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Nominations for elective office in the United States online

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impossible for the voters to help themselves, the only remedy
is to call in the strong arm of the law, and obtain, by statutory
enactment, what party rules are powerless to accomplish.



CHAPTER IX.

REGULATION BY LAW.

i. The Introduction of Legislation. The regulation of party
nominations by law is a matter of comparatively recent date.
The first statute upon the subject appears to have been passed
by the New York Legislature in 1866. It was very weak and
ineffective, and was superseded, in 1882, by a more stringent
act, regulating the duties of inspectors at primaries, and im-
posing penalties for illegal voting and for the bribery of voters
and delegates. In 1883, the Pennsylvania Legislature passed
two separate acts for the punishment of bribery and fraud at
primary elections, and in 1884, New Jersey passed a similar
act. Other States followed; but it was not until 1888 that
Massachusetts, usually in advance of her sister States in the
matter of election laws, passed a mild law for the regulation of
party caucuses.

In addition to these laws for the regulation of caucuses and
primary meetings, the introduction of the Australian ballot
system has brought with it a new system of official nomina-
tions by "nomination papers," together with certain provisions
concerning certificates of nomination to be furnished by cau-
cuses and conventions. Such certificates are rendered neces-
sary by the fact that all ballots are printed and distributed by
the State.

At the present time (July, 1896) there is only one State
which has no statutory regulation whatever relative to the
nomination of candidates for elective office. 1 In all except
one of the remaining forty-four States, Australian ballot acts

1 Louisiana.



REGULATION BY LAW. [CHAP. IX.

have been passed. 2 Of the States which have Australian
ballot acts, at least twenty-five 8 have special laws regulating
party nominations, apart from the Australian ballot provisions.
For convenience, we shall consider first the provisions of the
regular ballot acts so far as they affect nominations, and then
pass to a consideration of the special laws to which reference
has just been made.

2.. The Regulation of Nominations under the Australian Ballot
Acts. Owing to the fact that under the Australian ballot
system the State authorities have charge of printing all ballots
used at elections, it is necessary that there should be some
legal provisions as to the placing of names of candidates upon
the official ballot. In all the States having Australian ballot
laws, except three, 4 two methods of nomination are recog-
nized, the American method of nomination by a caucus or
convention of a political party, and the English method of
nomination by "petition," "certificate," or, as it is usually
called, a "nomination paper." The latter method was in-
tended for "independent" as distinguished from "party"
nominations. Owing, however, to the "limitation" provision
in the laws of most of the States, according to which a politi-
cal party must have cast a certain number of votes at the pre-
ceding election, in order to enable it to get the names of its
caucus and convention nominees upon the official ballot, it has
come about that the smaller political parties have been obliged
to use this method of nomination papers. The object of this
limitation is to prevent the ballot from becoming unwieldy,
and therefore confusing to the voters. It is doubtful, however,
if such a motive justifies the practical disfranchisement of a
considerable number of legal voters. Before the introduction
of the Australian ballot, these small parties could print their

* The single exception is South Carolina. The Florida Act (passed in 1893)
applies only to the city of Jacksonville.

' California, Colorado, Connecticut, Delaware, Georgia, Illinois, Kansas, Ken-
tucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska,
Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon,
Pennsylvania, Washington, West Virginia, Wyoming.

4 New Hampshire, Delaware, and Michigan have no provision for nomination
papers.



SECT. 2.] REGULATION OF NOMINATIONS. 175

tickets at a trifling expense, and they could vote those tickets
and have them counted. Under the present system, however,
they cannot get the names of their candidates printed upon
the official ballot unless they are willing to go to the trouble
and expense of circulating nomination papers.

