Fair Treatment of Political Parties: the Gap Between International Standards and US Practice

In 1990, following the collapse of the Communist countries of Eastern Europe, the Organization for Security and Co-operation in Europe (OSCE) convened a meeting of its member states, including all the countries of Europe (except still-communist Albania) plus the Soviet Union, Canada and the United States. The member countries produced an agreement on human rights and fundamental freedoms in which they pledged “to ensure that their laws, regulations, practices and policies conform with their obligations under international law and are brought into harmony with the provisions of the Declaration on Principles and other CSCE commitments.” With regard to the participation of political parties, the countries agreed that they would:

(7.5) — respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination;

(7.6) — respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities.

Despite being a signatory to the agreement, the United States routinely violates these commitments. The OSCE provides detailed guidance for implementing these principles as part of election administration. With respect to the placement of political parties on the ballot, the OSCE guidebook (2013 edition) says:

A founding principle for democratic elections is that of genuine electoral competition among political parties and candidates. This can only be achieved if there is meaningful opportunity for political parties and candidates to secure their names on the ballot through a registration process that is predictable, fair and reasonable. This issue is determined not only by the legislation regulating elections, but also by the legal provisions governing the formation of political parties. The law regulating the formation and registration of political parties should not establish any unreasonable requirements in this process.

Further, the guidance says, “The legal framework should provide for a uniform registration process that is the same for all candidates and political parties” (emphasis added). The OSCE discusses several means of ballot access, including the payment of a monetary deposit, adding:

such deposits should be of a sufficient sum to discourage frivolous parties and candidates while, at the same time, not being so high as to prevent legitimate parties or candidates from obtaining access to the ballot. Additionally, it is considered good practice to return monetary
deposits to parties or candidates receiving a certain number or percentage of votes. The threshold required for a refund should be reasonable.

A refundable monetary deposit — conditional on the achievement of a certain minimal percentage of the vote such as 1% — is a good way to discourage frivolous candidacies without discouraging long-shot candidacies. It is also much less subject to abuse than a scheme of signature requirements where it is possible to invalidate signatures based on technicalities.

Ballot access in other democracies is much easier and political parties are treated equally. For example:

  • In Canadian Federal elections, every candidate needs to pay a CND$1,000 (US$767) deposit and collect 100 signatures of electors in the district (50 in more remote districts). The deposit is refundable after the election if the candidate shows proof of compliance with election laws. These requirements are identical for all candidates, regardless of party affiliation.
  • In the United Kingdom, every candidate needs to pay a £500 (US$663) deposit and collect the signatures of 10 electors. The deposit is refundable if the candidate receives at least 5% of the vote.
  • In Australia, candidates must either be endorsed by a registered political party or collect 100 voter signatures. The filing fee is AU$1,000 (US$750) for House candidates and AU$2,000 (US$1,500) for Senate candidates, refundable if the candidate gets more than 4% of the vote. Registering a political party is straightforward: the main requirement is the enrollment of at least 500 members who are not members of another party.

In the United States, ballot access is completely different. Even for Federal elections, each state sets its own rules. In every state the law distinguishes between “major” parties and other parties. Major parties generally have automatic ballot access, or at least have much less stringent requirements than all others. Of course it would be transparently unfair to write the names of the major parties into the law. Therefore “major party” status is based on the share of the vote received at the previous statewide election, typically a minimum of 10% or 20%. In a few more lenient states (e.g. Vermont and Oregon), 5% of the vote is sufficient to achieve major party status.

This idea of major party status goes back at least as far the Minnesota direct primary law of 1899, which gave a party that had previously won at least 10% of the vote an automatic place on the ballot. Other parties has  to collect the signatures of 10% of the registered voters. Independent (non-party) candidates had to collect the signatures of 5% of the registered voters (Alan Ware, The American Direct Primary, p. 112).

Occasionally the official parties are victims of their own major party status rules. In 2010, the Democrats came close to losing major party status in Colorado, as did the Connecticut Democrats in 1990. Also in 1990 the Virginia Democratic Party would have lost major party status, but the party-controlled legislature amended the law to require a minimum share of the vote in either of the previous two elections. This example shows that the laws are not evenhandedly applied, but are specifically designed to disadvantage new parties.

