Page 2 Harvard Law Record December 3, 2009
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In October 1958, Ralph Nader, then arecently-graduated, former editor of theHarvard Law Record, co-authored anarticle decrying the monopolistic prac-tices of the Democratic and Republican parties on state ballot laws and their illeffects on minor parties. In defense of political dissent and the engagement of new proposals, Nader noted the “manytimes in our history” minor parties had“deeply stirred opinion.” It was easier in the 19th century for regional or smallstart-up parties to get on the ballot andinfuse elections with ideas such as theabolition of slavery, a woman’s right tovote, worker and farmer reforms—allof which we take for granted today,though the minor parties first advocat-ing these rights did not win the presi-dency.Five decades later, Mr. Nader, now aninternationally-renowned consumer ad-vocate, has announced his candidacyfor the U.S. presidency three times,twice as an Independent and once onthe Green Party ticket. His prescientwords concerning the suppression of minor parties and dissenting agendasremain even more accurate today asthey were fifty-one years ago.I have an intimate knowledge of these ballot access burdens because I man-aged the Nader’s 2000 and 2004 presi-dential campaigns and had to navigatethrough these laws and oversee or in-stigate nearly four dozen lawsuits to de-fend against or seek reform of their illeffects. Indeed, in 2004—motivated bythe 537-vote difference between AlGore, Jr. and GeorgeW. Bush in Floridain 2000—the Democrats and their allieslaunched two dozen complaints in 12weeks against Nader’s candidacy, con-suming the time, energy and resourcesof the 2004 campaign, which was, inaddition to blocking ballot access, theexpressed goal of these major party po-litical bigots and their brethren. Thelitigious onslaught targeted Nader’scandidacy simply because he, like alleight minor party candidates on the bal-lot, received more than 537 votes: buthe received the most and was posi-tioned to appeal to voters again with a progressive agenda.Today, as in 1958, ballot access for minor parties and Independents remainsconvoluted and discriminatory. Thoughcertain state ballot access statutes are better, and a few Supreme Court deci-sions (
Williams v. Rhodes
, 393 U.S. 23(1968),
Anderson v. Celebrezze
, 460U.S. 780 (1983)) have been generallyfavorable, on the whole, the process— and the cumulative burden it places onthese federal candidates—may be bestdescribed as antagonistic. The ju-risprudence of the Court remains hos-tile to minor party and Independentcandidates, and this antipathy can beseen in at least a half dozen cases de-cided 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),
Arkansas Ed. TelevisionComm'n v. Forbes
, 523 U.S. 666(1998).Justice Rehnquist, for example, writ-ing for a 6-3 divided Court in a fusioncase,
Timmons v. Twin Cities Area New Party
, 520 U.S. 351 (1997), spells outthe Court’s bias for the “two-party sys-tem,” even though the word “party” isnowhere to be found in the Constitu-tion. He wrote that “The Constitution permits the Minnesota Legislature todecide that political stability is bestserved through a healthy two-party sys-tem. And while an interest in securingthe perceived benefits of a stable two- party system will not justify unreason-ably exclusionary restrictions, Statesneed not remove all the many hurdlesthird parties face in theAmerican polit-ical arena today.” 520 U.S. 351, 366-67.This license, in effect, to discriminateagainst third parties and Independ-ents—as well as the Court’s general re-luctance to require much substantiationof “state interests” when states proffer that rationale to defend discriminatorylaws—have not made it easy to be anIndependent or the candidate of aGreen, Libertarian, Socialist or Consti-tution Party, not to mention all the oth-ers. Moreover, the Court has leftunreviewed outright miscarriages of justice, as Nader knows from his half dozen unheard petitions to the Courtspringing from his 2004 campaign.The burdens faced by minor partyand Independent candidates are sys-temic. First, there are 51 different setsof Byzantine rules, written the by the partisan members of the legislatures of the fifty states and the District of Co-lumbia. As the major parties are usu-ally automatically on the ballot, the partisan legislators show little concernfor leveling the ballot access playingfield for challengers to their incum- bency or parties.Second, many of these ballot accesslaws are blatantly unconstitutional—asin they have already been held by thecourts to be so, but the administratorsof the elections cannot get their ownstate’s legislatures to bring the electioncodes into compliance with judicial rul-ings. (We found this to be the case inmultiple states, including Alaska,Arkansas, California, NewYork, Penn-sylvania, and West Virginia.)Third, election officials in the thou-sands of state and local jurisdictions ad-ministering these state laws controllingfederal elections often don’t know whattheir own ballot access laws contain or mean or are reluctant to tell candidatestheir meaning for fear of being sued.Fourth, compliance with the lawsmay be overseen by partisan civil ser-vants, commissions, or courts, and weencountered all of the above in the ad- judication of our cases, including egre-gious examples of partisanship—suchas the use of the denial of ballot accessas a partisan fundraising promotion bythe then-Secretary of State of Oregon.Finally, the aggregate of these ballotaccess laws, either cumulatively bystate, or even within a state, as alludedto by Justice O’Connor in her concur-rence 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 In-dependent candidates. Others includethe federal regulatory system, the lack of public financing, the often dismis-sive if not derisive media, the Democratand Republican cartel otherwise knownas the Commission on Presidential De- bates, which acts as a debate and mediagatekeeper to millions. Also, thehodgepodge of irregular and inconsis-tent laws can devalue the rights of avoter or candidate (from what counts asa vote to who is entitled to seek anaudit) depending on the particular state jurisdiction in charge of administeringthe peculiar state laws applying to fed-eral elections.Ten years ago,TheAppleseed Center for Electoral Reform and the HarvardLegislative Research Bureau publishedin the Harvard Journal on Legislation
