by Jordon M. Greene, State Treasurer Back to Articles Page
March 10, 2008
When candidates for public office make their decision to run in an election, there are several observations or considerations that must take place before the candidate can make an informed run for that specific office. He needs to know whom he desires to represent, and in turn, what his constituency want to see in the end from a candidate for that office, as well as other important, yet in some eyes, seemingly miniscule technicalities such as access to the election ballot. Regretfully, I would dare say that most citizens of the United States have little to no knowledge of the issue of ballot access restrictions or the sheer existence thereof, yet it affects their choice of representation every election year. As Oliver Hall, founder and executive director of the Center for Competitive Democracy, states “[although ballot access laws] receive relatively little scrutiny, modern ballot access laws are probably the most obviously anticompetitive feature of the American electoral system” (Hall 414). Ballot access restrictions are a violation of the peoples’ rights and an the individual’s right to participate in his government and must be either drastically reduced or abolished altogether for the restoration of free and equal elections.
The problem is one that can arise and has arrived in the United States, with democratic systems of winner-take-all voting given that majority rules. In effect, with the ill-perceived notion of an American Democracy rather than a Republic, we have allowed this to come about. In a Democracy the majority are able to oppress the minority through their vote; likewise the majority have accomplished this very task through the Republican and Democratic parties with ballot access restrictions that most states have placed on third parties and unaffiliated candidates running for public office. As Oliver Hall states, in essence, the purpose of ballot access restrictions is simply to “…prevent the minority from participating in the political process. When and how to protect the minority in a system of majority rule – the ‘countermajoritarian problem’ of democracy – is an ongoing question for any democratic state” (Hall 408). There is no doubt that it is true that a complete solution to this problem, labeled here as the “‘countermajoritarian problem’ of democracy” still remains undiscovered, yet, significantly lowering ballot restriction and leveling the playing field for the majority and minority in regards to the ballot could be a large step in the right direction. The problem is actually augmented by ballot access laws, which primarily stem from violations of constitutional provision that are set off by corrupt philosophies of proper representation and the lust for power, not merely from majority rule.
The first question to answer in regards to nearly all problems, whether governmental or personal, is how and when did the problem originate to understand how to combat it? For ballot access, we must go back to the end of the 19th century in post civil war America. As noted by Oliver Hall, “The first elections in the United States were conducted orally or by a show of hands,” which left no need for any “ballot or ballot access laws” (Hall 416). Yet, it was not long before this form of voting lead to either voter coercion or bribery on Election Day, which in turn demanded a solution to quail such ills; the result was the paper ballot (417). At first the voter simply wrote the name of the candidate they desired for that particular office on a piece of paper and deposited it into the ballot box. Later, each respective political party began to make their own ballots with all their candidates listed, which were produced and put in the hands of the voters by that party (417). Yet, the latter form of ballot casting again lead to bribery and lack of voter privacy, because each party’s ballot was distinctively colored for that certain political party, yet the state still had absolutely no control over the ballot (417).
It was not until 1888, that the modern-day state organized ballot, “known as ‘Australian ballots’” came into existence, “when they were introduced in Massachusetts and New York” (417). This new ballot was adopted soon after by all of the states, and quickly “heralded as a blow against political corruption and for ‘good government,’” allowing for the restoration of voter privacy while including all the candidates for public office on one ballot (Lewis-Beck 419). As Hall states, “[regulation] of ballot access by the state arose only as a necessity incidental of this purpose” (Hall 417). Nevertheless, as for all good things, this new system seems also to have borne its own fair share of unintended and less than desirable consequences, all in the spirit of preserving good government. It was at this point in American electoral history that our now paramount problem of ballot access restrictions crept onto the stage.
Now that the state was over the production of the official election ballot the question became, “how [the state would] decide which candidates to list”, thus ballot access restriction were born out of the state’s decision that certain barriers should be put in place to prevent “unwieldy” ballots (Lewis-Beck 419). Since then, ballot access restrictions have went from nearly tolerable to insanely ridiculous.
Today the states wield this unconstitutional power as though it is important to the very survival of the nation, which is unfounded and philosophically flawed. Currently if a new or third political party wanted to “field a candidate in every race for the U.S. House of Representatives” for their party they “would need to register 1,593,763 members or gather an equal number of signatures” simply to gain access for each candidate to the state election ballot (Winger). Whereas the Republican and Democratic Parties must do nothing to ensure their place on the ballot, being major parties by virtue of size.
When you bring it down to the individual state level, the restrictions placed on third party recognition and unaffiliated candidates vary in great degree from state to state. According to North Carolina General Statute Chapter 163 Section 96(a)(1), the definition of a state recognized political party is any that obtains “at least two percent (2%) of the entire vote cast in the State for Governor or for presidential electors” which varies from one election year to the next (NCGS 163-96). Sadly, this is not the first hurdle a new or third party must jump in the ballot problem in North Carolina. Simply to be eligible for a place on the ballot and to retain that access thereafter, a new political party must obtain signatures on a petition. For this to happen they must comply with NC General Statutes Chapter 163 Section 9(a)(2), which states that petitions must be “signed by registered and qualified voters in this State equal in number to two percent (2%) of the total number of voters who voted in the most recent general election for Governor” (NCGS 163-96). At the same time the petition must be signed by 200 registered voters from at least four of North Carolina’s thirteen congressional districts to be valid (NCGS 163-96). For the 2008 election year, this number reaches approximately 70,000 signatures just for access to the ballot, and once access is granted, if the party receives less than the allotted two-percent of the vote for its candidate for governor or president it loses ballot access and must start the process all over again.
