On November 17, the U.S. Supreme Court refused to hear Ohio v Citizens for Tax Reform, 08-151. In the 40 years that the U.S. Supreme Court has been involved in ballot access, this is only the eighth time that the Court has refused to hear a ballot access appeal brought by a state.
The Court generally treats state governments better than it treats ordinary litigants. The Court only takes 2% of the cases presented to it. However, states have a 50% success rate when they ask the Court to take a ballot access case.
Other states that have asked the Court to hear a ballot access appeal, and been turned down, are California and Colorado (on the issue of whether a congressional candidate must be a registered voter); Nebraska (on the procedural issue of whether the 11th Amendment bars ballot access cases); Illinois (on whether a modified, moderate county distribution requirement for a statewide petition violates Equal Protection); New York (also on the county distribution requirement for statewide petitions); Arkansas and Pennsylvania (on the issue of early petition deadlines for non-presidential petitions).
Instances when the minor party or independent candidate won in the lower court, and the state asked for U.S. Supreme Court review, and the U.S. Court accepted the case, are from California in 1972, from Colorado in both 1988 and 1999, from Illinois in 1979, from Maryland in 1977, from Ohio in 1972, from Texas in 1992, and Washington in 1986. Fortunately, in all those cases except the Washington case, the U.S. Supreme Court then went on to agree with the lower court, and the state in question lost again. In the Maryland instance the U.S. Supreme Court merely remanded the case, but did so in a way that the case was ultimately won. In the Ohio 1972 case, the legislature vastly improved the law while the case was pending in the US Supreme Court so no decision was actually issued, except on a peripheral issue.