The United States has many laws and habits that make it difficult for voters to organize new parties, or to support independent candidates. These include severe ballot access laws, discriminatory campaign finance laws, and candidate debates to which only the Republican and Democratic nominees are invited. An additional problem that only relates to presidential elections is found in Article II of the U.S. Constitution, which says that the Electoral College chooses the President. This means that someone who places second in the popular vote can still take the office. Worse, if no one gets a majority of the Electoral College vote, the U.S. House chooses the President, with each state’s delegation having one vote. The Constitutional provisions relating to presidential election are themselves a major barrier to independent presidential campaign activity.
Happily, there has been progress during the last 30 years to ease one of these problems, the ballot access laws. Ever so slowly, the number of signatures for a newly-qualifying party, or an independent candidate, to get on the ballot has been decreasing as a percentage of the electorate.
If one adds up the number of signatures for the presidential nominee of a new party, or an independent presidential candidate, to get on all ballots, one finds that the petition burden (as a percentage of the number of votes cast for President that year) is lower now than it has been since 1936. The table below covers the period 1892 through 2016. There were no government-printed ballots before 1889, so there were no ballot access laws for president elections 1888 and earlier. Ballots were privately prepared. A voter could make his own ballot, or obtain a ballot printed by his favorite party.
The denominator used above is the number of votes cast for President in that year’s election. Of course, no one knows how many votes will be cast for President in November 2016, but the denominator used for the chart for that election is 133,000,000. It seems safe to assume that there will be at least that many votes cast. Even in November 2008 there were 131,313,820 votes cast, and the U.S. electorate is constantly growing because of population growth.
Each state has procedures for independent presidential candidates, and for new parties. The chart uses the easier method in each state. For more about how the chart was compiled, see the article “How Many Parties Ought to be on the Ballot?” in the Election Law Journal, volume 5, number 2, 2006, by Richard Winger.
The reason the number of signatures, as a share of the national electorate, has been declining is because minor party activists have been working for 40 years to persuade state legislatures to ease the requirements. States that have significantly eased the number of signatures to get on the general election ballot for President in the last 40 years are Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Louisiana, Maryland, Massachusetts, Missouri, Montana, Nevada, Oklahoma, Oregon, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wyoming. All of those states eased their requirements because state legislatures voluntarily eased them, except that in Alaska, Georgia, Idaho, and Tennessee, court rulings are responsible; and in Florida and Massachusetts, the voters voted in favor of ballot measures easing the requirements. The Georgia court decision is quite recent, and was issued on March 17, 2016. A U.S. District Court ruled that the Georgia petition requirement of 1% of the number of registered voters (approximately 50,000) was unconstitutionally high, given the evidence that states that require only 5,000 signatures never suffer from a crowded ballot (where “crowded ballot” was defined as one with more than eight candidates for a single office).
Not all the changes in the last 40 years have been beneficial. States that have made their ballot access procedures substantially worse for President and all other office are Alabama, New Hampshire, and North Carolina. For office other than President, California and Washington have also made general election ballot access much more difficult than it was in the past. Both states have switched to a system in which only two candidates can ever appear on the general election ballot. Inevitably, those two candidates are Democrats and Republicans. California even abolished write-in space in the general election for Congress and state partisan office, when it switched to the top-two system in 2010.
Improvements in How a Party Remains on the Ballot
Another aspect of ballot access laws that has improved very much during the last 40 years are the laws on how a party remains on the ballot. Almost all states define a qualified political party to be a group that polled a certain percentage of the vote in the previous election. As of 1976, the median vote test to determine whether a party remains on the ballot was 5%. Currently, it is 2%. This is important, because whereas new and minor parties are sometimes capable of submitting a hefty number of signatures once or twice, when the requirements for a party to remain on the ballot are steep, such parties usually go off the ballot after a general election and then must petition again, over and over, which is exhausting. States that have made the most dramatic changes in the test to remain on the ballot are Alaska (10% to 3%), Colorado (10% to 1%), Florida (registration membership of 5%, to just maintaining a list of state officers and continuing to file campaign finance reports), Louisiana (registration membership of 5%, to just 1,000 registered voters), Maryland (10% to 1%), Nevada (5% to 1%), North Carolina (10% to 2%), South Dakota (10% to 2.5%), and Wyoming (10% to 2%).
But, two states have made their requirements for a party to remain on far more draconian. These are Alabama, which went from just requiring a group to be organized and have state officers and hold conventions, to a requirement that the group poll 20%; and Pennsylvania, which went from a vote test of slightly over 1%, to having registration membership of 15% of the state registration total. If Massachusetts, Rhode Island, and the District of Columbia had the same retention test that Pennsylvania has, even the Republicans wouldn’t be on the ballot and would need to petition for all their nominees every election. And Democrats wouldn’t be on in Idaho or Utah.
Other Problems for Minor Party and Independent Candidates
On the problem that many candidate debate sponsors won’t invite anyone but the Democratic or Republican nominees, it is difficult to know now if any headway is being met. The Commission on Presidential Debates, which requires presidential candidates to show at least 15% support in polls, refused to ease that rule recently. However, two federal lawsuits are pending against that policy, both in U.S. District Court in Washington, D.C., and it isn’t possible to know if they will win.
On the problem of the Electoral College, the National Popular Vote Plan is an interstate compact that would require the states adopting it to award their Electoral College votes to the candidate who wins the nationwide popular vote. Currently, 11 states accounting for 165 Electoral College votes have enacted the plan into law. The plan will take effect when it is enacted by states that comprise a majority, or 270 Electoral College votes. Most recently, the Arizona House passed the plan in early 2016, but it is still pending in the state Senate. For more about the National Popular Vote Plan, see nationalpopularvote.com.
Richard Winger is a leading expert on ballot access laws. He is editor and publisher of Ballot Access News, a print monthly newsletter that Winger founded in 1985. Winger also serves on the editorial board of the Election Law Journal, and wrote the chapter on ballot access in the American Bar Association’s book on election laws.