In regard to this matter of limitation, the laws of the differ-
ent States differ from one another considerably, the requisite
percentage of the total vote ranging from ten to one; 5 in
eleven States there is no legal limitation, 6 so that any so-
called "political party" may have the names of its candidates
placed upon the official ballot. In these States the definitions
of a political party and of a convention and. primary are of
interest. The Delaware Act states that "a political party
within the meaning of this act shall be an organization of bona
fide citizens and voters of any county in this State, which
shall, by means of a convention, primary election or otherwise,
nominate candidates for public offices to be filled by the peo-
ple at any general or special election within the State. " 7 In
order, however, to guard against bogus parties, the law further
provides that "no organization shall be regarded as a political
party that does not represent at least 100 bona fide citizens and
voters of the county in which it exists." In case the county
clerk has any doubt as to the genuineness of any party, he
may demand a certificate signed by twenty-five voters belong-
ing to such party. The Mississippi Act provides that the
official ballot shall contain " the names of all candidates who



6 Colorado provides that a party must have cast at least ten per cent of the
entire vote of the State or district ; Massachusetts, West Virginia, Missouri, Ne-
vada, California, and Oregon require three per cent ; Rhode Island, New Jersey,
Pennsylvania, Kentucky, Illinois, Wisconsin, and Iowa two per cent ; and Maine,
New Hampshire, Vermont, Maryland, Ohio, Indiana, and Minnesota one per cent.
In fourteen of these States the limitation applies to districts as well as to the State
at large ; in the remainder only to the State ; and in New Hampshire and Massa-
chusetts only the vote for governor is considered. The rigor of the Massachusetts
three-per-cent requirement has been somewhat modified by an Act passed in 1895.
(Acts of 1895, Ch. 323).

6 New York, Delaware, Mississippi, Arkansas, Michigan, Kansas, North Dakota,
South Dakota, Idaho, Wyoming, and Washington.

7 Registration and Election Laws of the State of Delaware (Dover, 1892), 2-
chapter 37, Sec. 3, of the Laws.



1 76 REGULA TION BY LAW. [CHAP. IX.

have been put in nomination not less than fifteen days pre-
vious to the day of election, by a nominating convention, or
other nominating body, or at a primary election of any politi-
cal party." 8 Arkansas puts the names of candidates upon the
ballot, provided they are certified to by the chairman and secre-
tary of a convention, or by the proper officers of a primary
election held by "any organized political party." 9 North
Dakota, South Dakota, Idaho, and Washington all define a
convention as "an organized assemblage of electors or dele-
gates representing a political party or principle." 10

3. Certificates of Nomination. Practically, all the States
having Australian ballot laws require that certificates of nomi-
nation shall be filed with the appropriate officers, stating that
the party holding the primary or convention has cast the
required percentage of the total vote at the preceding election,
together with the names of the candidates, the political party
they represent, the offices for which they are nominated, and
all other facts required by law. 11 In the case of candidates for
offices to be voted for at large by the voters of the entire State,
the certificate must be filed with the Secretary of State, while
in the case of county and municipal offices, they are usually
filed with the county, city, or town clerks. 12

It is usually provided that the certificate shall be signed by
the presiding officer and secretary of the convention or caucus,
and, in case of a primary election, by the judge of election.
In Mississippi, however, the provisions of the law in this
regard are very loose. The law provides that the names of all

8 Chapter 172, of the Annotated Code of Statute Laws, Sec. 51. Registration
and Election Laws for the Information of Registrars and Commissioners (Jackson,
1892), 7.

9 Act of 1891, Digest of the Election Laws of the State of Arkansas, published by
authority of the General Assembly (Little Rock, 1891), II (Sec 29).

w North Dakota, Act of March 7, 1891, Sec. 2. Election Laws of North Dakota,
published by authority (Bismarck, 1891), 8.

11 Blank certificates of nomination will be found in Appendix E.

18 In West Virginia, certificates of nomination are filed with the clerk of the cir-
cuit court ; while in Arkansas, in the case of county officers, they are filed with the
county election commissioners, and in Pennsylvania with the regular county com-
missioners. In West Virginia, however, in the case of primary elections, the cer-
tificate must be signed by the chairman and secretary of the county or district
committee.



