Court Removes Ballot Obstacle For Alternative Parties In South Carolina

March 1, 2010 4:30 pm

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Order Issued After ACLU Challenge

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COLUMBIA, SC – A federal court in South Carolina today blocked implementation of the state’s requirement that political candidates formally notify the state elections commission, in advance of the primary election, of each party that might choose to nominate them and whose nomination they may seek. The court issued the injunction after the American Civil Liberties Union filed a lawsuit charging that the requirement violates the preclearance provisions of Section 5 of the Voting Rights Act, and that it severely impairs alternative political parties’ ability to get their candidates on the ballot in violation of the free speech protections of U.S. Constitution.

“The evidence clearly supports the court’s conclusion that the state failed to comply with the Voting Rights Act,” said Laughlin McDonald, Director of the ACLU Voting Rights Project. “Many alternative parties do not choose a candidate until after the major parties have their primaries. Requiring candidates to submit their intention to run for each party before the primaries makes it virtually impossible for alternative parties to have the candidate of their choice on the ballot.”

South Carolina is one of only a handful of states that permit fusion voting, allowing multiple political parties to nominate the same candidate. However, requiring Statement of Intention of Candidacy forms prior to the primaries has the practical effect of barring electoral fusion because alternative parties, which often choose to cross-nominate the winner of a major political party’s primary, cannot know who the major party candidate in the general election will be before the primaries actually take place, and cannot put a candidate who hasn’t filed multiple intention forms on its ballot.

The South Carolina State Elections Commission did not require multiple Statement of Intention of Candidacy forms until April 2008. Prior to that date, only one form was required stating a candidate’s intention to run for a particular party, but candidates could run for any other party that wished to cross-nominate them. The ACLU charges that the change is unlawful because South Carolina has a history of discrimination in its voting procedures, and Section 5 of the Voting Rights Act requires that all changes the state wishes to implement must first be precleared by the federal government.

The ACLU also charges that the requirement imposes an unjustified burden on the First Amendment’s free speech and association rights of candidates as well as political parties and voters to select the preferred candidates of their choice.

“South Carolina’s requirement rejects the First Amendment’s fundamental protections and effectively blocks fusion voting in the state,” said Bryan Sells, staff attorney with the ACLU Voting Rights Project. “Today’s order by the federal court protects the democratic process and the voters of South Carolina.”

Attorneys on the case are McDonald and Sells of the ACLU Voting Rights Project.

The U. S. District Court for the District of South Carolina’s ruling in the case, Gray et al v. South Carolina State Election Commission et al, is available at:

The ACLU’s complaint in the case is available at:

More information on the work of the ACLU Voting Rights Project is available at:

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