Block the Vote
Abusing Election Laws to Prevent Competition

By Bradley A. Smith
from the August 20, 2006 Washington Post

Election laws exist to ensure orderly voting and vote counting and to facilitate a democratic process that helps citizens choose their officials. Increasingly, however, election laws are being used not to achieve either of these ends but rather to reduce competition and deprive voters of choices.

In Texas, for example, indicted former House majority leader Tom DeLay chose not to seek reelection. He moved his residence to the Washington area and withdrew from the race for his House seat. Texas Republicans sought to replace him on the ballot. But Texas law makes it difficult to substitute for a candidate nominated in a primary, and Texas Democrats successfully sued to prevent the Texas GOP from naming a replacement for DeLay. The result is that voters in that heavily Republican Texas district will not have a Republican nominee listed on the ballot in November.

Similarly, in Ohio, another scandal-plagued Republican, Rep. Bob Ney, dropped his bid for reelection. Republicans endorsed a popular state senator, Joy Padgett, in Ney's place. Democratic lawyers, however, are seeking to keep her off the ballot, and news coverage has focused less on issues and qualifications than on Padgett's right to appear on the ballot.

What is the logic behind keeping her off? In this spring's GOP primary, she ran for lieutenant governor and lost. Ohio has a "sore loser" law intended to keep candidates who are defeated in a primary from running in the general election (as Joe Lieberman is doing in Connecticut). Though the law is clearly not intended to apply to situations such as this, Democrats argue that it does in fact prevent Padgett from running for Congress.

Democrats aren't the only ones who can play this game. Also in Ohio, Rep. Deborah Pryce faces a tough race in a district that President Bush barely carried in 2004. Charles Morrison, a conservative businessman who challenged Pryce in the Republican primary in 2004, sought to get on the ballot this year as an independent. The Republican Party successfully petitioned the state to take Morrison off the ballot on the grounds that he is not an independent but a Republican. The matter is in the courts.

Meanwhile, in Pennsylvania, the state Democratic Party is challenging the candidacy of the Green Party's U.S. Senate nominee, Carl Romanelli. Although the Greens are a qualified "political party" under Pennsylvania law, they must still submit 67,000 signatures to be placed on the ballot. Romanelli submitted more than 90,000, but Democrats maintain that many of these are fraudulent. Democrats fear that Romanelli will take votes away from their party's candidate, Bob Casey Jr., in his race with Republican incumbent Rick Santorum.

These are only the most prominent examples of many efforts by political parties to use election laws to reduce or eliminate competition this year. I do not address who is right or wrong as a legal matter in any of these disputes. If, for example, the signatures Mr. Romanelli submitted in Pennsylvania are fraudulent, then as a legal matter he is not entitled to appear on the ballot. I do not advocate ignoring the law.

Rather, the point is that these laws are unnecessarily strict. Texas doesn't need to make it so difficult to replace a candidate who withdraws from the race. Ohio's "sore loser" law serves little purpose -- Connecticut, for example, allows Sen. Lieberman to run as an independent after losing the Democratic primary, and the result is unlikely either to destroy the state's election process or to confuse voters. And what state interest -- what interest of voters -- is served by keeping Morrison off the Ohio ballot?

Similarly, election fraud should not be tolerated. But what public purpose is served by Pennsylvania's requirement that minor-party candidates collect 67,000 signatures to appear on the ballot? Surely no more than a few hundred, or at most a few thousand, signatures are needed to address any concern the state has about ensuring orderly ballots. In Connecticut, Lieberman needed just 7,500 signatures to run as an independent.

Elections should be decided by voters in November, not by lawyers and judges in August. For the past six years much attention has been focused on improving the mechanics of voting and on calls for redistricting reform. But another important way to ensure that voters, rather than courts, choose our leaders is to demand election laws that are no more extensive in their reach than absolutely necessary. A comprehensive review of election laws that serve no compelling state interest would be a good place to start in 2007.

The writer, a former chairman of the Federal Election Commission, is a law professor at Capital University in Columbus, Ohio, and a senior adviser to the Center for Competitive Politics.