SECT. 4-] NOMINATION PAPERS. 177

candidates nominated at a primary or convention shall be
printed upon the official ballot " upon the written request of
one or more of the candidates nominated, or of any qualified
elector who will make oath, that he was a member of the con-
vention or other nominating body, or a participant in the
primary election, and that the person whose name is presented
by him was nominated by such convention or other nominat-
ing body or primary election. " 13

4. Nomination Papers. The nomination paper must state
the name of the candidate, his place of residence, and the
office for which he is nominated, and must be signed by a cer-
tain minimum number of legal voters. According to the
English law, "every nomination paper must be signed by two
registered electors as proposer and seconder, and by eight other
registered electors as assenting to the nomination." u That is,
it only requires ten signatures to nominate a candidate for the
English Parliament; in the United States, on the other hand,
the number is, as a rule, much larger. The object of this
severe requirement, as of the percentage requirement, is the
prevention of frivolous nominations. In regard to the wisdom
of such restrictions, Mr. John Wigmore, in his admirable
little book on the Australian ballot system, truly says: "The
real restrictions on the number of candidates will be found to
be, as English and Australian experience shows, public opinion
and the interests of the aspirants. The former will throw ridi-
cule on a candidacy which has no support, and the latter will,
as now, have a deterring influence wherever there is not some
strong ground for the candidacy. " 16 In England the fact
that the candidates have to bear all the official expenses of
holding the election, is a strong safeguard against frivolous
nominations.

In regard to the number of signatures required, there is a
great diversity among the different States. Some of the

13 Annotated Code of Statute Laws (1892), chapter 172, Sec. 51.

" Act of 1872 (35 and 36 Viet. c. 33) ; Statutes Revised, XVI. 934. For forms of
English and American nomination papers, see Appendix E.

15 The Australian Ballot System as embodied in the Legislation of Various Countries
(Boston, 1889), 75.

12



I7 g REGULATION BY LAW. [CHAP. IX.

States require a certain definite minimum number of signa-
tures, while others require a minimum percentage of the total
vote. For the nomination of candidates to be voted for at
large by the people of the entire State, the smallest require-
ment is 50, the largest, numerically, 3,000; the largest per-
centage of the total vote, five; the smallest one half of one per
cent. 16

For the nomination of candidates for district offices, there
is the widest diversity, ranging from 500 signatures for a city
office in New York State to 10 in Iowa; and from a number
equal to five per cent of the total vote of the district in Cali-
fornia to one per cent in Maine. 17

The law usually provides that each voter signing a nomina-
tion paper shall also write his place of residence, and that at
least one of the signers shall take oath that the statements
contained in the nomination paper are true. In addition, in
Massachusetts, the registrars of voters of the cities and towns
must certify that all the names upon each nomination paper
are the names of duly qualified voters, before the name of the

16 New York requires 3,000 signatures ; five States, viz., Maine, Massachusetts,
Kentucky, Illinois, and Wisconsin, 1,000; six, viz., Rhode Island, Maryland, Indi-
ana, Iowa, Kansas, and Colorado, 500; one, Idaho, 300; one, Oregon, 250; two,
North and South Dakota, 200; one, Washington, 100; and one, Mississippi, 50.
The Arkansas law provides that the number of signatures for State, district, or
county officers shall not be less than 50 nor more than 1,000 ; Pennsylvania requires
that the number of signatures shall be equal to at least one half of one per cent of
the largest total vote of the State ; Vermont, New Jersey, West Virginia, Ohio,
Minnesota, Missouri, and Wyoming one per cent, the requirement in the case of
the first three applying to any particular district as well as to the State ; Nevada
has a three-per-cent requirement with the significant proviso that the number of
signatures must not be less than three; while the California Act provides that the
number of signatures shall equal at least five per cent of the total vote of the State
or district.

17 For instance, for congressmen, Maryland requires 500 signatures ; Rhode
Island, 250; Indiana, 200. For county officers, Ohio requires 300 signatures; Col-
orado and North Dakota, 100 ; Idaho, Washington, and Oregon, 50 ; Iowa and
Kansas, 25; South Dakota, 20. Maine, Vermont, Massachusetts, New Jersey,
West Virginia, and Wisconsin require a number of signatures equal to at least one
per cent of the total vote of the district for which the candidate is nominated ;
Pennsylvania has a two-per-cent requirement ; Illinois requires two per cent, except
in the case of village officers, where the requirement is raised to five per cent; while
California requires five per cent in all cases.



