The 9th circuit will postpone proceedings in Nader v Cronin, the Hawaii 2004 ballot access case over whether a state may require six times as many signatures for a presidential independent candidate as it requires for an entire new party. The reason for the delay is to see if the legislature voluntarily eases the disparity.
Ballot Access News
Edited By Richard Winger
Individual candidates for nomination by a political party must file separately, and the party must maintain an organization in each county.
Hawaii should simply place its presidential elections on the primary ballot. In Hawaii, independent candidates run on the primary ballot, and must obtain a modicum of support from non-partisans in order to be placed on the general election ballot. This procedure has already been upheld by the US Supreme Court (Burdick v. Takushi). It seems odd that a political party can use the results of a presidential election to qualify for continuing status, which simply means that the party nominates its candidates in a primary, but doesn’t let the voters choose the candidates.
That all seems very confusing to me, Jim. Would it not be better just to throw out the whole bunch of conflicting procedures and start over from scratch?
Burdick v Takushi did not uphold that Hawaii system. What the U.S. Supreme Court said about the system was dicta. The question presented to the U.S. Supreme Court was whether there should be write-in space on primary ballots. The Court said the Constitution does not require write-in space on ballots. Any further comments the Court made about the Hawaii system is not a holding of the Court, because the Court hadn’t been asked about those matters.
#2 The conflicting procedures are because Hawaii treats presidential elections differently than it does the election of other officials.
All candidates, including independents and candidates for party nomination are placed on the primary ballot. The primary is conducted entirely by the state and is held in September. Qualification for individual candidates is trivial (25 signatures for a statewide candidate).
In Nader v Cronin the issues are the large number of signature required for presidential candidates, plus the procedures used in validating and verifying the signatures. There were many signatures disqualified because they were illegible.
If Nader were running for governor of Hawaii, he could simply file a petition with 25 signature, either as a candidate seeking the nomination of an established party, or as an independent.
As an independent, he merely needs to outpoll the nominee of one of the political parties. Or if he runs for a party nomination, he merely has to come in first among the candidates. In 2006, the gubernatorial nominees of the Libertarian, Green, and Natural Law parties had 202, 260, and 90 votes, respectively.
Because the state is conducting the election, you eliminate the problem of someone randomly gathering 1000’s of signatures on the beach, and then trying to validate them later, to the state verifying voters in an established procedure.
There is really no reason to have a separate procedure for presidential elections.
#3 In Burdick v. Takushi the Supreme Court reached the following conclusion:
“when a State’s ballot access laws pass constitutional muster as imposing only reasonable burdens on First and Fourteenth Amendment rights – as do Hawaii’s election laws – a prohibition on write-in voting will be presumptively valid, since any burden on the right to vote for the candidate of one’s choice will be light and normally will be counterbalanced by the very state interests supporting the ballot access scheme.”
Justice Kennedy’s dissent states, “I cannot accept the majority’s presumption that write-in bans are permissible if the State’s ballot access laws are otherwise constitutional.” That is, while he does not agree with the Court’s decision, he understands the basis on which it was made.
In Nader v. Cronin, Nader is arguing that Hawaii’s election laws with respect to presidential elections do impose an unreasonable burden on the right to vote.
If Hawaii were to include presidential elections within its election scheme for other offices, the disparity that you complain about would disappear.
It seems to me that a much more meaningful comparison than signature requirements for independent presidential candidates and signature requirements for political parties that must hold primary elections (with separate candidate signature requirements), and only incidentally permit placement of presidential candidates on the general election ballot; would be to compare the signature requirements for independent presidential candidates and independent gubernatorial (and other statewide) candidates.
It is complicated, trying to compare the independent procedure for Governor versus President. An independent candidate for Governor needs 25 signatures, but he or she must then run in the primary. At the primary, the candidate must receive the lowest of (1) the vote received by any gubernatorial candidate who wins his or her own party’s nomination; or (2) 10% of the total primary vote. If there happens to be a minor party gubernatorial candidate, that minor party gubernatorial candidate traditionally wins the minor party nomination by fewer than 100 votes in the primary. In that event, general election ballot access is very easy for the independent running for Governor. But if there is no minor party gubernatorial candidate in the race, then ballot access for the independent gubernatorial candidate is virtually impossible.
It is only complicated because there are separate procedures for governor and president.
In 2008, all six recognized parties in Hawaii had a presidential candidate on the ballot. It is almost certain were there a requirement that the presidential candidate be nominated by the primary that all six parties would have had candidates file. It is quite likely that a serious independent candidate could outpoll the leading candidate of at least one of the parties.