By Patrick Riley
Introduction
In the First Extraordinary Session of 2024, the Louisiana State Legislature passed House Bill 17, which will fundamentally transform the state’s electoral process by implementing a “closed primary system” effective on January 1, 2026.[1] The law replaces Louisiana’s “jungle primary” system, where all candidates appeared on the same ballot regardless of party affiliation, with a system that allows to compete against members of their own party in primaries, with only one candidate per party advancing to the general election.[2] After passing through the House of Representatives largely intact, the Senate amended the bill to limit its scope, applying closed primaries only to Congressional, U.S. Senate, Public Service Commission, and Board of Elementary and Secondary Education races. Governor Jeff Landry signed the legislation into law as Act 1 of the First Extraordinary Session of 2024 with implementation scheduled for January 1, 2026.[3]
I. Louisiana’s New Statutory Scheme
Act 1 limits ballot access to candidates by increasing the monetary costs of the ballot, while limiting the ability of voters to vote for the candidate of their choice, particularly those who align with minority parties.[4] Presently, Louisiana has 828,743 registered voters who are not affiliated with the Republican or Democratic parties.[5] Accordingly, Act 1 will cause more than 27% of the electorate to not have a primary election for their affiliated political party, even if their party is able to field multiple candidates.[6] These interlocking provisions create a disenfranchised subset of voters who, despite maintaining registration with their preferred party, are effectively silenced in the primary process. Voters of the minority parties that are excluded will be unable to vote for a candidate from their party unless that candidate meets the signature nominating requirements. The new law permits unaffiliated voters, or those not registered with any party holding a primary election, to participate in one closed party primary of their choosing.[7]
The new electoral scheme designed in Act 1 requires significant revisions of Louisiana’s Election Code. Act 1 will restrict minority party access, voters’ options, and candidate’s rights of ballot access.[8] La. R.S. 18:410.3 will provide:
Purpose and nature of party primary elections For general elections political parties shall make all nominations of candidates for party primary office by direct primary elections held pursuant to this Part. In party primary elections, each voter voting in such election may vote only for a candidate who is affiliated with the same party as the voter. Voters not affiliated with a political party may vote in a recognized party primary, but such voter may vote only in one recognized party primary.
This provision limits the options of voters of non-traditionally powerful parties to select the candidate of their choice. While Louisiana officially recognizes five political parties: the Green, Democratic, Independent, Libertarian, and Republican; the closed primary system established under La. R.S. 18:410 et seq. applies only to “recognized political parties” that meet specific statutory requirements for major party status.[9]
Act 1 does not only restrict third-party voters’ options once they arrive at the polls, it may also burden a third-party candidate’s appearance on the ballot.[10] Combining existing law with the new party primary specific regulations, La. R.S. 18:441 will limit recognized political parties to either (a) those that, in prior presidential election, had a candidate who received at least 5% of the vote, or (b) those that, in a prior state-wide office election, received 5% of the vote.[11] If the 5% threshold limit was not reached in a prior election, then the political party will not be recognized. The practical effect of this provision will make it harder for new or smaller political parties to gain recognition. While §441(B) establishes a pathway for political party recognition through gathering 1,000 signatures, the provision creates a paradoxical barrier: it seemingly requires signatures from individuals already registered with a party that the state has not yet officially recognized. This circular requirement raises a fundamental question whether an emerging political party can register members when the state’s recognition of that party is a prerequisite for such registration.
Based on current voter registrations and the 5% threshold established in §441(C), only the Republican and Democratic parties currently qualify for recognized party primary status.[12] Third-party candidates seeking offices subject to the closed primary system can qualify for the general election ballot only through nominating petitions, which may only be signed by registered voters not affiliated with a recognized political party that holds a primary.[13] Consequently, while the Green, Libertarian, and Independent parties maintain recognition under §441(B), they presently fail to meet the higher threshold required by §441(C), making them ineligible to conduct party primaries under La. R.S. 18:410, et seq.
