The harm to voters when candidates drop out, but kept on ballots

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[Editor's note: This story originally was published by Real Clear Wire.]

By Todd Carney
Real Clear Wire

While redistricting and voter ID get more attention in fights over election law, ballot access is often overlooked. Most people assume that the issue of ballot access concerns a candidate’s struggle to get on a ballot – but in this election cycle, in at least three high-profile races, candidates have had trouble getting off, even after dropping out. The inability of candidates to get off the ballot deprives voters of accurate choices, which can change the outcome of elections.

In 2002, for example, incumbent Democratic senator Robert Torricelli faced ethical challenges and lagging poll numbers. Democrats pressured Torricelli to drop out so that popular former senator Frank Lautenberg could replace him on the ballot. Republicans sued to stop Torricelli’s withdrawal, but New Jersey’s Supreme Court upheld the move.

This year, Pennsylvania saw two gubernatorial candidates for the Republican nomination, Jake Corman and Melissa Hart, drop out but remain on the ballot. Corman received about 2 percent of the vote and Hart received 4 percent. Hart gained more support as a withdrawn candidate in the election than she did from polls commissioned before she quit. The winner of the nomination, Doug Mastriano, won by 23 percent – but it’s easy to imagine a race hinging on the combined 6 percent of the vote that Corman and Hart garnered.

Similarly, in the Arizona gubernatorial GOP primary, Matt Salmon dropped out about a month before the primary and endorsed Karrin Taylor Robson, but Salmon remained on the ballot. Salmon ultimately received 3.7 percent of the vote. Kari Lake beat Robson for the nomination by 4.9 percent. While Salmon’s percentage of the vote was not enough to swing the race by itself, the margin was awfully close, illustrating how ballot access can affect a close race.

In the upcoming Wisconsin gubernatorial election, conservative independent candidate Joan Beglinger recently dropped out and endorsed Republican nominee Tim Michels. Though the election is two months away, Beglinger will remain on the ballot. Last month, a poll showed Democratic incumbent Tony Evers leading by 2 percent over Michels, with Beglinger receiving 7 percent of the vote. Based on that poll, if the election occurred today, Beglinger’s presence on the ballot could easily sway the outcome.

In Pennsylvania and Arizona, thousands of votes were cast for candidates who were no longer running. While some voters might have cast their ballots in protest, it is likely that many others simply did not realize that their candidate was no longer in the race. Thousands of voters in Wisconsin could make the same mistake.

Additionally, in Arizona and Wisconsin, the withdrawing candidate dropped out weeks before the election. That should be plenty of time to change the ballot. But Arizona had already sent out mail-in ballots. Wisconsin’s inability to remove names from the ballot is puzzling because early voting does not start in that state until October 25.

Technology could easily allow for states to change ballots, especially when notice is given weeks in advance.

Late dropouts offer policymakers a reason to curtail mail-in and early voting. If someone votes for a candidate and the candidate drops out after they cast their vote, the voter will likely regret his choice.

Thus, many support setting aggressive deadlines to prevent withdrawing from the ballot too close to an election. They believe that without such limits, political parties will play partisan “tricks,” as with the 2002 New Jersey senate race. On the other hand, Torricelli’s ability to withdraw late in the race proved good for New Jersey voters. Instead of leaving voters with a scandal-plagued incumbent as one of the choices, voters got to choose from two well-qualified candidates.

States should work toward a solution to provide candidates more flexibility to withdraw. While states need to enforce reasonable limits on how late in a race a candidate may withdraw, one to two weeks before Election Day should provide enough time. Though it would require greater administrative action, states need to make these changes to ensure that voters are presented with ballots that accurately reflect the candidates currently running. The outcome of an election should not be decided by votes wasted on candidates who have already dropped out.

Todd Carney is a lawyer and frequent contributor to RealClearPolitics. He earned his juris doctorate from Harvard Law School.

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