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DO THIRD PARTIES HAVE A CHANCE? |
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by Ralph Nader and Theodore Jacobs
Harvard Law Record, October 9, 1958 Ralph Nader and Theodore Jacobs, the co-authors of this article, both graduated from the Law School last June. Mr. Nader is a former editor of the RECORD. 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 the testing of these principles in the crucible of actual events, that reservation begin the process of erosion. One area in which such erosion may be seen is that dealing with the laws governing the rights of minority political parties to place the names of their candidates on primary and general election ballots. 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 interpretations of these laws which ignore their prejudicial effect on small parties. The fact that this problem is still with us is evidenced by a long line of decisions upholding state requirements for small parties, the most recent being one handed down in November, 1957, by the California Supreme Court. In that decision, the primary law was upheld despite pleas by the Socialist Party and the Christian Nationalist Party that it would cost each party up to $400,000 to qualify under that state's petition requirements. It must be made clear that reference is not being made to political success, but rather to ballot access. Political success is impeded by deeper political patterns such as the election system of "plurality-take-all." Our emphasis here, however, is on the nature, operation and rationale of the laws preventing minority parties from merely placing their the names of their candidates on the election ticket. 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, with the least populous more often in the former and the more heavily populated in the latter category. It is possible, however, to give a brief survey of the present statutory situation. Barriers and Alternatives Established political parties nominate their candidates in most states through a party primary which permits a direst expression by the voter of his preferences for party nominations. But minority groups are not permitted to nominate by means of party primaries unless they have received a certain percentage or number of votes cast in the preceding gubernatorial election. The minimum percentages stretch from 1% in Connecticut to 25% in Virginia, while the minimum figures range from 500 in Delaware to 50,000 in New York. If the small party does not qualify for the primary, it may resort to the use of the independent nominating petition, which is essentially a device that allows a group to lace its candidates on the ballot if a sufficient number of signatures is obtained. While the independent nominating petition is the most widely used, it also confronts the small party with its most onerous burdens. 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; 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 in the preceding gubernatorial election, with a maximum limit of 10,000 signatures. 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). Other states exact flat numerical minimums. New York, Illinois, Massachusetts, and Ohio demand that the signatures obtained on nominating petitions represent a prescribed number of residents in a specified number of counties throughout the state. Apportionment requirements often result in giving disproportionate power to rural areas and discourages urban and, in some cases, rural centered groups from availing themselves of the election process. Outdated Apportionment For example, the Illinois statute states that a petition to nominate candidates for a new political party must be signed by at least 25,000 qualified voters, including at least 200 from each of the 102 counties in the state. The New York statute compels even greater omnipresence. It reads: "An independent nominating petition for candidates to be voted for by all the voters of the state must be signed by at least 12,000 signatures of whom at least 50 shall reside in each county of the state...." The Illinois law was challenged by the Progressive Party just before the 1948 elections. The case reached the U.S. Supreme Court where it was argued that the statute's disproportionate favoring of rural counties violated the equal protection clause of the 14th Amendment. In a 6-3 decision, the court disagreed and upheld the law. Writing the dissent, Justice Douglas stated: "The notion that one group can be granted greater voting strength than another is hostile to our standards for popular representative government." He was referring to the fact that 25,000 signatures from 50 of the least populous counties could form a new party while the same number from 49 counties with 87 percent of the registered voters could not. Regulations pertaining to authentication of signatures, even in states with liberal signature and apportionment legislation, provide further hurdles for small parties to overcome. Six states require individual notarization of every signature on a nominating petition. In Missouri, each of the 36,000 names needed must be certified by a notary who personally knows the signer or by two witnesses who can swear to his identity. (Part One of Three Parts) Other Requirements Early filing dates, often four to six months before the election, effectively bar eleventh hour protest or splinter parties and force the gathering of signatures before the acme of the public's political consciousness. In other states, the period within which signatures may be obtained is severely restricted. Pennsylvania, for example, requires that the total number of necessary signatures be obtained within a 20 day period. The potential group from which signers may be solicited is even limited in many states. Prevented from signing an independent nominating petition are those who voted in a contemporary party primary as well as voters affiliated with another party within a specified previous period. Such state action has the effect of preventing voters from changing party connections during a campaign after the primary elections or during the prescribed pre-election period. One of the characteristics of an inflexible standard is the facility with which it can be abused in its enforcement. Thus, even when a minority party complies with all the major regulations there remains a fair possibility that the petition will be totally negated by a technical defect or omission often due to ambiguities in the election law. As a final resort for the politically frustrated, the write-in vote is available in 47 states, and would probably be implied as a constitutional right in the absence of any express provision. In practice, the write-in vote is a somewhat illusory privilege. No party has ever won an election in this manner, though an occasional independent has been elected this way. The experience of the Socialist Party is that most states, finding the write-in unwieldy, simply disregard them in submitting their count of the vote. Restrictions Parallel Movements Since 1948, when Henry Wallace's Progressive Party conducted a national campaign, minor parties, by their diminished activity, have not provided the underlying impetus for further state restrictions along the line of number, apportionment and authentication. Indeed, there was hardly any need to increase already severe requirements. But it is more than sheer happenstance that periods of minor party activity have been paralleled by a rash of restrictive enactments from the two party dominated legislatures. The thirties and forties were such periods. In 1932 the Socialist Party made the North Carolina ballot with a petition of 10,000 signatures. Immediately thereafter the legislature enacted more stringent requirements. Only the Democratic and Republican Parties appeared on the election ticket in 1936. Added to these legal