A minor hullabaloo has been made about the fact that Biden might be removed from the Ohio ballot this year. In case you missed it: the Democratic Party scheduled their convention too late to meet a procedural deadline, and thus Biden may not meet the requirements to be on the ballot. This story has brought much attention to a series of obscure regulations known as “ballot access laws.” Many such regulations are draconian and anti-democratic; the fact that they may remove one of our major presidential candidates from the ballot should be taken as a red flag for our democracy.
Ballot access laws are the rules which dictate who can appear on the ballot and who can’t. The first ballot access laws were created in 1888: before that, any voter could vote for anyone (even those ineligible to hold office). All countries have ballot access laws: what’s unique about the United States’ laws is their weaponization to keep third-party and independent candidates off the ballot.
Most states practice what can be called party discrimination, where members of the two major parties find it easy to run for office, while other candidates have to jump over extra hurdles just to get their names on the ballot. Consider this year’s election. The Democrats and Republicans have automatic access to almost every state’s ballot without having to lift a finger, while independent Robert F. Kennedy Jr. has been forced to spend $15 million collecting over 1 million signatures just to ensure that he’s an option in November. Those $15 million could have been spent on advertising instead.
Other free countries don’t have weaponized ballot access laws like the U.S. does. In fact, the Organization for Security and Co-operation in Europe (OSCE) — a body that monitors international elections, and to which the U.S. is a party — has raised concerns about the U.S.’s ballot access laws in the past, claiming that the U.S. was “at odds with OSCE commitments and international standards” with our harsh requirements for ballot access.
Weaponized ballot access is a frightening precursor to the sort of review boards that certain countries have, which limit who can run for office on the basis of their allegiance to certain parties. For instance, in China, candidates must run with one of nine parties, all of which are affiliated with the government; candidates from other parties are prohibited from running in elections. Nations like China show the danger of how weaponized ballot access can destroy democracy.
Coming back to Ohio, the state legislature in 2009 passed the bipartisan SB 8, moving a procedural deadline for ballot access. The bill meant that third parties would have to complete their petition drives sooner, making it harder for third parties to get enough signatures in time to get on the ballot. However, this change has incidentally made life harder for the Democrats and Republicans as well, by forcing them to hold their conventions by a certain date which Democrats will miss this year.
In the past, exceptions were made to this law for the sake of the two major parties; third parties don’t get this special treatment. In a fair system, all candidates would be treated the same no matter their party, and Biden would be removed from the ballot, just like every third-party candidate before him.
The Attorney General of Ohio partially agrees, saying on the website formerly known as Twitter: “If Libertarians or the Green Party fail to qualify for the ballot, are they being denied their voting rights? Of course not! Same rules for everybody — including the Democrats.” However, the Attorney General would have all parties treated equally badly, rather than allowing all candidates on the ballot.
Party discrimination is a despicable practice, but it was largely upheld in a 1997 Supreme Court case, Timmons v. Twin Cities Area New Party. However, the Supreme Court has indicated in the recent case Trump v. Anderson that it sees state control over ballot access as a threat to the nation. Notably, candidate eligibility and ballot access were recognized to be related in U.S. Term Limits Inc. v. Thornton (1995). If a certain party, say the Democrats, were forced to sue for their place on the ballot, then perhaps Timmons might be overturned and party discrimination might be declared unconstitutional entirely.
That’s why Biden ought to be removed from Ohio’s ballot: to force the Democrats to acknowledge the dangerous implications of weaponized ballot access. If they were forced to sue, with a lawsuit brought before the Supreme Court, we might have a chance to end party discrimination and the tyranny of weaponized ballot access, once and for all.
