Ballot Access

Can David French (Or Anyone Else) Get on the Ballot for President this Year?

By signature collection or by lawsuit, hard, but not impossible.


The notion of a new independent presidential candidate is in the news again with the trial balloon floated of running conservative commentator David French for president.

I wrote back in January about the difficulties that Michael Bloomberg, rumored at the time to be thinking about it, would face in launching such an independent presidential bid.

Again relying on information gathered in a paper-only copy  (it is online as well) of the indispensable Ballot Access News, edited by Richard Winger (who I would say had forgotten more than you'll ever know about third parties and ballot access except I have no evidence he's forgotten much), a list of states whose ballot access paperwork deadlines are earlier than two months from now. (Aug. 1 or later).

Following each state name in parentheses is the number of signatures required to get on the ballot. Collecting them, in accordance to generally varying state requirements, can be complicated and expensive, but it is a problem that money and organization can solve.

Deadine already past: Texas

Deadlines in June: Illinois (25,000), Indiana (26,700), New Mexico (15,388), North Carolina (89,366)

Deadlines in July: Delaware (6,500), Florida (119,316), Georgia (49,336), Michigan (30,000), Missouri (10,000), Nevada (5,431), Oklahoma (40,047), South Carolina (10,000), Washington (1,000)

Of the August 1 or later deadline states, only seven of them (Arizona, California, Maryland, Massachusetts, New York, Oregon, Pennsylvania) require over 10,000 signatures.

I have not yet done all the math about electoral college votes involving the states least likely to make the cut by legal signature deadlines, and there could be and likely are local complications that make things not as clear-cut as the above might indicate, but those are the official facts as complied by Winger.

I have heard rumor-y rumblings that Kristol and his team, if indeed there is a team, blithely assume that they can also sue their way through any existing timing barriers with ballot access laws even if they run afoul of them.

This isn't a crazy dream, I am told by Winger in an email interview today. Some of his historical observations:

• "Five states have had June petition deadlines held to be too early: Alaska, Arizona, Nevada, South Dakota, Kansas.  The lower courts were following Anderson v Celebrezze, which outlawed early petition deadlines for independent presidential candidates."

•  "Robert La Follette didn't decide until July 4, 1924, to run as a progressive independent, and he got on in 47 of the 48 states, and the one he missed, Louisiana, was not a deadline problem."

 • "Strom Thurmond in 1948 didn't decide to run until mid-July, and he got on in all the southern states, the only ones he cared about."

• "In the early years of government-printed ballots in the US, the typical state deadline was October."

• "The Libertarian Party wins about half its constitutional ballot access lawsuits….Minor parties and independent candidates have won 55 lawsuits against early deadlines, including in California a few years ago.  The old January deadline for a new party to get on the ballot is now July."

What defines whether a ballot access challenge wins or loses? Winger writes that:

The biggest and most important variable is which judge we get.  Some judges are instinctively sympathetic to underdogs and believe in the ideals of the founders.  Other judges are not. It is sad but very, very true.  We can have a weak case and get a good judge and we win.  We can have an overwhelmingly strong case and get a bad judge and we lose.

Recently, a US District Court Judge in Arkansas refused to enjoin a new law that says a non-presidential independent must submit his or her petition in November of the year before the election, even though 3 times in the past, later independent non-presidential deadlines had been struck down, and one of them was summarily affirmed by the US Supreme Court.

So, the French for America campaign may be absurd on many levels, but it is not necessarily an impossibility.