Candidates for public offices are nominated by political parties. Candidate nomination is a privilege given to a political party[i]. However, the right to nominate a candidate is regulated by the legislature. It is not a constitutional right[ii]. When a local committee fails to nominate candidates for the local office, the nomination will be conducted by the state executive committee[iii].
Generally, the nomination of candidates for public office is regulated and controlled by statutory provisions. Some times election regulations are imposed by a state as a necessity. However such regulations cannot be unconstitutional or erroneous. Any statute that imposes an unreasonable restriction on the nature of petition like the mode and the manner of obtaining signature will be declared invalid. However, a statute that imposes different time periods for obtaining the signature for independent candidates and party candidates will not be declared invalid on the ground of unreasonableness. Similarly, statutes imposing restrictions on the number of signatures to be obtained by a candidate from a district have not been declared unconstitutional.
In the absence of a statutory provision, the process of nominating candidates are regulated by party conventions and party rules. Thus, a party committee authorized by a statute can nominate a candidate for election regulated by party convention and party rules.
The statutory requirements as to the nomination of candidates include:
- notice on nomination procedure must be served to the committee members;
- nomination must be supported by a majority of selection committee members;
- petition, certificate, and nomination application must be filed with the officer specified in the election statute; and
- certificate and nomination application must be filed within the time stipulated in the election statute.
The qualification for nomination as a candidate includes:
- s/he must be a qualified voter[iv];
- s/he must be eligible to hold the office;
- s/he must make an oath that they were not engaged in any action to overthrow the government by force or violence; and
- s/he was not a member of an organization that engage in anti-constitutional and anti social activities;
- s/he must be affiliated with a political party and must be a political party member[v];
- s/he must have registered with the party for two years[vi]; and
- s/he must have residence in the place where s/he stands for election for a specific period of time preceding election.
However, the condition on registration with a party is not mandatory unless it is mandated by a statute.
A nominated candidate must prepare and file a formal nomination acceptance certificate[vii]. Failure to file such acceptance certificate will make the nomination void. However, any clerical error from filing agencies will be excused if there is no fault from the candidate in filing the acceptance certificate[viii].
A candidate must file the nomination certificate with the prescribed filing fee. To fulfill the filing requirements, the filing fee must be paid at the time when the certificate is filed[ix]. If a candidate makes the filing fee by check and if the check is returned for insufficient funds after the filing date, the certificate will be treated as one filed after the filing date. Thus a filing fee paid by check payment is deemed complete when the check is honored. A check honored after the filing date will not validate the nomination certificate[x].
However, the election statutes have prescribed a last date for filing nomination certificate by a candidate. Last date refers to the final date before which the certificates must be filed by a candidate. The filing date also means the date within which the signatures, as prescribed by the statute, should be obtained in the certificate[xi]. For example, if a statute lays down the provision that a candidate must obtain 1,000 signatures within eight days, the period of eight days falls as the deadline for the candidate.
An individual who is nominated for election can refuse to compete in the election[xii]. S/he can seek withdrawal of a nomination at his/her option. Any candidate who opts to withdraw from the election must file a properly executed withdrawal certificate[xiii]. When a statute lays down the time for filing the withdrawal, it must be filed within the stipulated time. The Secretary of State cannot extend the time for filing the withdrawal if the deadline is made mandatory by a statue. If the statute permits, the election filing authority can accept a delayed withdrawal[xiv]. Statutes generally permit a candidate to file a motion to set aside his/her withdrawal on the grounds of coercion and duress[xv].
Most of the time, a defective nomination certificate is treated as invalid. Thus a candidate who files an invalid nomination application will be removed from the ballot. If the defects are not fatal, then the candidate can amend the nomination certificate. The amendment must be made within the time period that is permitted by the election statute.
However no person can be nominated for two offices[xvi]. The provisions prohibiting dual office holding contained in the constitution will not interfere with the election laws. In some jurisdictions the constitutional prohibitions against dual office holding do not prohibit an individual from being nominated for more than one office, unless there is a specific provision to the contrary[xvii].
Even after nomination, the seat to which the candidates are nominated will remain vacant in the following circumstances:
- when the person nominated does not accept the nomination;
- when the person nominated is ineligible to accept the nomination;
- when a candidate dies prior to the election;
- when a candidate who is nominated files a withdrawal;
- when the political party fails to make the nomination in situations where one candidate dies and the other withdraws;
- when the candidate files a defective nomination certificate; and
- When the candidate fails to file the nomination acceptance within the time period prescribed.
However, when a court declares the election void, then it will be presumed that there has been no vacancy to be filled. Hence there was no nomination.
Candidates who are not supported by a political party can become independent candidates for public office by filing an independent nomination certificate. The nomination certificate must be signed by a specified number of voters.
The advantages of candidate nomination are:
- provides an active awareness to a nominee;
- helps to select those persons who are capable to handle the job;
- allows candidates to study a position to which s/he is nominated for before making their choice; and
- helps to promote moderate candidates in two party systems.
The disadvantages of candidate nomination are that they:
- limit the choices available to the voters at the time of voting;
- result in voter disenfranchisement and obscure participation; and
- result in the election of deal-making individuals.
[i] Mosley v. Board of Comm’rs, 200 Ind. 515 (Ind. 1929).
[ii] State ex rel. Buttz v. Marion Circuit Court, 225 Ind. 7 (Ind. 1947).
[iii] Bolland v. Commissioners of Elections, 59 A.D.2d 824 (N.Y. App. Div. 4th Dep’t 1977).
[iv] County Election Bd. Of Coal Cty. v. Robinson, 1960 OK 140 (Okla. 1960).
[v] Edwards v. Jordan, 183 Cal. 791 (Cal. 1920).
[vi] Crowells v. Petersen, 118 So. 2d 539 (Fla. 1960).
[vii] Gentner v. Albany County Bd. of Elections, 309 A.D.2d 962 (N.Y. App. Div. 3d Dep’t 2003).
[viii] Matter of Davis v. Walsh, 2008 NY Slip Op 28349, 1 (N.Y. Sup. Ct. 2008).
[ix] Munsell v. Hennegan, 182 Md. 15 (Md. 1943).
[x] Jacobs v. Yates, 342 Ark. 243 (Ark. 2000).
[xi] Hagelin v. Graves, 804 F. Supp. 1377 (D. Kan. 1992).
[xii] Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).
[xiii] O’Connor v. Smithers, 45 Colo. 23 (Colo. 1909).
[xiv] Oliviero v. Diven, 908 A.2d 933 (Pa. Commw. Ct. 2006).
[xv] Ryan v. Holm, 236 Minn. 189 (Minn. 1952).
[xvi] Westerman v. Mims, 111 Tex. 29 (Tex. 1920).
[xvii] Kelly v. Reed, 76 Nev. 389 (Nev. 1960).