Act 1 establishes a direct pathway to the general election ballot for candidates outside the party primary system through La. R.S. 18:410.8, but with substantial limitations.[14] This provision restricts nominating petition signatures to voters not affiliated with a “recognized political party” (as defined by the 5% threshold in 18:410 et seq.).[15] This effectively prohibits registered Republicans and Democrats from supporting nominating petitions for unaffiliated or third-party candidates—creating a significant barrier for minority parties. These smaller political organizations face a double bind: if they cannot meet the 5% voter registration threshold required by La. R.S. 18:441(C)(1), they are also barred from gathering petition signatures from registered voters of major parties who might otherwise support their candidacy.[16]
Collectively, La. R.S. 18:410.8 and La. R.S. 18:465 restrict the pool of potential petition signatories for party primary offices to voters not affiliated with parties that hold primaries.[17] La. R.S. 18:465 further establishes specific signature thresholds that vary according to the office being sought, creating a tiered system of requirements for ballot access.[18]
II. Constitutional Implications
The Supreme Court has reviewed several cases challenging ballot access restrictions for minority parties. In Anderson v. Celebrezze, the Court stated that while “resolving constitutional challenges to a State’s election laws, a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule.”[19] The right to vote is “heavily burdened” when minority parties are “clamoring for a place on the ballot.”[20] The Court, however, has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot.[21]
Similarly, Munro v. Socialist Workers Party involved state regulations excluding candidates from a “ballot-connected campaign platform.”[22] The Supreme Court noted that “such restrictions raise concerns of constitutional dimension, the exclusion of candidates burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day.”[23] The Louisiana statutory changes could face First Amendment scrutiny for prohibiting Republican and Democratic voters from signing petitions, while also potentially raising Equal Protection concerns under the Fourteenth Amendment if further expanded.
A. Louisiana’s Act 1 and the First Amendment
The Supreme Court has rarely examined the First Amendment implications of nominating petition statutes like Louisiana’s since most states verify primary voting conflicts after petition submission, rather than preemptively barring certain voters from signing.[24] The Supreme Court upheld Georgia’s ballot access system in Jenness v. Fortson, specifically noting that “a petition signer need not declare an intention to vote for that candidate in the election. Both individuals who previously voted in party primaries and those who weren’t registered during the last election remain fully eligible to sign nominating petitions.” An often litigated Georgia scheme was upheld by the Supreme Court in Jenness v. Fortson, in which the Court stated that the “signer of a petition is not required to state that he intends to vote for that candidate at the election. A person who has previously voted in a party primary is fully eligible to sign a petition, and so, on the other hand is a person who was not even registered at the time of the previous election.”[25] If a signer of a petition is not required to state their intended vote, certainly Louisiana may not preemptively refuse a voter the ability to support a candidate based on party affiliation.
In both Storer v. Brown and American Party of Texas v. White, the Supreme Court upheld ballot access restrictions that prevented voters from voting both participating in a party primary and signing a nominating petition for a candidate seeking the same office.[26] Storer examined a statute that “requires that none of such signatures be those of persons who voted at the primary.”[27] Similarly, in White, the statute prohibited “a person’s signing a supplemental petition who has voted in a primary election or participated in a party convention.”[28] Both of these cases, however, concerned restrictions that applied after the voter participated in a primary, rather than preemptively as Act 1 does.
A district court in Arizona applied these cases in Campbell v. Hull, where it examined a statute that barred “voters affiliated with qualified parties, whether or not they voted in a presidential preference election, from signing a nominating petition for a candidate affiliated with a non-qualified party.”[29] Addressing the Arizona statute, which resembled Louisiana’s, the court explained, “Defendant alleges that the party affiliated voter restriction is no more onerous than restrictions upheld in Storer and White. However, both Storer and White allowed voters to choose whether to participate in the partisan or nonpartisan nominating process. In contrast, A.R.S. § 16–341 locks voters into partisan and nonpartisan categories and denies major party voters the choice of alternatives that were available in Storer and White.” Louisiana’s HB 17 similarly locks voters into partisan categories.
The Campbell court did not shy away from Louisiana’s poor ballot access record. Regarding the former Louisiana statute, the court held that, “Arizona may not require voters to change their party affiliation as a condition of nominating independent or minor party candidates.”[30] Act 1 will have this same effect, as Louisiana voters will need to change their party affiliation before they can support a nominating petition for differently-affiliated candidate.[31] The Campbell court further stated, “Historically in Louisiana and Arizona this restriction ‘freezes’ the status quo by effectively barring all candidates for national office other than those of the major parties.”[32] Campbell observed that Louisiana had not maintained this unconstitutional restriction since 1949.[33] With Act 1 taking effect January 1, 2026, however, Louisiana will reimpose an unconstitutional limitation on rights of association, petition, and voter expression.
