The two party ballot suppresses third party change

BY THERESA AMATO

In October 1958, Ralph Nader, then a recently-graduated, former editor of the Harvard Law Record, co-authored an article (reproduced below) decrying the monopolistic practices of the Democratic and Republican parties on state ballot laws and their ill effects on minor parties.  In defense of political dissent and the engagement of new proposals, Nader noted the “many times in our history” minor parties had “deeply stirred opinion.”  It was easier in the 19th century for regional or small start-up parties to get on the ballot and infuse elections with ideas such as the abolition of slavery, a woman’s right to vote, worker and farmer reforms—all of which we take for granted today, though the minor parties first advocating these rights did not win the presidency. 

Five decades later, Mr. Nader, now an internationally-renowned consumer advocate, has announced his candidacy for the U.S. presidency three times, twice as an Independent and once on the Green Party ticket.  His prescient words concerning the suppression of minor parties and dissenting agendas remain even more accurate today as they were fifty-one years ago.  

I have an intimate knowledge of these ballot access burdens because I managed the Nader’s 2000 and 2004 presidential campaigns and had to navigate through these laws and oversee or instigate nearly four dozen lawsuits to defend against or seek reform of their ill effects.  Indeed, in 2004—motivated by the 537-vote difference between Al Gore, Jr. and George W. Bush in Florida in 2000—the Democrats and their allies launched two dozen complaints in 12 weeks against Nader’s candidacy, consuming the time, energy and resources of the 2004 campaign, which was, in addition to blocking ballot access, the expressed goal of these major party political bigots and their brethren.  The litigious onslaught targeted Nader’s candidacy simply because he, like all eight minor party candidates on the ballot, received more than 537 votes:  but he received the most and was positioned to appeal to voters again with a progressive agenda.

Today, as in 1958, ballot access for minor parties and Independents remains convoluted and discriminatory.  Though certain state ballot access statutes are better, and a few Supreme Court decisions (Williams v. Rhodes, 393 U.S. 23 (1968), Anderson v. Celebrezze, 460 U.S. 780 (1983)) have been generally favorable, on the whole, the process—and the cumulative burden it places on these federal candidates—may be best described as antagonistic.  The jurisprudence of the Court remains hostile to minor party and Independent candidates, and this antipathy can be seen in at least a half dozen cases decided since Nader’s article, including Jenness v. Fortson, 403 U.S. 431 (1971), American Party of Tex. v. White, 415 U.S. 767 (1974), Munro v. Socialist Workers Party, 479 U.S. 189 (1986), Burdick v. Takushi, 504 U.S. 428 (1992), and Arkansas Ed. Television Comm’n v. Forbes, 523 U.S. 666 (1998).  

Justice Rehnquist, for example, writing for a 6-3 divided Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), spells out the Court’s bias for the “two-party system,” even though the word “party” is nowhere to be found in the Constitution.  He wrote that “The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system. And while an interest in securing the perceived benefits of a stable two-party system will not justify unreasonably exclusionary restrictions, States need not remove all the many hurdles third parties face in the American political arena today.”  520 U.S. 351, 366-67.  

This license, in effect, to discriminate against third parties and Independents—as well as the Court’s general reluctance to require much substantiation of “state interests” when states proffer that rationale to defend discriminatory laws—have not made it easy to be an Independent or the candidate of a Green, Libertarian, Socialist or Constitution Party, not to mention all the others.  Moreover, the Court has left unreviewed outright miscarriages of justice, as Nader knows from his half dozen unheard petitions to the Court springing from his 2004 campaign. 

The burdens faced by minor party and Independent candidates are systemic.   First, there are 51 different sets of Byzantine rules, written the by the partisan members of the legislatures of the fifty states and the District of Columbia.  As the major parties are usually automatically on the ballot, the partisan legislators show little concern for leveling the ballot access playing field for challengers to their incumbency or parties.  

Second, many of these ballot access laws are blatantly unconstitutional—as in they have already been held by the courts to be so, but the administrators of the elections cannot get their own state’s legislatures to bring the election codes into compliance with judicial rulings.  (We found this to be the case in multiple states, including Alaska, Arkansas, California, New York, Pennsylvania, and West Virginia.)  

Third, election officials in the thousands of state and local jurisdictions administering these state laws controlling federal elections often don’t know what their own ballot access laws contain or mean or are reluctant to tell candidates their meaning for fear of being sued.  

Fourth, compliance with the laws may be overseen by partisan civil servants, commissions, or courts, and we encountered all of the above in the adjudication of our cases, including egregious examples of partisanship—such as the use of the denial of ballot access as a partisan fundraising promotion by the then-Secretary of State of Oregon.  

Finally, the aggregate of these ballot access laws, either cumulatively by state, or even within a state, as alluded to by Justice O’Connor in her concurrence in Clingman v. Beaver, 544 U.S. 581 (2005), may be overwhelmingly burdensome.

