The Constitutional Right to Candidacy
![handle is hein.journals/ukalr25 and id is 555 raw text is: 1977] 545
THE CONSTITUTIONAL RIGHT TO CANDIDACY
Nicole A. Gordon*
INTRODUCTION
While the right to vote is now recognized as a fundamental constitutional right,'
it remains unclear whether the correlative right to candidacy2 enjoys the same status.
Just as restrictions on the franchise have gradually been stricken,' similar restric-
tions on candidacy have also been invalidated, especially in recent years.4 The
restrictions on candidacy fall into two categories: those that are direct restraints
requiring certain personal qualifications as a prerequisite to candidacy, such as
property ownership, durational residency, age, and the like, and those that are
indirect restraints on candidacy because they regulate the electoral process, such
as filing fees and petition requirements.'
The courts have only recently become receptive to challenges to restrictions in
the latter group, and they have differed in their approaches when resolving the issues
presented by any kind of restriction on candidacy. There are, however, three basic
rationales that courts have thus far used to invalidate restrictions on candidacy.
The most prevalent justification has evolved from the protection of voters' rights
based on the equal protection clause of the fourteenth amendment.6 Another method
has been through identification of candidacy as a right protected by the first amend-
ment.7 The least common and most recently developed rationale for voiding re-
strictions on candidacy has been based on a theory that candidacy is itself a funda-
mental right,8 separate from the right to vote and from the first amendment. Al-
though the Supreme Court has never explicitly recognized candidacy as a funda-
A.B., Barnard College, 1974; J.D., Columbia Law School, 1977.
'Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (invalidation of poll tax as infringing
upon the fundamental right to vote); Kramer v. Union Free School Dist., 395 U.S. 621 (1969) (invalida-
tion of limitation of franchise in school district elections to property owners and parents of children in
public schools). See also Dunn v. Blumstein, 405 U.S. 330 (1972); Williams v. Rhodes, 393 U.S. 23,
30-31 (1968). Earlier recognition of the importance of the right to vote was evidenced in Wesberry v.
Sanders, 376 U.S. 1, 17 (1963) (No right is more precious . . . . Other rights, even the most basic, are
illusory if the right to vote is undermined.), and Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)
(Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially
since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic
civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and
meticulously scrutinized.). For a discussion of the right to vote, see Comment, Durational Residence
Requirements for Candidates, 40 U. CHi. L. REv. 357, 358-65 (1973).
'The right to candidacy is actually a right of access to the ballot. For a discussion of whether this
right of access may be satisfied through a write-in space on the ballot alone see note 169 and accompanying
text infra.
'E.g., Dunn v. Blumstein, 405 U.S. 330 (1972) (durational residency requirement); Cipriano v.
City of Houma, 395 U.S. 701 (1969) (property ownership requirement); Harper v. Virginia Bd. of
Elections, 383 U.S. 663 (1966) (poll tax requirement).
'E.g., Lubin v. Panish, 415 U.S. 709 (1974) (filing fee); Turner v. Fouche, 396 U.S. 346 (1970)
(property ownership requirement for appointment to county school board).
' For a survey of the existing types of restrictions on candidacy and their prevalence see Developments
in the Law-Elections, 88 HARV. L. REv. 1111, 1121-51, 1217-33 (1975).
'See, e.g., Bullock v. Carter, 405 U.S. 134 (1972); Williams v. Rhodes, 393 U.S. 23 (1968). See also
text at notes 98-141 infra.
7See, e.g., Mancuso v. Taft, 476 F.2d 187 (Ist Cir. 1973); Fort v. Civil Serv. Comm'n, 61 Cal. 2d
331, 392 P.2d 385, 38 Cal. Rptr. 625 (1964) (en bane); De Stefano v. Wilson, 96 N.J. Super. 592,
233 A.2d 682 (1967); Minielly v. State, 242 Ore. 490, 411 P.2d 69 (1966) (en bane). See also text
at notes 34-87 infra.
. 'See, e.g., Zeilenga v. Nelson, 4 Cal. 3d 716, 484 P.2d 578, 94 Cal. Rptr. 602 (1971). See text at
notes 142-62 infra.](ViewImageLocal?handle=hein.journals/ukalr25&div=25&collection=&method=preview&ext=.png&size=3)
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The Constitutional Right to Candidacy
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