These same numbers and restrictions apply to unaffiliated candidates for any statewide office, including President, Governor, Senator or a host of other offices. Yet even tougher laws are in place for congressional candidates or local level positions who seek election outside of the two major parties as unaffiliated candidates. These brave souls have to obtain signatures equal to four percent of the total number of registered voters in their congressional district which ranges from approximately 14,000 to 21,000 signatures just for one candidate to be placed on the ballot, some of the hardest in the nation (NCGS 163-122).
Yet, it has been worse in other states during different periods. In Florida, a new political party must persuade at least “5% of the state’s voters to register” with their respective party (Winger). It is of notice to add that “not since the early 1900s has a third party in any state ever managed to register 5% of the voters” to their party (Winger). The idea of having in excess of a hundred thousand individuals change their voter registration to one political party within one state may not seem so outrageous, but as Winger says it has never happened since the formation of the state produced ballot, and is not likely to happen any time soon. Therefore, it is imposing an undue restriction on new and third political parties (Winger).
The problem that arises from ballot access restriction is the legality of such restrictions, the implications which they unnecessarily lay on the American political system and the undue burden they put on third parties and unaffiliated candidates for public office. Yet, this is all underlined by the philosophy that birthed these restrictions. Therefore, to understand how to combat these ballot access laws and work toward their decline or abolition we need to take into account the flawed philosophies of those who advocate such restrictions. In other words, we need to understand why, for the most part, the two major parties insist on keeping these laws. We can do this by examining the arguments of those who support ballot access restrictions through their own stated ideas and reasoning.
The first crutch is one that I have repeatedly received from varying State Representatives and Senators, too many parties on the ballot would proliferate voter confusion on Election Day. Personally, I take this as a slap in the face to the American people from those who are supposed to be the public’s servant or representative. In all reality they are saying that the voter is not bright enough to select for himself, from a list of various candidates from varying parties, the one that he believes would best represent him. My question to those representatives of the people, is how are they all of such a higher level of intellect that they can know which two parties serve us best, when we the people are somehow unable to. In fact, Hall states, “[there] is no indication that voters [in states with low ballot access restrictions] experienced greater confusion during the presidential election than did voters in other states” (Hall 420). This was just before 1995, in such states as Tennessee, which “required only twenty-five signatures to list an independent presidential candidate,” the state of Washington, which only required 200, Utah at 300 and Vermont and Rhode Island, which only required 1000 signatures (420). This shows that a slew of candidates for any given office, do not lead to confusion but to choice and the freedom to give one’s own opinion unrestrained.
The second reason they promote is that of the stability of the American political system and the two-party system. This idea is ingrained in the philosophy that our presidential democracy requires a two-party dominated system to be able to function, “and only parliamentary democracies can function effectively with multi-party systems” (Hall 421). According to this viewpoint, to achieve and protect political stability, the government must direct all political activity “into the two major parties”, preventing minor parties from upsetting the so-called balance (420).
The dilemma is that this philosophy is incoherent. The idea that restrictions must be placed on the election ballot to prevent instability in America’s political system is historically unsubstantiated. In fact, these restrictions have negative implications that can now be felt in America’s modern-day political system, most notably that of political stagnation in the form of both candidates we elect and voter turnout.
The American political system has only recently became one where only two parties make up the political system and dominate the electoral process year after year. Historically, the American political system was “one in which two major parties predominated over several minor parties that actively participated in elections” (Hall 422 my emphasis). During these times, minor parties were free to participate and actually worked as agents of change and progress while not adversely affecting the stability of the system, but rather advancing it. It was through minor parties like the Liberty Party and the Greenback Party in the mid and late 1800’s that many important issues such as the “[condemnation of] slavery … curtailment of child labor [and] women’s suffrage” were finally put on the table and eventually became inseparable to modern-day American politics (422). Therefore, it was “the minor parties [that] brought about [the] change that the major parties often resisted” simply through their presence, even if they were not elected (422). It showed the two-major parties that the American people were serious and wanted change. Once the ballot access restrictions were put in place and minor party participation was drastically reduced, and in some states altogether cut-off, the two major parties began to stagnate, or fail to progress. They are now safe from outside competition and the change that a minor party induces, and therefore become complacent with the issues and policies they already advocate and fail to notice others, hence a two-party system where both parties look much alike.
It is also proven that minor parties do not upset the political balance even if they become major parties, and replace another political party. One such case of this is that of the Republican Party. No, the Republican Party was not always a major party. It was not until the mid 19th century that “the Republican Party replaced the Whigs,” then a major party, and yet “the two-party system remained stable” (Hall 422).