SECT. 5.] FILING OF NOMINATION PAPERS.

candidate will be placed upon the official ballot. 18 In almost
all the States, it is made a penal offence for a person to sign
more than one nomination paper for the same office.

5. Filing of Nomination Papers. Nomination papers are
required to be filed with the same officers as the certificates
from the officers of caucuses and conventions already referred
to. In regard to the time of filing of both certificates and
papers, there is the widest diversity. Some States have a dif-
ferent requirement for nomination papers than for certificates,
a longer time being allowed for filing the former. Moreover,
many States have different dates for State, county, and muni-
cipal offices, which, when combined with different dates for
certificates and nomination papers, results in a confusion which
is absolutely unnecessary. 19 The last date for filing certifi-
cates and nomination papers varies from thirty-five to three
days before election, the earlier dates being required in the
case of officers to be voted for by the people of the State at
large, and the later dates for district and town officers. Nine-
teen States have a maximum limit for the filing of certificates
and papers, ranging from forty to one hundred days, sixty days
being the most common. 20

18 See Massachusetts Acts of 1893, chapter 417, Sec. 78.

19 Seven States, however, Maine, New Hampshire, Rhode Island, Delaware
West Virginia, Mississippi, and Michigan make no distinction between the differ-
ent grades of officers, but require all certificates and papers to be filed on or before
a certain specified day.

20 The New York Act is a fair sample of the unnecessary complexity of some of
the statutory provisions for the filing of certificates and papers ; the provisions are
as follows :

" The different certificates of nominations shall be filed within the following
periods before the election for which the nominations are made, to wit : Those
required to be filed with the secretary of State, if party nominations, at least 25 and
not more than 40 days ; if independent nominations, at least 20 and not more than
40 days ; those required to be filed with a county clerk or the board of police com-
missioners of the city of New York, or the board of election of the city of Brook-
lyn, if party nominations, at least 20, and not more than 30 days ; if independent
nominations, at least 15 and not more than 30 days; those required to be filed with
the city clerk of any other city, if party nominations, at least 10 and not more than
20 days, if independent nominations, at least 8 and not more than 20 days ; those
required to be filed with a town or village clerk, if party nominations, at least 6 and
not more than 20 days ; if independent nominations, at least 5 and not more than
20 days." (Chapter 680 of the Acts of 1892; chapter vi. of the General Laws



!8o REGULATION BY LAW. [CHAP. IX.

6. Withdrawal of Candidates. Most of the States have some
provision for the withdrawal of candidates. In Massachusetts
and Colorado nomination papers must be accompanied by the
written acceptance of the candidate. In Oregon a formal
acceptance is required in the case of convention nominations
as well as in the case of nomination papers. This is to pre-
vent the politicians of one party from putting up a prominent
man of the other party as an independent candidate without
his knowledge or consent, in order to weaken their "regular"
opponent and elect their own man. It is an eminently proper
provision, and ought to be universally adopted. Usually,
however, silence is construed as acceptance, and a formal
withdrawal is required, in order to prevent the name of a duly
nominated candidate from appearing on the official ballot. 21

In case of the death or withdrawal of a candidate, it is
usually provided that a new candidate may be nominated in
the same way as the original candidate was nominated. If,
however, the time is too short for calling a caucus or conven-
tion, in case no provision for the filling of vacancies has been
made by the original caucus or convention, the State or dis-
trict committee of the party is generally empowered to fill the
vacancy. 22

Sec. 59.) It will be observed that this act contains all three complications, viz.,
a different date for certificates of nomination and nomination papers, different
dates for the different grades of offices, and a maximum as well as a minimum
time limit.

21 In Massachusetts and Colorado, the withdrawal must be filed within three days
of the final date for filing certificates and papers. In Idaho, the withdrawal must
be filed at least 30 days before election ; in North Dakota, 25 days ; in Washington,
20 days ; in South Dakota, 3 to 15 days according to the office ; in Illinois, Iowa, and
Kansas, 8 to 15 days ; in Rhode Island, 12 days ; in New Jersey and Mississippi, 10
days ; and in New York, 8 to 10 days, except in the case of town and village officers.
In Oregon, a candidate can withdraw any time before election day. In case the
ballots have been printed, his name is cancelled on the ballot and " cards of instruc-
tion " announcing the fact of his withdrawal are circulated at the polls. (Act of
1891, Sec. 51 ; Election Laws, 1891, 31.)

