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  • Richard Winger

Ballot Access & The Two-Party System

The United States is the only nation considered to be democratic that uses ballot access laws to keep opponents of the two dominant, powerful political parties off the ballot even when those opponents have substantial public support. Concerning ballot access, the United States has more in common with Russia, Iran, and Turkey, than it does with any nation in western or central Europe. Like the United States, in recent years Iran, Russia, and Turkey have also kept popular opposition parties and candidates off the ballot.

The United States did not have discriminatory ballot access laws in its first century of existence, because there were no ballot access laws. In presidential elections earlier than 1892, there were no government-printed ballots. Ballots were prepared by political parties or by individual voters. Therefore, the government had no power to prevent any voter from voting for any candidate. There were problems with that old system, such as an absence of secrecy in voting. But at least the old system did not, and could not, keep any new party from forming and receiving votes, even if a new party was not organized until a very short period before an election.

When states started preparing ballots, a few of them used their new power to make it difficult or even impossible for parties other than the Republican and Democratic Parties to place their nominees on the ballot. Most states originally wrote easy rules for ballot access for new parties and independent candidates, but as the years passed, in most states those laws got more and more stringent.

Among the most hostile ballot access laws in the early twentieth century were those in Florida, Louisiana, and North Carolina. North Carolina created government-printed ballots in 1901. It defined a qualified political party as one that had polled at least 50,000 votes for Governor in 1900. The only parties that had polled as many as 50,000 votes for Governor in 1900 were the Democratic and Republican Parties. Therefore, under the 1901 legal definition, no other group could ever become a qualified party. Even if either the Democratic or Republican Parties had ceased to exist in the future, they could never lose their ballot status in North Carolina. However, North Carolina did continue to permit other parties to use their own privately-printed ballots, so if one checks the election returns for North Carolina, one will find votes cast for minor parties. North Carolina did not change its policy until 1929, when it amended its law to say that a new party could get on the government-printed ballot if it submitted a petition of 10,000 signatures. The old definition of “party” that related to the 1900 gubernatorial election was replaced with a law that defined a party as one that had either submitted the petition, or which had polled 3% in the last election for either President or Governor.

Louisiana, in 1914, repealed all methods for a new party to get on the ballot. A party was defined as a group that had polled 5% of the vote for any statewide office in the last election. Independent candidates for statewide office could still get on the ballot if they submitted a petition of 1,000 voters who were not registered members of any party, but the ballot label for such petitioning candidates could only be “independent”, so even if a new party sponsored an independent candidate, the new party itself could not get any credit for meeting the vote test. If its nominee received more than 5%, because the nominee had no party label on the ballot, the new party itself could never be credited with having overcome the vote test. This law, which was not changed until 1948, kept all new and minor parties off the Louisiana ballot all the years it existed. Furthermore, because the overwhelming majority of Louisiana voters were registered Democrats, they couldn’t sign for an independent candidate. When U.S. Senator Robert La Follette ran for president as an independent progressive in 1924, he couldn’t get on the Louisiana ballot because his supporters couldn’t find as many as 1,000 voters who were registered independents to sign his petition. They were handicapped by another law that said voters couldn’t alter their party affiliation within six months of an election.

Florida, in 1931, repealed all methods for either a new party, or an independent candidate, to get on the ballot. A party was defined as a group that had polled 30% of the vote for any statewide race at either of the last two previous presidential election years. The State Supreme Court upheld these laws on the theory that because Florida still permitted write-in votes, any new party could try to poll 30% of the vote with a write-in campaign. After 1937, the Republican Party no longer qualified, because it had not polled 30% for any statewide race in either 1932 or 1936. So, the legislature simply amended the 30% to 15%, and the Republican Party was retroactively restored to the ballot. The law was eased slightly in 1939, when the law was changed again to say a qualified party was any group with registration membership of at least 5%, as shown by voter registration records. Thus, theoretically, a new party could try to persuade 5% of the voters to fill out new voter registration forms, listing themselves as members of such new party. But in practice this law was so stringent, no new party qualified. Also there continued to be no means for any independent candidate to get on the ballot. The law was eased for president only (but not other office) in 1948, but it was not eased for other office until 1970.

Lest it seem that restrictive ballot access laws only existed in the past, here is a list of current ballot access laws that are also highly restrictive, yet are still in place.

Alabama: minor parties, and independent candidates for all office except president, cannot appear on the ballot unless they submit a petition by the first week in June, with the signatures of voters equal to 3% of the last gubernatorial vote. Qualified parties are those that received 20% of the vote in the previous election. This law, which in its current form has only existed since 2005, has kept all minor parties off the statewide ballot ever since, and furthermore, has kept all statewide independent candidates for non-presidential office off the ballot since 1970 (presidential independent candidates only need 5,000 signatures, so they qualify frequently).

Arizona: starting in 2015, no member of a qualified minor party that has been on the ballot longer than four years can get on his or her own party’s primary ballot without a petition of one-fourth of 1% of the vote for that office in the last general election. The catch is that no one can sign such petitions except members of that party, or registered independents. Arizona forces all qualified parties to nominate by primary. This law has kept all Libertarian Party candidates for federal and state office from getting on the Libertarian primary ballot during 2016 and 2018. The law doesn’t apply to the Green Party, the only other ballot-qualified third party, so it has had nominees on the ballot. The Republican-majority legislature seems to have passed this law specifically to keep Libertarians off the ballot, while still permitting the smaller Green Party to appear on the ballot. In 2017 a U.S. District Court upheld the Arizona law, but the Libertarian Party is asking the Ninth Circuit to reverse that decision.

