred voters to sign a petition is not ready to represent them. Signature requirements also help weed out fraud and confusion. A forged petition is an attack on the integrity of an election, and verification is the safeguard. Courts are right to leave states wide discretion.

I accept most of that. Verification matters. The point of a signature is that a real voter signed it, and a state that checks is doing its job. Conservatives who care about election integrity should not want a system with no checks.

But two points stand against the excesses. First, rules should measure support, not trap the careless. A requirement that a signature fail because the signer wrote "St." for "Street" is not a security measure. It is a trap. A cure period that lets a candidate fix technical defects while preserving real verification is better than a system that rejects honest signatures. Second, ballot access rules that are written or applied to protect incumbents offend the principle that political power belongs to the voters. A conservative should be as suspicious of an entrenched incumbent protected by paperwork as of any other monopoly. The test is simple: does the rule serve the voter, or does it serve the people already on the ballot?

Practical rules for candidates

1. Read the guide before you announce. Your first call is to the filing office.
2. Put every date on the calendar, and treat the deadline as a day earlier than it is.
3. Collect more than you need. Use the arithmetic above.
4. Use circulators who know the rules. Train them. Check each sheet before it leaves the table.
5. Check signatures against the voter list if the office makes it available, before you file.
6. File early, in person if possible, and get a dated receipt.
7. Know the cure period and the challenge procedure before you need them.
8. Keep copies of everything.

For a first-month checklist that puts these steps in order, see running for local office, the first thirty days, step by step, and for the numbers behind a winning campaign, see the win-number worksheet, how many votes does your race really take. If you care about the citizen side of the same machinery, see How a Citizen Initiative Gets on the Ballot, Signature by Signature, and for the basics of reading court decisions like the ones cited here, see How to Read a Supreme Court Opinion Without a Law Degree.

The bottom line

• Ballot access is the set of rules, usually fees, petitions and deadlines, that decide whether your name is printed on the ballot at all. It is state law, it varies widely, and it changes.
• The Supreme Court has said states may require a showing of support but may not make the ballot unreasonably hard to reach. The cases to look up are Williams v. Rhodes, Jenness v. Fortson, Bullock v. Carter, Lubin v. Panish, Storer v. Brown and Anderson v. Celebrezze.
• Plan on a cushion. If you need 1,000 valid signatures and 30 percent will be rejected, you must collect at least 1,429, and more is safer.
• Never rely on a blog post, including this one, for the rules of your race. Get the current filing guide, statute and calendar from your secretary of state or county election office, and file early.
• Treat strict signature verification and fair access as allies. The goal is a ballot that voters can trust and that candidates can reach. The elections page is a place to follow what is on the calendar.