obstacles have been a variety of pressures in the form of discriminatory judicial and administrative enforcement, and harassing, intimidating tactics by vigilante groups. The latter pressure has been expressed in the past by publishing petitions in newspapers to embarrass or black-list signers and even by physical violence against small party workers. The constitutionality of even the harshest statutes has been maintained against claims of deprivation of due process, equal protection of the laws, and the right to vote. If the restrictions on access do not constitute an absolute bar and if the particular court gives weight to the write-in as an available alternative, these laws are deemed reasonable and therefore valid. Otherwise judicial review is as broad as judicial discretion which thus far has taken the form of a "hands off the legislature" policy. What is constitutional may still be unwise. This is revealed by an examination of the evils which these restrictions are allegedly designed to prevent. It is contended that the signature requirements prevent the ballot from becoming the size of a blanket and thereby confusing the voter. The "blanket size ballot" argument has some validity, but it is attributed to the wrong cause. Rather than arising from an excess of parties, the long ballot has been due to a plethora of elective offices all the way from Governor to the county surveyor and the total listing of a state's presidential electors. With the replacement of the electors column by the names of the presidential and vice presidential candidates and the partial reduction of elective offices in many states, the problem of the long ballot has greatly diminished. To overburden and sometimes suppress minority parties in order to simplify the ballot is using the guillotine to cure the toothache and recalls the ardent cry, "Quick, Suzie, the hammer; there's a fly on baby's head." It has also been asserted that ballot requirements have not unreasonably inhibited or actually kept minority parties off the election ticket. Rather, it is believed, the historical failure of third parties is due to non-legal factors rooted deeply in the American political system. Impact of Harsh Restrictions This position is untenable. First, it is historically false: there are numerous instances where parties have been kept off the ballot by onerous conditions or by technical disqualifications. Even the Republican Party was not spared in the 1918 Florida elections. Second, the fact that through great effort and expense minor parties have surmounted formidable obstacles does not reflect on the reasonableness of such barriers. On the contrary, they have forced parties to exhaust their financial and human energies in qualifying rather than in the conduct of a political campaign. Furthermore, the necessary concentration on ballot access in a few states has entirely curtailed possible attempts in other states. And, perhaps most important, the probability of overcoming an obstacle surely cannot properly be regarded as a reason for the creation of the obstacle in the first place. Small Party Motivations Another viewpoint espoused by exponents of ballot restrictions reasons as follows: The decision of third parties to act independently is motivated by a desire to replace one of the major party organizations. To accomplish this aim, it must draw support on a scale far larger than present ballot requirements, especially in view of our plurality election system. This requires organization and development through time. Collecting a prescribed number of signatures encourages contact with the individual voter and development of an extensive local organization without which a party cannot hope to win an election. This view is based on the mistaken assumption that the primary motivation of small parties is winning elections. This may remain a long term aspiration but the controlling objectives remain the more immediate ones. When asked what motivations underlie their action, minority party officials might answer along the following lines: "As a rule we are vitally interested in some fundamental idea of government from which springs a definite platform of specific issues or, in the alternative, particular legislation not based on a distinct theory of government. An example of the former is the Socialist Party while the Prohibition Party represents the latter. "By participating in the electoral process we wish to demonstrate the popularity of our platform so that it will gain more adherents or will be accepted as a policy of a major party. We provide an opportunity for those dissatisfied with the major parties to register protest votes which can tip the scales in a closely contested two-party election. "In an era witnessing a growing trend for the two major parties to dispute over vague generalities and parade personalities as mechanisms of political appeal, we believe in concentrating on specific issues and basic principles which can be welded into a consistent program only because it is not necessary, as it is in the major parties, to conciliate a multitude of incompatible interest. "We avoid the excessive compromise that breeds innocuousness principally because we are not seriously trying to win the next election. In their quest for power by electoral success the major parties must appeal to the broadest public possible. We escape this adulteration of our platform because we use the electoral process as a point of departure for our agitation, as a means not an end." It can be seen from the foregoing how exclusion from the ballot can totally stifle the advancement of these perfectly legitimate aspirations. Access to the election slate not only permits the expression of public opinion but also has a high publicity value in marshaling greater support. It is the only practical way by which minor parties can say "Republicans and Democrats -- take notice!" Salutary Effect of Easier Access This is no place to catalogue the contributions of minority parties in American history. Their importance, as any history text will attest, has been far greater than their size. Herman Singer, editor of the Socialist Call, spoke of history when he stated that "minor parties have, by and large, contributed to American political life by submitting criticism, offering suggestions and challenging the values of existing parties, thus contributing toward the expansion of political discussion." At a minimum, minor parties have many times in our history deeply stirred opinion and illuminated the murky atmosphere of politics with a flash of idealism. From the standpoint of the electorate, this is bound to have substantial educative value. Opening the ballot to more than two alternatives encourages citizen participation in the political process. The right to political dissent becomes nominal and can become dangerous without the steamvalve mechanism of placing minority before the voters. Frustrating local restrictions can only contribute to disillusionment with our democratic ideals. The True Premise It is perilous, however, to rest an advocacy of liberal ballot legislation on a utilitarian evaluation of minority parties. Such a foundation is too unstable, too fluctuating, and excessively subject to the whims of majority assessment. Rather, it is submitted, the right to present minority candidates before the electorate on equal terms with other parties derives from those basic rights inherent in a free society. And these rights stem from a tradition of unending struggle to preserve the free competition of the marketplace of ideas. A democratic society should not dismiss a freedom as unimportant merely because it has comparatively little direct significance to the majority. We would do well to remember that suppression once sanctioned has epidemic qualities and that all of us are minorities in one framework or another.
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