Arkansas: the definition of “political party” requires the group to poll 3% for President, or be removed from the ballot. Yet no third party has polled as much as 3% of the national presidential vote since 1925, except the American Party formed by George Wallace in 1968, the Reform Party in 1996, and the Libertarian Party in 2016, and even the Libertarians didn’t poll as much as 3% within Arkansas. When a party is removed from the ballot, it must submit a petition of 10,000 registered voters, which is due in January of the election year.

California: under the system passed by the legislature in 2009, and ratified by the voters in 2010, no one can be on the general election ballot for Congress or partisan state office unless he or she places first or second in the June primary. In practice, this means that third party candidates never appear on the general election ballot, unless one of the major parties doesn’t run anyone for the same office.

Florida: under a 2011 law, even a party that is recognized by the state as a qualified party cannot appear on the ballot for President unless it either submits a petition of approximately 130,000 signatures by July 15, or unless the Federal Election Commission recognizes it as a national committee. Because the FEC will never recognize a national committee unless it has already participated in a presidential election in the past, this means that new parties cannot appear on the ballot for president, even if the state has granted that group qualified status, unless it submits a huge petition. No group has ever completed this petition under the current law. In late 2011 the Secretary of State told one new party, called Americans Elect, that the law would not be enforced because the state had no official knowledge of which parties have been recognized by the FEC. But in September 2016, the state said it would enforce the law, and removed the presidential candidates of the Party for Socialism and Liberation, the Independent Party, and America’s Party. This action was taken so close to the election that the affected parties were unable to go to court. Expect litigation over this before the 2020 election.

Georgia: under a law passed in 1943, no independent candidate for U.S. House, and no U.S. House nominee of any party that didn’t poll 20% of the vote in the last election, can be on the ballot without a petition of 5% of the number of registered voters in the district. This is such a difficult petition that no minor party has ever completed it in the 75 years it has existed, and no independent has done it since 1964.

Hawaii: an independent candidate for any office other than president can’t appear on the November ballot unless he or she polls 10% in the primary, or outpolls the nominee of any party who is running for the same office.

Illinois: no independent candidate, nor the nominee of a party that failed to poll 5% for Governor in the last election, can be on the ballot for U.S. House unless he or she submits a petition of 5% of the last vote cast.

North Carolina: no independent candidate for any statewide office can be on the ballot unless he or she submits a petition of approximately 70,000 valid signatures, due in February of the election year.

Tennessee: no party can be on the ballot unless it either polled 5% for any statewide race ata the last election, or unless it submits a petition of 2.5% of the last gubernatorial vote. The petition is so difficult, it has not been used successfully since 1968. Independent candidates, on the other hand, only need 25 signatures, so minor party candidates always run in Tennessee as independents, which means that their true party label is not printed on the ballot, and voters have a more difficult time knowing which candidates represent which minor parties.

Texas: no party can get on the ballot unless it notifies the state by January 2 of the election year that it expects to try to qualify that year. This means that parties formed later than that date cannot possibly get on the ballot. Furthermore, for each office for which the proposed new party hopes to contest in November, some individual who wants the party’s nomination must file a declaration of candidacy with the party in December of the year before the election. After these forms are filed, the party cannot start to petition until after the Texas primaries, which are in March. The party needs the signatures of approximately 50,000 persons, none of whom voted in a partisan primary earlier that year. Independent candidates for president need even more signatures; the 2020 requirement will be 89,693 signatures, unless the law is changed before 2020. Voters who voted in the presidential primary cannot sign.

Utah: no new party can get on the ballot unless it submits a petition of 2,000 signatures by November 30 of the year before the election. This means, as in Texas, that a party formed in the election year itself is too late to get on the ballot.

Washington: like California, no one can be on the general election ballot (for office other than president) who fails to place either first or second in the primary. As in California, this has completely eliminated all parties from the ballot other than the Democratic and Republican Parties, except in races in which one or the other of the major parties doesn’t run anyone.

The list above is not a complete list of ballot access laws that are unreasonably difficult.

Most of the laws described above have been upheld by federal courts. It is difficult to win in lower federal courts, because the U.S. Supreme Court has refused to hear any ballot access case brought by an independent candidate, or a minor party, since 1991. There have been approximately 70 ballot access appeals filed in the Supreme Court since then that had real merit, but all of them have been rejected by the Court.

The mainstream news organizations and voting rights organizations tend to ignore the ballot access problem. For instance, the June 25, 2018 edition of the New York Times carried a story, “Alabama Offers Seven Examples of How to Limit the Right to Vote.” The problems described in the article were: (1) a photo identification law for voters who vote at the polls; (2) drivers license offices are closed in black areas; (3) officials push for a proof-of-citizenship mandate; (4) dozens of polling places are closed; (5) a get-out-the-vote group is hamstrung; (6) voter rolls are purged; (7) felon re-enfranchisement is not publicized. The Times is completely correct to criticize these Alabama practices. But the author of the article, reporter Maggie Astor, didn’t mention the ballot access problem, which has kept all statewide independent and minor party candidates (except for president, for which the law is easier) off the ballot for the last 16 years.

The American Civil Liberties Union is the only voting rights organization that regularly fights repressive ballot access laws. But Common Cause, the League of Women Voters, and the Brennan Center for Justice have little or no interest in the ballot access problem.

Some state legislatures have eased ballot access in recent years, and some lower federal courts have struck down severe ballot access laws. Progress against such laws always picks up when a new party that gets a great deal of attention enters the fight. As of July 2018, when this article is being written, there are signs that some prominent and wealthy Americans, weary of President Donald Trump’s administration and yet unwilling to support the Democratic Party, are getting more interested in improving the ballot access laws.

Richard Winger is the editor of Ballot Access News, a non-partisan newsletter that aims to increase awareness about the restrictive ballot access laws across the US and to report progress that is made.

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