In Storer v. Brown, 415 U.S. 724 (1974), the Supreme Court upheld California’s “sore loser” statute, which banned ballot access in the general election for independent candidates who either voted in the preceding primary election or were registered with a political party within the year preceding the primary election.

The Court found California’s statute furthered the state’s compelling interest in political stability and did not violate the First Amendment freedom of candidates to associate with the party of their choosing.

California law banned ballot access for recently-affiliated independent candidates

The litigation commenced when two congressional candidates challenged the law’s disaffiliation requirement. Under the statute, Thomas Tone Storer and Laurence H. Frommhagen were forbidden from appearing on the ballot as independents in their run for Congress.

A three-judge federal district court panel ruled that California’s election code served a “sufficiently important state interest.”

Court said law did not violate First Amendment

Writing for the six-member majority of the Court that upheld the disaffiliation provision as applied to Storer and Frommhagen, Justice Byron R. White reasoned that although states could not impose unnecessary and severely restrictive barriers on independents, states were permitted to protect the integrity of the ballot by requiring independent candidates to demonstrate substantial support before being placed on the ballot.

The disaffiliation requirement also protected the integrity of the ballot by ensuring that primary losers were not able to use the general election to continue a political fight they had already lost.

Dissenting justices thought law placed impossible burden on independent candidates

Writing in dissent, Justice William J. Brennan Jr., joined by Justice William O. Douglas and Justice Thurgood Marshall, noted that the statute in question placed enormous burdens on independent candidates and their supporters, because the primary was just five months before the general election, which would require any major-party candidate seeking to run as an independent to make that choice a full seventeen months before the general election.

This situation is an “impossible burden,” Justice Brennan claimed, because one would not know who the major parties’ nominees would be or what issues would be on the agenda that far out.

Court has upheld states' regulatory ballot access regime despite challenges 

Storer v. Brown is one of many ballot access cases from the Burger and Rehnquist Courts that upheld a state’s regulatory regime as applied to independents and minor parties.

The two major political parties, with Supreme Court approval, have made it increasingly difficult for independents to obtain ballot access and, if successful, to stay on the ballot for future elections.

However, in Anderson v. Celebrezze (1983) the Court did rule in favor of independent presidential candidate John Anderson and allow him on the ballot in many states even though he had already run as a Republican.

This article was originally published in 2009. Kyle L. Kreider is a Professor of Political Science at Wilkes University, where he teaches the Constitutional Law classes. His most recent book is Voting Rights in America: A Reference Handbook, co-authored with Richard A. Glenn (ABC-CLIO, 2020).

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