Of course, ballot access is just one of the burdens faced by third party and Independent candidates.  Others include the federal regulatory system, the lack of public financing, the often dismissive if not derisive media, the Democrat and Republican cartel otherwise known as the Commission on Presidential Debates, which acts as a debate and media gatekeeper to millions.  Also, the hodgepodge of irregular and inconsistent laws can devalue the rights of a voter or candidate (from what counts as a vote to who is entitled to seek an audit) depending on the particular state jurisdiction in charge of administering the peculiar state laws applying to federal elections.  

Ten years ago, The Appleseed Center for Electoral Reform and the Harvard Legislative Research Bureau published in the Harvard Journal on Legislation “A Model Act for the Democratization of Ballot Access”, 36 Harv. J. on Legis. 451 (1999).  A decade later, not a single state has, and the problems remain.  

In my recent book, Grand Illusion, the Myth of Voter Choice in a Two-Party Tyranny, I contend that a better response would be to federalize federal ballot access laws by creating one federal statute applicable to all federal elections.  (State laws written to control the processes for candidates for Congress are often as bad, indeed worse than presidential ballot access laws, with some voters never having the chance to vote for Independent candidates for Congress because of their harsh state ballot access laws.)  

Since 1985, a few members of Congress—John Conyers, D-MI (e.g. HR 2320, HR 1582), Ron Paul, R-TX (e.g. HR 3600), and Tim Penny, DFL-MN (e.g. HR 1755)—have attempted over nine sessions to introduce federal legislation to ease these burdens for either or both congressional and presidential candidates.&nb
sp; Congress has shown that it can exercise control over federal elections where necessary by passing federal legislation to regulate a variety of aspects including registration (the “Motor Voter” Act), provisional ballots and state registration databases (the Help America Vote Act), and most recently absentee ballots for those abroad (the MOVE Act (Military and Overseas Voting Empowerment)).  

The prospect of passing a federal law (which has been introduced in some incarnation and voted out of committee and received a floor vote at least once in the House in the last two decades) is dim, but greater than the nonexistent movement for passage of a state model ballot access law, which has seen no success in the last decade.  
The question we should be asking is why we continue to permit this injustice when no other western country puts its third party and Independent candidates through the kind of hazing process ours does?  The congressional incumbency rate (routinely in the 90th percentile) reflects the often uncontested or merely predictable-by-landslide-proportions state of our congressional elections.  

These uncompetitive elections can be impregnable for many reasons, not the least of which are gerrymandered districts, a winner-take-all or first-past-the-post electoral system, and the lack of a choice-maximizing vote counting system, such as instant runoff or ranked choice voting.  

The lack of candidate and programmatic choice are also to blame, and for that we can look at the still onerous ballot access laws Nader warned of in 1958 and the ignominious role those laws have played in narrowing voters’ options by dictating the flipside of those choices—candidates’ rights to run on a level playing field.   Improved third party and Independent candidate rights— by invigorating and diversifying voter choices—will give citizens more meaningful elections. 

Theresa Amato is a public interest lawyer and was national campaign manager and in-house counsel for Ralph Nader in 2000 and 2004. She, is a graduate of Harvard College and NYU Law, a former Wasserstein Fellow at HLS and an Institute of Politics Fellow at the Kennedy School.  Her book, Grand Illusion: the Myth of Voter Choice in a Two-Party Tyranny, based on her experiences with the Nader campaign, was published this year by The New Press.

Do Third Parties Have a Chance? Ballot Access and Minority Parties (1958)

The following is an excerpt from an article by Ralph Nader ’58 and Theodore Jacobs ’58, published in the Harvard Law?Record on Oct. 9, 1958. Mr. Jacobs passed away on Aug. 7, 1998, of a neuromuscular degenerative ailment.

Most people will agree, as a general proposition, that our democratic faith is reflected in our treatment of minorities.  But, as so often happens with national professions, it is in the translation of these declarations into actual practice […]

In state after state there is a practical monopoly of the ballot by the Democratic and Republican parties.  The perpetuation of this monopoly is insured by laws which subject the entry of new or minority party slates to the ballot to almost impossible burdens, and by judicial interpretation of these laws which ignore their prejudicial effect on small parties. […]

What requirements must a small party or independent group meet in order to place its candidates on the ballot?  There are 48 different answers to this question.  Each state has its distinctive statutes, ranging from liberal to harsh, […]

Without taking into account all the minor variations in the several states, three main aspects of the independent nominating petition may be treated: (1) The number of signatures required; (2) Apportionment of these signatures throughout the state; (3) Stipulations concerning authentication of signatures and restrictions on persons who sign petitions.

In its Model Election Law, the American Civil Liberties Union urged that minor parties be required to accumulate signatures equivalent to only one-tenth of one percent of the total vote cast […] Compare this standard with the requirements of 2 percent in Missouri (36,000 votes), 3 percent in Massachusetts (71,643 votes), 5 percent in California (259,000 votes) and 7 percent in Ohio (259,000 votes).