Is it time for a national ballot access law?

Strict originalist interpreters of the US Constitution will note that the mechanics of voting in local, state, and Federal elections are left up to the States to decide. These have, of course, been modified through amendment (15th [race], 19th [Gender], 24th [Poll taxes], 26th [18 year-old vote]), legislation (Voting Rights Act of 1965), or judicial decision (NC Libertarian and Green Parties v. State of North Carolina, 2008), so it's not as if such issues were untouchable.

In Delaware, since 2002, the number of political party changes away from the Democratic or Republican parties to "independent" or "minor" political parties has always rivaled if not exceeded the number of people joining the Democratic Party, which is traditionally listed as the big winner in voter registration.

But in the First State, and nationwide, attempting to gain ballot access for any party besides the Republicans or Democrats has of course been vigorously squashed by the two major branches of the Demopublican Party.

Here are just a few of the excesses involved in ballot access rules:

Georgia:
Georgia in 1943 required new party and independent candidates to submit a petition signed by 5% of the number of registered voters in order to get on the ballot for any office! Previously, any party could get on the ballot just by requesting it. (And all petition signers are subject to subpoena to determine if they actually signed.) Result: since 1943, zero third-party candidates have ever managed even to get on the ballot for a Georgia U.S. House of Representatives seat (in about 800 races total).

Florida:
The ballot access laws for third parties and independent candidates have been very severe since 1931. Since then only two third party candidates for the U.S. House of Representatives and only one for the U.S. Senate have managed to get on the ballot. (And there has been no third party or independent candidate on the ballot for Governor of Florida since 1920.) As of 2005, a filing fee of 7% of the annual salary of the office is also required unless the candidate is a pauper, while a third party or independent candidate for any statewide office (other than US president) needs 196,255 valid signatures – beyond what any independent candidate in any state in the USA has ever obtained.

Arkansas:
New parties, to get on ballot, require by 1971 law a petition signed by a number of voters exceeding 7% of the last vote cast. A court held that unconstitutional in 1977, so they changed it to 3%. Also, the petition must be completed in four months during the odd year before an election year. No political party has ever succeeded in getting on the Arkansas ballot, under either rule.

West Virginia:
This one is an elegant "catch-22." Third party and independent candidates for office (other than US president) must circulate their petition before the primary. It is a crime for any petition circulator to approach anyone without saying "If you sign my petition, you cannot vote in the primary." Furthermore, it is impossible for third party or independent candidates (not running for US president) to ever know in advance if they have enough valid signatures because if anyone who signs a candidate's petition then votes in a primary, the signature of that person is invalid. For candidates, it is impossible to know who will actually vote in the primary, and it is too late to get signatures after the primary. Also: petition circulators cannot leave their home precinct.

Minnesota:
1961 law requires petition to be completed within a 2-week period.

Maryland:
1941 law requires all petition signers to be published in one newspaper in each county in the state, by the collector of the petitions.

Or how about North Carolina, wherein the Libertarian Party needs over 107,000 signatures to remain on the ballot?

States (as the mouthpieces for political parties) generally argue that they have a responsibility to avoid the excess clutter and confusion that would attend ballots with too many candidates and parties listed. That's an outright crock and everybody knows it. What the State parties want to avoid is losing voters to other parties. This, naturally, is the issue that is causing so many people to criticize Ralph Nader for choosing to run for president again, as David McCorquodale of the Delaware Green Party points out in today's Snooze Journal:

The News Journal chose to print a cartoon and an editorial critical of Ralph Nader's decision to run for president as an independent. A man who has spent his life defending the rights of consumers was trashed in the cartoon as a "bottom-feeder," as if he were somehow profiting from this decision. The editorial said he was "ruining his reputation."

If it's a reputation for challenging the status quo, then Nader is adding to it. The editorial referred to the myth that Nader's campaign in 2000 gave George W. Bush the presidency. Al Gore actually did win that election, but Bush took the presidency by 537 votes. The Democratic Party allowed itself to be steamrolled.

Here's the larger point about 2000. Isn't it possible that of the 95,000 votes Nader got in Florida, some people wouldn't have voted at all if Nader had not been on the ballot?

One of the issues the Nader campaign will concentrate on is ballot access. His campaign in 2004 was hindered by the Democratic Party. In Pennsylvania, ballot petition signatures of the Nader campaign were challenged. When a court ruled in favor of the Democratic Party and denied Nader ballot status, it also charged the Nader campaign more than $100,000 in court costs, even though usually costs are only levied against frivolous lawsuits. It turns out most of the judges involved in this ruling had ties to the Democratic law firm that filed suit.

In 2006, the Green Party of Pennsylvania saw a similar effort to deny ballot access when U.S. Senate candidate Carl Romanelli had most his petition signatures ruled invalid by Democratic judges and was fined $80,000. He faces the possibility of jail because of his inability to pay this fine, levied because he sought to run for political office.

Here's the grim reality: the pursuit of ballot access based on a state-by-state strategy is doomed to failure. There will always be new hurdles raised, and the compartmentalization of such efforts makes it difficult if not impossible for Greens in Ohio and Constitutionalists in Oklahoma to work together with Libertarians in North Carolina to achieve the desired end.

Ballot access will require an amendment to the US Constitution.

Here's the possible text: "No state shall deprive any political party of the right to be listed on the ballot for local, state, or Federal elections provided that said political party shall have either presented a petition with the verified signatures of at least 5,000 registered voters, or shall have placed at least one candidate for statewide political office on the ballot within the past four years of the current election."

Would this result in 40,000 political parties on the ballot? The evidence suggests not:

Q. Would anything horrible happen if we just let anybody get on any ballot just by asking?

A1. Not necessarily. Arkansas had exactly that policy up to 1997. The most US Presidential candidates Arkansas ever had on ballot was 13 (in 1996).

A2. But possibly. The 2003 California Governor-recall race won by Schwarzennegger had minimal requirements to get on ballot – and 135 people ran.

So we conclude that some requirements are necessary to stop there from being ridiculously high numbers of contenders. But not much.

In all US history since the age of preprinted ballots began (about 1890) up to 2005, there have only been two cases where a ballot for some statewide office (or US presidential race) has ever had more than 10 candidates on it, provided at least 2500 signatures were required to get on ballot (and even in those cases, there were ≤12 candidates).

Of course, such an amendment would be an exceptionally hard sell (on the order of term limits, one supposes) in a Congress dominated by--you guessed it--Republicans and Democrats. However, the ability to make ballot access a national political issue would at least raise the question: Why does our Democracy fear too many candidates?