23 In case the committee cannot be got together, the West Virginia Act provides
that the chairman of the committee shall have power to fill the vacancy. In Indi-
ana, unless a legal convention is called, the sole power of filling all vacancies is
given by the law to the chairman of the State or district committee. In case of
the death or withdrawal of a candidate after the ballots have been printed, in twelve
States, Delaware, West Virginia, Kentucky, Ohio, Michigan, Minnesota, Iowa,



SECT. 8.] PUBLICATION OF NOMINATIONS. iSi

7. Settlement of Disputes. In several of the States provision
is made for the settlement of disputes in regard to the validity
of nominations. Thus, in Massachusetts, 23 all objections to
the validity of nominations must be filed within seventy-two
hours of the close of the time for filing such nominations, and
all such cases are tried and decided by the Ballot Law Com-
mission, which is composed of three members appointed by
the governor from the different political parties. 24

8. Publication of Nominations. In most of the States there
is some provision for the publication of nominations by the
Secretary of State, or the county or town clerks, as the case
may be. It is usually provided that the list of nominees
shall be published in two papers, one of each of the two lead-
ing political parties in each county or district, or else posted

Kansas, North Dakota, Idaho, Wyoming, and Washington, provision is made
that " stickers " or " pasters " with the name of the new candidate may be furnished
to the election officers by the party committee. For example, see Wyoming act of
1891, Sec. loo; Election Laws (Cheyenne, 1891), 38.

23 Act of 1893, chapter 417, Sec. 85. Such controversies usually take the form
of a dispute as to which of two persons is the " regular " party candidate, or as to
the validity of a nomination paper.

24 In New York, objection must be filed within three days of the filing of the
certificate or nomination paper, and the decision of the officer with whom it is filed
is final, unless appeal is made to the ordinary courts of law. In New Jersey, the
objection must be filed within five days of the filing of the original nomination, and
the case is decided in the first instance by the city or town clerk, with the right of
appeal to the justice of the supreme court for the circuit. In Pennsylvania, such
disputes are decided by the Court of Common Pleas ; and, in Delaware, by the
clerk of the county, with an appeal to a board composed of the clerks of the three
counties sitting at the State capital. In Ohio, objection must be filed within five
days of the filing of the original nomination ; the dispute is settled in the first
instance by the officer with whom it is filed, with the right of appeal to the State
supervisor of elections. In Indiana, all disputes concerning the validity of nomi-
nations are settled by the " Board of Election Commissioners." In Illinois, disputes
in regard to the validity of nominations for officers to be voted for by the voters of
the State at large, are settled by a board composed of the secretary of state, the
State auditor, and the attorney-general ; in the case of candidates for county and
district officers, by a board composed of the county judge, the county clerk, and the
district-attorney ; and in the case of candidates for municipal officers, by a board
composed of the mayor, the president of the board of aldermen, and the city or
town clerk. The same system is found in Iowa and Kansas, with the exception
that the county auditor, and a member of the common council chosen by lot, are
substituted for the county judge and the president of the board of aldermen
respectively.



1 82 REGULATION BY LAW. [CHAP. IX.

in a certain number of public places. Some of the far western
States have very elaborate provisions on this subject. The
section of the Colorado act upon the subject is fifty-five lines
in length, and contains, among other things, a provision for
ascertaining the two papers which have the largest bona fide
circulation in the county or city. 26

In Oregon, there is a provision for a "register of nomina-
tions " open to public inspection, 28 and some provision for the
publicity of the names of candidates filed with the authorities
is found in the laws of all the States.

9. Penalties. The defacing, destroying, falsifying, or sup-
pression of a certificate of nomination, or of a nomination
paper, is, in most of the States, made a criminal offence. The
penalty varies greatly, the maximum ranging from $50 to
$1,000 fine, and from six months' to five years' imprisonment.
Penalties are also, as a rule, imposed on persons signing more
than one nomination paper, taking a false oath, or committing
other similar offences against good government.


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