Beyond the sheer number of signatures that states require for ballot access: “states often make the gathering of petitions dramatically more burdensome through related regulatory provisions such as filing deadlines early in the electoral cycle, and cumbersome signature verification requirements.” The window for gathering signatures may be narrow, the filing deadline may be months before the major parties determine their candidates, and the requirements for a “qualified” signature may be strict. Some states let anyone challenge signatures submitted. Sometimes the signatures do not count if they are from voters registered with another political party. Almost always the signatures must be from a person currently registered to vote in the relevant district, and in statewide elections, some states have a distributional requirement for a certain number of signatures in each congressional district. There are thus numerous reasons that a signature may be deemed invalid. Here is a handy state-by-state listing of requirements for ballot access for presidential electors. (New York has some of the worst ballot access rules in the country — and unusually, the burdensome rules apply also to major party candidates, and thus have created an industry of election lawyers and a pre-election contest in which the game is to knock potential opponents off the ballot.)

The U.S. Supreme Court first took up the issue of ballot access for political parties in 1968, in Williams v. Rhodes. The American Indepent Party, a vehicle for Governor George Wallace to seek the presidency, sued the state of Ohio claiming that the ballot access requirement (collect voter signatures equal to 15% of the vote cast at the last gubernatorial election) was a violation of equal protection. The AIP had managed to collect more signatures than the 430,000 required, but only months after the deadline, so it was denied a place on the ballot. The case was also combined with the complaint of the Socialist Worker Party, which did not attempt to collect the signatures but claimed that the Ohio procedure was unconstitutional. Writing for the majority, Justice Hugo Black gave a clear statement of why restrictive and inequitable ballot rules are antithetical to the basic political rights of a democracy:

No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence, and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot, and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that “only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.” NAACP v. Button,371 U. S. 415, 371 U. S. 438 (1963).

Justice Black then forcefully rebutted the state’s claims that erecting barriers to new parties is necessary for political stability, majority winners, and preventing voter confusion, as well as the argument that the opportunity to participate in the major parties is sufficient:

The State has here failed to show any “compelling interest” which justifies imposing such heavy burdens on the right to vote and to associate.

It claims that the State may validly promote a two-party system in order to encourage compromise and political stability. The fact is, however, that the Ohio system does not merely favor a “two-party system”; it favors two particular parties the Republicans and the Democrat — and, in effect, tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.

Ohio makes a variety of other arguments to support its very restrictive election laws. It points out, for example, that, if three or more parties are on the ballot, it is possible that no one party would obtain 50% of the vote, and the runner-up might have been preferred to the plurality winner by a majority of the voters. Concededly, the State does have an interest in attempting to see that the election winner be the choice of a majority of its voters. But to grant the State power to keep all political parties off the ballot until they have enough members to win would stifle the growth of all new parties working to increase their strength from year to year. Considering these Ohio laws in their totality, this interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed.

The State also argues that its requirement of a party structure and an organized primary insures that those who disagree with the major parties and their policies “will be given a choice of leadership, as well as issues,” since any leader who attempts to capitalize on the disaffection of such a group is forced to submit to a primary in which other, possibly more attractive, leaders can raise the same issues and compete for the allegiance of the disaffected group. But while this goal may be desirable, Ohio’s system cannot achieve it. Since the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected “group” will rarely, if ever, be a cohesive or identifiable group until a few months before the election. Thus, Ohio’s burdensome procedures, requiring extensive organization and other election activities by a very early date, operate to prevent such a group from ever getting on the ballot, and the Ohio system thus denies the “disaffected” not only a choice of leadership, but a choice on the issues, as well.

Finally, Ohio claims that its highly restrictive provisions are justified because, without them, a large number of parties might qualify for the ballot, and the voters would then be confronted with a choice so confusing that the popular will could be frustrated. But the experience of many States, including that of Ohio prior to 1948, demonstrates that no more than a handful of parties attempts to qualify for ballot positions even when a very low number of signatures, such as 1% of the electorate, is required. It is true that the existence of multitudinous fragmentary groups might justify some regulatory control, but, in Ohio at the present time, this danger seems to us no more than “theoretically imaginable.” No such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case.

Of course, the number of voters in favor of a party, along with other circumstances, is relevant in considering whether state laws violate the Equal Protection Clause. And, as we have said, the State is left with broad powers to regulate voting, which may include laws relating to the qualification and functions of electors. But here the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.