The other problem with this philosophy of keeping political stability is the stagnation it creates in the voter. When it becomes apparent that neither of the two major parties are willing to listen to the voters, and that the voter cannot cast his vote for a third party because ballot restrictions, the voter often develops the idea that their vote does not matter or is ineffective for its intended purpose. As Richard Winger states, “[the] presence of viable alternatives beyond the two major parties keeps Americans involved in our democratic process” (Winger). In essence, if there is no candidate that the voter can respect and feel confident with casting his vote for, then the idea that one’s vote is ineffective becomes true. This may seem odd, but in reality, their vote would then support a candidate that does not represent them, often called voting for the lesser of two evils, which is something that many refuse to do. In turn, this leads to low voter turnout, and most the time it is not because the people do not care, but because they do not have a candidate to vote for that represents them.
Other than the misguided or purely corrupt philosophies that have induced restrictive ballot access laws, the other problem that exists is the Constitutionality of such laws. Yes, each state has the authority vested in it to legislate the regulations and order for its respective elections as delegated in Article I, Section 4, and Clause 1 of the United States Constitution, which reads:
The Times, Places and manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. (US Const., Art. 1, Sect. 4, Clause 1)
Yet, this does not give the states unbridled power over the electoral process in each state, even though many state legislators seem to think this. As Mr. Cabot, a member of the Massachusetts Ratifying Convention for the United States Constitution, said in January of 1788:
I believe it to be true – that a free and equal representation is the best, if not the only foundation upon which a free government can be built … I hold “that the right of electing persons to represent the people in the federal government, is an important and sacred right.” (Kurland 255 original emphasis)
To achieve a government of the people and for the people as the founders envisioned, you cannot rightly restrict the peopleaccess to the ballot simply because their party affiliation or the lack thereof. The first Constitutional problem that results from burdensome ballot access laws is that of violating the 1st Amendment. As most American’s know, the 1st Amendment to the United States Constitution protects the people’s right to worship freely, the freedom of the press, to assemble and to petition the government. Yet, it also guarantees the American citizen their God-given right to free speech, stating that “Congress shall make no law … abridging the freedom of speech”, yet it seems the states feel as though this does not apply to them anymore, or that a vote is not a form of speech (US Const. Amend. I).
To the contrary, what greater form of speech do the American people posses than that of expressing who they believe would best represent them, through their vote on Election Day? I cannot think of any greater expression of speech than that of the citizen’s vote. Therefore, to regulate through ballot access laws who is to get on the ballot and who is not, is an abridgement of the American people’s 1st Amendment right to free speech and thus cannot be tolerated. The second Constitutional issue is that of the 14th Amendment to the United States Constitution that guarantees equal protection of the law. Yet, most ballot access laws blatantly violate this amendment, in favor of “promoting the stability of the political system” which as already discussed holds no merit, and give the two major established parties an extreme legal advantage over minor party and unaffiliated candidates for public office (Hall 421).
To bring it to a local level, or rather more personal, election laws that restrict minor party or unaffiliated candidates’ participation on the ballot in the state of North Carolina are also unconstitutional for another reason. Our own state Constitution, as do many others I am sure, states clearly in Article I, Section 10 that “[all] elections shall be free” (NC Const., Art. 1, Sect. 10). This section clearly reverberates the founders’ conviction of free elections and a government by the people and for the people. Our state laws are in violation of Constitutional law on both the federal and state level, as are most states in the union, and must be drastically reduced and hopefully one day abolished. For free elections to truly return to this nation, and to prevent voter and political stagnation on all levels, bring up much needed reform and policy changes and protect the liberty of future American generations, we the people must demand that those we elect (whether from the two major parties or not) reign in ballot access laws and equalize access to the election ballot. Our future depends on it, and true personal freedom will only exists once we have free elections, because then the people’s voice is returned and their government restored to them instead of the establishment politicians.
Hall, Oliver. “Death by a Thousand Signatures: The Rise of Restrictive Ballot Access Laws and the Decline of Electoral Competition in the United States.” Seattle University Law Review 29.2 (2005): 407-448.
Kurland, Phillip B., and Ralph Lerner, ed. “Debate in Massachusetts Ratifying Convention.” The Founders’ Constitution. Vol. 2. Chicago: University of Chicago Press, 1987. 5 vols. p 255.
Lewis-Beck, Michael S., Peverill Squire. “The Politics of Institutional Choice: Presidential Ballot Access for Third Parties in the United States.” British Journal of Political Science 25.3 (1995): 419-427.
North Carolina General Statutes. Chapter 163, Section 96.
North Carolina General Statutes. Chapter 163, Section 122.
Winger, Richard. “The Importance of Ballot Access.” Long Term View. Spring 1994. 26 Feb. 2008http://www.ballot-access.org/winger/iba.html.
© Jordon M. Greene, 2008. Jordon M. Greene is the State Treasurer of the Constitution Party of North Carolina, President/Founder of the North Carolinians for Free and Proper Elections, Campaign Manager for the Bryan Greene 2008 Congressional Campaign Committee and current Political Science student at the University of North Carolina at Charlotte.