A Model Act for the Democratization of BallotAccess
, 36 Harv. J. on Legis. 451(1999). A decade later, not a singlestate has, and the problems remain.I contend in my recent book, GrandIllusion, the Myth of Voter Choice in aTwo-Party Tyranny, that a better re-sponse would be to federalize federal ballot access laws by creating one fed-eral statute applicable to all federalelections. (State laws written to controlthe processes for candidates for Con-gress are often as bad, indeed worsethan presidential ballot access laws,with some voters never having thechance to vote for Independent candi-dates for Congress because of their harsh state ballot access laws.)Since 1985, a few members of Con-gress—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 legis-lation to ease these burdens for either or both congressional and presidentialcandidates. Congress has shown thatit can exercise control over federal elec-tions where necessary by passing fed-eral legislation to regulate a variety of aspects including registration (the“Motor Voter”Act), provisional ballotsand state registration databases (theHelp America Vote Act), and most re-cently absentee ballots for those abroad(the MOVEAct (Military and OverseasVoting Empowerment)).The prospect of passing a federal law(which has been introduced in some in-carnation and voted out of committeeand received a floor vote at least once inthe House in the last two decades) isdim, but greater than the nonexistentmovement for passage of a state model ballot access law, which has seen nosuccess in the last decade.The question we should be asking iswhy we continue to permit this injus-tice when no other western country putsits third party and Independent candi-dates through the kind of hazing process ours does? The congressionalincumbency rate (routinely in the 90th percentile) reflects the often uncon-tested or merely predictable-by-landslide-proportions state of our congressional elections.These uncompetitive elections can beimpregnable for many reasons, not theleast of which are gerrymandered dis-tricts, a winner-take-all or first-past-the- post electoral system, and the lack of achoice-maximizing vote counting sys-tem, such as instant runoff or rankedchoice voting.The lack of candidate and program-matic choice are also to blame, and for that we can look at the still onerous bal-lot access laws Nader warned of in1958 and the ignominious role thoselaws have played in narrowing voters’options by dictating the flipside of thosechoices—candidates’rights to run on alevel playing field. Improved third party and Independent candidaterights— by invigorating and diversify-ing voter choices—will give citizensmore meaningful elections.
Theresa Amato, a public interest lawyer, is a graduate of Harvard Col-lege and NYU Law, a former Wasser- stein 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 as the na-tional presidential campaign manager and in-house counsel for Ralph Nader in 2000 and 2004, was published this year by The New Press.
For more information on ballot accessissues, see links on hlrecord.org
Do Third Parties Have aChance? BallotAccess andMinority Parties (1958)
The following article, by Ralph Nader ’58 and Theodore Jacobs ’58, was pub-lished in the HL R
ECORD
on Oct. 9,1958. Mr. Jacobs diedAug. 7, 1998 of aneuromuscular degenerative ailment.
Most people will agree, as a general proposition, that our democratic faith isreflected 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 practicalmonopoly of the ballot by the Demo-cratic and Republican parties. The per- petuation of this monopoly is insured by laws which subject the entry of newor minority party slates to the ballot toalmost impossible burdens, and by ju-dicial interpretation of these laws whichignore their prejudicial effect on small parties. [...]What requirements must a small party or independent group meet inorder to place its candidates on the bal-lot? There are 48 different answers tothis question. Each state has its dis-tinctive statutes, ranging from liberal toharsh, [...]Without taking into account all theminor variations in the several states,three main aspects of the independentnominating petition may be treated: (1)The number of signatures required; (2)Apportionment of these signaturesthroughout the state; (3) Stipulationsconcerning authentication of signaturesand restrictions on persons who sign petitions.In its Model Election Law, theAmer-ican Civil Liberties Union urged thatminor parties be required to accumulatesignatures equivalent to only one-tenthof one percent of the total vote cast [...]Compare this standard with the re-quirements of 2 percent in Missouri(36,000 votes), 3 percent in Massachu-setts (71,643 votes), 5 percent in Cali-fornia (259,000 votes) and 7 percent inOhio (259,000 votes).
See more at
HLRECORD
.
ORG
Two-Party Ballot Suppresses Change
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