Judge upholds petition requirement for independent, minor-party ballot access in Indiana

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Indiana’s requirement for political independents and minor-party candidates to obtain ballot access via petition — a process estimated to cost roughly $500,000 — is not unconstitutional, a federal judge has ruled.

Judge James Sweeney of the United States District Court for the Southern District of Indiana granted the state of Indiana’s cross-motion for summary judgment in his Monday order denying summary judgment to a group of Indiana political third-parties and independent candidates.

“For now, under the Supreme Court’s lenient standard for state burdens on minor-party ballot access, a 2% petition requirement, even accompanied by tedious procedural burdens, is constitutionally permissible,” Sweeney wrote.

According to Sweeney’s order, in Indiana, ballot access is indexed to the latest secretary of state election.

Parties whose candidate receives 10% or more of the vote in that election must nominate candidates by primary elections, which are publicly funded. Parties whose candidate receives between 2% and 10% of the vote nominate their candidates by party convention. All those parties above 2% retain ballot access automatically.

Everybody else — parties whose candidate receives less than 2% of the vote, new parties and all independents, regardless of how they performed in the previous election — must qualify for ballot access by petition. That requires getting hand-signed petitions amounting to 2% of the vote total from the previous secretary of state election — about 40,000 in recent years, according to Sweeney — and submitting those petitions, divided up by county of voter registration, to each of the 92 county election boards by June 30 of the election year.

The Libertarian Party has retained ballot access by winning 2% or better of the vote in the secretary of state elections. But other minor parties, including the Green Party, and various independent candidates have chosen not to attempt nomination petitions based on costs.

According to Sweeney, the Libertarian Party claims it must devote undue attention to non-presidential-year races because it is convinced that it could not regain ballot access by nomination petition were it to fall off the ballot.

Current estimates reflect that a nomination petition would cost roughly $500,000 and would require gathering some 60,000 signatures — allowing a 50% overage for those signatures later found invalid — to have a fair chance of succeeding.

In their complaint, the minority parties and independent candidates argued that the 2% requirement, exacerbated by the 92-county procedure, imposes a burden that outweighs the state interests of avoiding voter confusion and ballot overcrowding.

But citing Hall v. Simcox, 766 F.2d 1171 (7th Cir. 1985), Sweeney ruled that precedent compelled him to find that burden is not unconstitutional.

“The Seventh Circuit in Hall evaluated the same 2% requirement challenged here and came to the same conclusion,” the judge wrote.

The U.S. Supreme Court has upheld higher nominating petition requirements, Sweeney added, citing Jenness v. Fortson, 403 U.S. 431 (1971), in which the U.S. Supreme Court upheld a Georgia law requiring prospective independent candidates to have a nominating petition signed by 5% of the electorate in order to be listed on the ballot. Further, Jenness upheld a mid-June deadline, earlier than the June 30 deadline in Indiana.

“In conclusion, this Court does not see anything here to distinguish this case from precedent, which is ‘beyond [its] power to reexamine,’” Sweeney wrote.

The case is Indiana Green Party, Libertarian Party of Indiana, John Shearer, George Wolfe, David Wetterer, A.B. Brand, Evan McMahon, Mark Rutherford, Andrew Horning, Ken Tucker, Adam Muehlhausen v. Diego Morales, in his official capacity as Indiana Secretary of State, 1:22-cv-518.

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