In an era of advanced voting technology, and considering the Campbell decision, Act 1 raises an important question: What “state interest of compelling importance” could Louisiana demonstrate in 2026, beyond what Arizona failed to establish in 1990, that would justify prohibiting Republican and Democratic voters from signing a nominating petition?[34] Notably, Louisiana permits voter registration until twenty days before an election, while nominating petition signatures must be completed one hundred twenty days before the qualifying period even begins for party primary offices.[35]
B. Any Expansion of the Scheme May Violate the Fourteenth Amendment.[36]
In Jenness v. Fortson and American Party of Texas v. White, the Supreme Court upheld regulations requiring candidates to receive a certain percentage of support through nominating petitions.[37] These decisions recognized a legitimate state interest in limiting ballot options to candidates with a feasibility of success.[38] The Court cautioned that the requirements in White, however, “may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot.”[39]
In Swanson v. Worley, the Eleventh Circuit noted that allowing all eligible voters to sign nominating petitions mitigated the Fourteenth Amendment concerns.[40] This same factor was highlighted in Jenness as supporting the constitutionality of Georgia’s election law.[41] HB 17 has no such mitigating factor by locking voters into predetermined categories which limit their ability to select alternatives.
Despite these ballot changes not taking effect until 2026, and seemingly undeterred by constitutional concerns, the Louisiana legislature considered expanding these restrictions to nearly all offices during the 2024 Regular Session.[42] While this bill did not advance, the trajectory is concerning.[43] Expanding the party primary system to even lower-level offices could create a mathematical near-impossibility for third-party and independent candidates seeking ballot access.
III.Conclusion
The Supreme Court has never reviewed a statutory scheme exactly like Louisiana’s Act 1, notably because the Campbell defendants did not appeal the district court’s ruling striking down Arizona’s similar restriction.[44] This is significant because First Amendment protections of the right to petition the government do not disappear when citizens join a political party. Act 1’s restrictive provisions demand thorough judicial review before taking effect, rather than the expanded applicability recently considered by the legislature. The scheme presents substantial constitutional concerns that warrant litigation prior to implementation. This would ensure that Republican and Democratic voters, as well as third-party candidates, retain their full rights to ballot access and political expression without being subjected to arbitrary restrictions that lack compelling state interest.
[1] H.B. 17, Act. 1, 1st Spec. Sess., Act. No. 1 (La. 2024), [approved Jan. 22, 2024, eff. Jan. 1, 2026].
[2] Id.
[3] Id.
[4] Id.
[5] Registration Statistics – Statewide, Louisiana Secretary of State, https://www.sos.la.gov/ElectionsAndVoting/Pages/RegistrationStatisticsStatewide.aspx (last visited Jan 26, 2025).
[6] Id.
[7] La. R.S. 18:441; La. R.S. 18:410.8.
[8] H.B. 17, Act. 1, 1st Spec. Sess., Act. No. 1 (La. 2024), [approved Jan. 22, 2024, eff. Jan. 1, 2026].
[9] Registration Statistics – Statewide, Louisiana Secretary of State, https://www.sos.la.gov/ElectionsAndVoting/Pages/RegistrationStatisticsStatewide.aspx (last visited Jan 26, 2025).
[10] H.B. 17, Act. 1, 1st Spec. Sess., Act. No. 1 (La. 2024), [approved Jan. 22, 2024, eff. Jan. 1, 2026].
[11] La. R.S. 18:441 states, in pertinent part:
A. A political party shall be recognized in this state pursuant to the provisions of Subsection B or C of this Section.
B.(1) A political party shall be recognized if ninety days prior to the opening of the qualifying period for any election at least one thousand registered voters in the state are registered as being affiliated with such political party; such political party has filed a notarized registration statement as described in Paragraph (2) of this Subsection with the secretary of state; and the political party has paid a registration fee of one thousand dollars to the secretary of state upon filing the registration statement.…
C.(1)
(a)A political party shall be recognized if any one candidate of the political party for presidential elector received at least five percent of the votes cast in this state for presidential electors in the last presidential election, or if any one candidate of the political party for any statewide office received at least five percent of the votes cast for the statewide office in any primary or general election.
(b) Only political parties that are recognized in accordance with Subparagraph (a) of this Paragraph shall be entitled to participate in party primary elections held in accordance with this Code.
[12] Id.
[13] La. R.S. 18:410, et. seq.
[14] La. R.S. 18:410.8.
[15] Id.:
A. Any person who desires to become a candidate in a general election for a party primary office and who is not registered as being affiliated with a recognized political party shall file his notice of candidacy, which shall be accompanied by a nominating petition as provided in R.S. 18:465, with the appropriate qualifying official during the qualifying period established for the party primary election. The number of signatures required on such a nominating petition shall be as set forth in R.S. 18:465.
B. A person filing a notice of candidacy as provided in Subsection A of this Section may be nominated only by persons who are qualified to vote on the office he seeks, who sign a nominating petition for him, and who are not affiliated with a recognized political party. The registrar of voters shall reject any signature on a nominating petition not in compliance with this Subsection.
[16] La. R.S. 18:441(C); La. R.S. 18:410.8.
[17] La. R.S. 18:465 provides:
A. Time and place of filing. A nominating petition shall be filed with the official with whom the candidate qualifies and shall accompany the notice of candidacy.
