Some commentators about politics and election law have recently expressed the opinion that it would be illegitimate to change the Virginia presidential primary ballot access law between now and the March 6, 2012 presidential primary in that state. They sometimes say it is immoral to “change the rules in the middle of the game.” For example, see this commentary by Jay Sekulow.

These commentators don’t seem to know that in every presidential election starting in 1968, courts have “changed the rules” and permitted candidates to get on the November ballot even though those candidates didn’t “play by the rules.” These commentators don’t understand how bad the U.S. ballot access laws are. In 48 of the 50 states, courts have invalidated at least one ballot access law, during the period starting in 1968.

In 1968, George Wallace would not have been on the November ballot if he had not won constitutional lawsuits against Alaska, Idaho, and Ohio. Also in 1968, courts put the presidential nominees of the Communist Party on the ballot in Minnesota, the Socialist Workers Party on the ballot in New York, and the Freedom and Peace Party on the ballot in New York.

In 1972, courts put the presidential nominees of the Communist Party on the ballot in the District of Columbia, Illinois, Massachusetts, and Pennsylvania; and the Socialist Workers Party on in the District of Columbia and Pennsylvania.

In 1976, courts put Eugene McCarthy on the ballot as an independent presidential candidate in Delaware, Florida, Illinois, Kansas, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, Oklahoma, Tennessee, Texas, Utah, and Vermont. They put the Libertarian presidential nominee on the ballot in California, Nebraska, and Tennessee.

In 1980, courts put John B. Anderson and/or his vice-presidential running mate on in Florida, Georgia, Kentucky, Maine, Maryland, New Mexico, North Carolina, Ohio, Pennsylvania, and West Virginia. They put the Libertarian Party nominee on the ballot in Louisiana and West Virginia. They put the Citizens Party nominee on the ballot in California. They put the Communist Party nominee on the ballot in Michigan.

In 1984, courts put the Libertarian presidential nominee on the ballot in Nebraska, Oklahoma, Pennsylvania and Wyoming. They put the Communist Party nominee on the ballot in Michigan and Pennsylvania. They put the New Alliance Party nominee on the ballot in Massachusetts and Michigan. They put the Citizens Party nominee on the ballot in Michigan. They put the Populist Party nominee on in Idaho. They put the Socialist Workers Party nominee on in Michigan.

In 1988, courts put the New Alliance Party nominee on the ballot in California and Michigan. They put the Workers World nominee on in New Mexico. They put the Libertarian Party nominee on in Kansas. They put independent presidential candidate Eugene McCarthy on in Michigan. They put the Socialist Workers nominee on in Michigan.

In 1992, courts put the Libertarian Party nominee on in Alaska. They put the New Alliance Party nominee on in Nevada. They put the U.S. Taxpayers Party nominee on in Alaska. They put independent presidential candidate Lyndon LaRouche on in Ohio. They put the Natural Law Party nominee on in Nevada, and the Populist Party nominee on in Nevada.

In 1996, courts put the Libertarian Party nominee on in Arizona, Florida, and West Virginia. They put the Reform Party nominee on in Arkansas and Maine. They put the Natural Law Party nominee on in South Carolina.

In 2000, courts put the Green Party nominee on the ballot in Illinois and West Virginia. They put the Reform Party nominee on the ballot in Connecticut.

In 2004, courts put the Socialist Party nominee on the ballot in Colorado, and put independent presidential candidate Ralph Nader on the ballot in Arkansas, Colorado, and New Mexico.

In 2008, courts put the Libertarian Party nominee on in Massachusetts and Ohio, and the Green Party nominee on in Ohio, and the Socialist Party nominee on in Ohio, and the Constitution Party on in Ohio.

Already for the 2012 presidential election, a court has put the Libertarian Party on the ballot in Ohio.