Elections in court

October 22, 2014

Vote“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question”. Alexis de Tocqueville made that statement in his seminal work, Democracy in America. Often, American democracy itself turns into a judicial question.  While most Americans remember Bush v. Gore and other post-voting litigation, they may not know that other, lower-profile cases are filed each year.

Before a single ballot had been cast this year, there were a series of lawsuits over whose name would appear on which ballots, and how.  The most high-profile case came from Kansas, where Democratic Senate nominee Chad Taylor sued Secretary of State Kris Kobach for the right to remove his own name from the ballot.  Kobach felt Taylor had not met the requirements to withdraw from the running, but the Kansas Supreme Court disagreed.

Nebraska saw a similar lawsuit when gubernatorial candidate Peter Ricketts attempted to change his ticketmate when his original nominee for lieutenant governor fell victim to a scandal.  In Alaska, a citizen filed suit to block two separate candidates from combining their campaigns into a single ticket.  Both the Nebraska and Alaska courts eventually allowed the changes.

Earlier this summer, Arizona saw a lawsuit challenging the name a candidate chose to use.  Ruben Gallego, a candidate for Congress, wanted his name to appear on the ballot, but a supporter of one of his opponents filed a lawsuit seeking to have him use his birth name, Ruben Marinelarena.  Generally candidates who have legally changed their names may appear on the ballot using their legal name (no matter how odd or suggestive those legal names might be); the suit against Gallego was eventually dropped.

So far this year, the theme seems to be that a candidate gets to choose whether his name is on the ballot, how his name is on the ballot, and what his running mate’s name will be on the ballot. After a flurry of these cases in early September there was a steep drop-off.  Ballot changes become much more difficult once absentee ballots go out, and under the Help America Vote Act (now codified in USCA Chapter 52), overseas military voters have to have ballots sent to them at least 45 days before an election (52 USCA § 20302(a)(8)(A)).  If past election years are any guide, we’ll see a few more political questions resolved into judicial questions before the end of the year.