B. Method of nominating candidates. A person may only be nominated as a candidate in a primary election by persons who are registered to vote on the office he seeks who sign a nominating petition for him no more than one hundred twenty days before the qualifying period opens for candidates in the primary election. In addition to his signature, each voter who signs a nominating petition shall date his signature and shall provide the ward and precinct in which he is registered to vote, his residence address, including the municipal number, the apartment number, if any, the rural route and box number, or any other physical description that will identify his actual place of residence. Once a voter has signed a nominating petition, he may not withdraw the nomination….
C. Number of signatures required. The number of qualified voters who must timely sign a nominating petition is:
(1) For a candidate for an office voted on throughout the state–five thousand, not less than five hundred of which shall be from each of the congressional districts into which the state is divided.
(2) For a candidate for membership on the Public Service Commission–one thousand from within that district.
(3) For a candidate for any of the following offices:
(a) Louisiana Supreme Court Justice–one thousand from within that district.
(b) United States Representatives in Congress–one thousand from within that district.
(c) Member of the State Board of Elementary and Secondary Education–one thousand from within that district.
(d) Judge of a court of appeal–five hundred from within that district.
(e) Any officer elected from throughout a judicial district–five hundred from within the district.
(f) Louisiana Senate–five hundred from within the senatorial district.
(g) Louisiana House of Representatives–four hundred from within the representative district.
(h) Any officer elected from throughout a parish–four hundred.
(i) Any officer elected from throughout a ward–one hundred for member of a parish governing authority and for member of a parish or city school board and one hundred for any other.
[18] La. R.S. 18:465.
[19] Anderson v. Celebrezze, 460 U.S. 780 (1983).
[20] Id.
[21] Bullock v. Carter, 405 U.S. 134 (1972).
[22] Munro v. Socialist Workers Party, 479 U.S. 189, 198 (1986).
[23] Id. at 199.
[24] In Campbell v. Hull, 73 F. Supp. 2d 1081, 1090 (D. Ariz. 1999), the court noted:
The court is unaware of any other statute in any other state that prohibits voters affiliated with major parties from signing a nomination petition for an independent party’s candidate. Neither Plaintiffs nor Defendant have submitted any case authority on any similar statute. In fact, Plaintiff alleges that in this country’s entire history, only one other state has ever had such a statute. From 1918 to 1949, Louisiana prohibited voters registered as members of the Republican or Democratic parties from signing petitions to place an independent or third-party candidate on its ballot. During that time period, no independent or third-party statewide or federal candidate, including a 1924 Progressive Party candidate who appeared on the ballot in every other state, was able to get a place on the Louisiana ballot. (Pls.’ Mot. at 11.) Moreover, Louisiana’s ballot access laws were far less restrictive than Arizona’s current law in two ways: Louisiana allowed independent candidates until September to file nominating petitions while Arizona’s deadline is June 27, and Arizona requires approximately 7,813 signatures while Louisiana only required 1,000. Defendant argues that Louisiana’s statute from nearly 50 years ago is irrelevant. Plaintiffs assert that, given the dismal historical record of a similar statute, they should not have to wait through numerous election cycles in Arizona before their constitutional rights are vindicated.
[25] Jenness v. Fortson, 403 U.S. 431, 439 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir. 1981).
[26] Storer v. Brown, 415 U.S. 724 (1971); American Party of Texas v. White, 415 U.S. 767 (1974) (referring to the most recent election’s primary).
[27] Storer v. Brown, 415 U.S. 724 (1971).
[28] American Party of Texas v. White, 415 U.S. 767, 768 (1974).
[29] Campbell v. Hull, 73 F. Supp. 2d 1081 (D. Ariz. 1999).
[30] Id. at 1092.
[31] La. R.S. 18:410.8.
[32] Campbell v. Hull, 73 F. Supp. 2d 1081, 1092 (D. Ariz. 1999).
[33] Id.
[34] Id. at 1086.
[35] La. R.S. 18:135; La. R.S. 18:410.5.
[36] U.S. Const. amend. XIV.
[37] Jenness v. Fortson, 403 U.S. 431 (1971); American Party of Texas v. White, 415 U.S. 767 (1974).
[38] Id.
[39] American Party of Texas v. White, 415 U.S. 767, 783 (1974).
[40] Swanson v. Worley, 490 F.3d 894, 904 (11th Cir. 2007).
[41] Jenness v. Fortson, 403 U.S. 431 (1971).
[42] H.B. 595, Reg. Sess., (La. 2024).
[43] Id.
[44] Campbell v. Hull, 73 F. Supp. 2d 1081 1092 (D. Ariz. 1999).
