Ralph Nader may be accustomed to losing elections, but it takes a special kind of talent to lose before the first ballot has been cast. But that is just what happened back in 2004, when Hawaiian election officials kept independent presidential candidate Ralph Nader off the state ballot for failing to meet that state’s ballot access requirements.

Ballot access is a catch-all term for the requirements a candidate must meet before their name can appear on the ballot. Generally, a candidate is required to demonstrate a minimum level of support before the state will start printing ballots with their name on it. Ballot access laws vary significantly from state to state, but one thing is almost universally true: candidates from major parties, Republicans and Democrats, have a much easier time getting on the ballot than independents and third-party candidates.Hawaiian law in 2004 required independent candidates like Nader to get 3,711 Hawaiians to sign a petition in order for that candidate to appear on the ballot.  This is five times the number of signatures than are required from candidates from political parties who hold party primaries. Nader challenged the constitutionality of that Hawaiian statute, claiming that the law violated the equal protection clause of the Fourteenth Amendment by requiring so many signatures from independents and not from members of other parties.

The case has languished in federal courts, and Nader’s constitutional challenge was not even heard in a  court until 2008 when he was finally granted a hearing by the 9th Circuit. The Circuit denied Nader’s challenge and upheld the Hawaiian laws as constitutional. The Supreme Court had expressed some interest in hearing the case, and requested that the state submit a brief in response to Nader’s initial cert petition. See the state’s brief here and Nader’s petition here. Ultimately, the Court chose to deny cert in April of this year, finally ending Nader’s near decade-long quest to win the 2004 Presidential campaign. At last, he can have some closure.

Though Nader’s constant attempts at national office may be comical at times, his challenge to Hawaii’s stringent ballot access law raises several serious issues. Ballot access laws exist at the intersection between the highest ideals of democracy and the gritty practical problems involved in holding elections. By their very nature, ballot access laws limit a voter’s choices on Election Day. Democracy requires that voters have the ability to elect the candidate of their choice, yet through ballot access laws, the state  inevitably limits that ability. It can be discomforting to imagine that the state has the capacity, however indirect, to control whom voters can elect.

On the other hand, states do need to have some control over the content of their ballots. If any candidate could appear on the ballot simply by filling out an application or some other minimal requirement, voters could be overwhelmed by the sheer number of possible candidates. For example, a recent election in Clark County Nevada had over 379 candidates file to appear on the ballot. With so many candidates, voter confusion is a very real issue. A poorly structured and perhaps overly populated Florida ballot led to disaster in the 2000 presidential election, so states do have some interest in limiting the number of candidates who appear on the ballot.

Ballot access laws are particularly important in Hawaii, as it is one of only five states that has a complete ban on write-in voting. If a candidate does not meet Hawaii’s ballot access requirements, that candidate is completely barred from receiving any votes at all. Opponents of current Hawaiian election law argue that the restrictive ballot access requirements and write-in bans combine to limit the ability of Hawaiian voters to express themselves at the ballot box.  However, the constitutionality of the write-in ban was upheld by the Supreme Court in Burdick v. Takushi, where the Supreme Court held that the burden on the individual’s right to select the candidate of their choice was relatively minimal.

While a ban on write-in voting and relatively restrictive ballot access laws may seem somewhat trivial, they can have very real consequences on voter choice. In 1986, the year Burdick was decided, roughly a third of candidates for Hawaiian legislative offices ran unopposed. The same was true in 2008, though the 2010 Hawaiian elections did have an unusually large number of contested seats. Furthermore, not a single independent presidential candidate has managed to meet the state requirements to appear on a Hawaiian ballot since 1992. If  so many candidates are running unopposed, and voters are prohibited from writing in the candidate of their choice, it almost seems unnecessary to hold elections at all. Nader’s challenge to Hawaiian election law may force the state legislature to reexamine its ballot access laws and reconsider whether its own interest in regulating elections is greater than the voters’ interest in electing the candidate of their choice.

Anthony Balady is a third year student at William & Mary School of Law

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