In this first ruling on ballot access Justice Black made almost all the important points in favor of political parties that have bedeviled subsequent cases. First, there is a right to form political parties and to have those parties treated equally, as a well as a right of voters to have a choice of candidates. Furthermore the possibility of competing in party primary elections and otherwise working within an existing party does not compensate for the lack of; basic political rights. He failed to note that states concerned about the problem of plurality winners can require a majority through the use of two-round elections or ranked choice (instant run-off); apparently a draft of the opinion included such a reference, but Justice Black later deleted it in response to a comment in Justice Stewart’s draft dissent (later deleted) that the Court should not be seen to be mandating run-off elections. Note also that even with only two candidates in a general election, there can be (and commonly are) plurality winners in party primary elections, which are frequently where the actual selection of officials is made, particularly in the many “safe” districts which are not competitive.

In a concurrent opinion, Justice William Douglas claims that the entire structure of regulations can only be interpreted as having been created to keep out new parties:

Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes so as to restrict candidacy to names on the ballot; it has eliminated all independent candidates through a requirement that nominees enjoy the endorsement of a political party; it has defined “political party” in such a way as to exclude virtually all but the two major parties.

A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary of State in February. That is not all: having compiled those signatures, the candidate must further show that he has received the nomination of a group which qualifies as a “political party” within the meaning of Ohio law. It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.

To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county central committee; two of its members from each congressional district to a state central committee; and some of its members as delegates and alternates to a national convention. Moreover, those of its members who seek a place on the primary ballot as candidates for positions as central committeemen and national convention delegates must demonstrate that they did not vote in any other party primary during the preceding four years; and must present petitions of endorsement on their behalf by anywhere from five to 1,000 voters who likewise failed to vote for any other party in the last preceding primary. Thus, to qualify as a third party, a group must first erect elaborate political machinery, and then rest it upon the ranks of those who have proved both unwilling and unable to vote.

Having elected a central committee, the group has it convene a state convention attended by 500 delegates duly apportioned throughout the State according to party strength. Delegates to the state convention then go on to choose presidential electors for certification on the November ballot, while elected delegates to the national convention go on to nominate their candidate for President. Ohioans, to be sure, as a result of the decision below, enjoy the opportunity of writing in the man of their choice on the ballot. But, in a presidential election, a vote for a candidate is only operative as a vote for the electors representing him, and where the State has prevented that candidate from presenting a slate of electors for certification, the write-in vote has no effect. Furthermore, even where operative, the write-ins are no substitute for a place on the ballot.

To force a candidate to rely on write-ins is to burden him with disability. It makes it more difficult for him to get elected, and for the voters to elect him. These barriers of party, timing, and structure are great obstacles. Taken together, they render it difficult, if not impossible, for a man who disagrees with the two major parties to run for President in Ohio, to organize an opposition, and to vote a third ticket.

Although this first Supreme Court ruling on ballot access was a promising start, unfortunately it completely failed to overturn the “invidious discrimination” that has since become even more entrenched in the U.S. political system. Chief Justice Earl Warren dissented from Williams because he felt that the rushed process–the case was heard and decided in a week because of the deadline to print ballots for the November election–was not sufficient for the court to produce a sound decision on an important matter. It turns out that Justice Warren’s concerns were completely justified.

Unlike Reynolds v. Sims, which held just four years earlier that all legislative districts must have nearly equal population,  Williams v. Rhodes established no clear standard that lower courts could enforce. Justice Black mentioned in passing that “1% of the electorate” represents a “very low number of signatures.” He could have have offered this number as a standard. As it turns out, the OSCE advises that, if signature-gathering is a means of ballot access, “the required number of signatures should not exceed one per cent of the total number of voters registered in the constituency.” Better still, the Court could have decided that equal protection with regard to election laws means simply that all parties must be held to the same standard, with no distinction between “major” and any other party with regard to ballot access procedures–as advised by the OSCE. Legislatures are much less likely to make it very difficult for parties to appear on the ballot if they know that the rule applies to all parties.

The complete failure of that attempt to make good on the bold pronouncements of Williams v. Rhodes, and the subsequent legal entrenchment of discrimination against non-official parties will be described in a subsequent post.

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