Political parties come first, then electoral reform.

Electoral reform has become part of the American political dialogue, and ranked choice voting is the favorite fix. In Breaking the Two Party Doom Loop, Lee Drutman argues that RCV will lead to the development of a multiparty system, and is therefore an essential step in overcoming today’s “toxic” politics.

Certainly the development of multiple political parties would, by definition, eliminate binary, polarized politics. And changing the rules to permit new and stronger political parties is, in my opinion, an essential reform. But the history of electoral reform shows that first you need multiple parties to promote changes to voting rules. That sounds like a paradox, but there is a way forward. America’s onerous and discriminatory “ballot access” rules and mandatory party primaries prevent the development of parties. Eliminating them is a necessary first step.

Drutman’s argument, widely shared by voting reformers, is that America is a two-party system because it has single-member districts with plurality winners: only one elected official per district, and whoever has the most votes is elected, even if a majority of voters have picked another candidate. Drutman ultimately recommends RCV in multimember districts, which is a form of proportional representation used in Ireland and Australia.

Drutman writes, “The United States is a two-party democracy because America still uses the same simple plurality system of elections the Framers unthinkingly copied from the British.” In fact, the 1789 Constitution says nothing about single-member districts, as we can see from Drutman’s own account of how the Whig-dominated Congress of 1842 tried to mandate SMDs instead of at-large plurality voting. But SMD plurality rules do not explain our unique two-partyism. Instead we need to focus on state laws, written a century or two after 1789, that restrict party competition.

A Very Peculiar Two-Party System

There are plenty of other democracies that have two dominant parties, but the United States is in a class of its own. Consider:

• Despite thousands of elective offices, there are only a tiny handful of elected officials who are elected under a label other than “Democrat” or “Republican.”
• The same two parties dominate in Federal elections, all 50 state legislatures, and in all local government elections that allow party labels.
• The same two parties have dominated for almost 170 years.

Virtually all other countries with SMD-plurality regularly have more than two parties competing in elections and more than two represented in the national legislature. Other large countries with SMD plurality exhibit multipartyism to a degree unheard of in the US. For example:

• United Kingdom: In the 2019 elections, 10 parties won seats in Parliament. Although several are regional parties, the UK has had three national parties since the creation of the Labour Party early in the 20th century.
• Canada: The Federal Parliament currently has five parties represented, only one of which is regional.
• Canadian provinces: Eight of 10 have more than two parties represented in the Legislative Assembly. The NDP, the third largest party in Federal elections, is among the two largest parties in five provinces.
• India: In the 2019 general election, at least 650 parties competed, many joining one of five alliances. There were an average of almost 15 candidates per district for voters to choose from.

Parties First, then Electoral Reform

Drutman imagines that 10 states will adopt RCV in multimember districts or another form of proportional representation by 2022 for state elections, after which “new state-level parties” will form. He further imagines that Congress will adopt that same system for national elections by 2025, and seven parties win seats in the U.S. House by 2026. But history shows that this scenario gets the causation backwards: parties come first and then electoral reform.

Reformers often cite the “law” of French political scientist Maurice Duverger: SMD plurality voting rules explain the US two-party system. But Duverger only claimed a tendency to produce two main parties or coalitions: “A given electoral regime does not necessarily produce a given party system; it simply exerts an influence in the direction of a particular type of system; it is a force, acting in the midst of other forces, some of which move in an opposite direction.” Further, he understood that the causality can run both ways: “It is also clear that the relationship between electoral and party systems is not a one-way phenomenon; if a one-ballot vote tends toward a two-party system, a two party system also favors the adoption of a single ballot voting system.”

Political scientist Josep Columer gives us hard data behind Duverger’s conjecture about causality. Columer studied 87 countries with at least 1 million population and democratic elections and found 37 cases of changes from single member districts to proportional or semi-proportional systems. Prior to the change in voting rules, the countries had on average 3.9 effective political parties. After the change, the effective number of parties increased to 4.3. Columer finds “that multiparty systems in votes already existed before the introduction of PR and were confirmed afterwards with the corresponding seats, rather than newly emerging.” He concludes that “multi-party systems occur before and not only subsequent to the adoption of proportional representation rules.” Furthermore, the existence of multiple parties appears to be a necessary factor for a switch to PR. Columer’s model suggests that “we can expect that changes in favor of proportional representation will not take place with values of the effective number of parties below 2, for lack of powerful actors with an interest in such a change.”

Although more parties are necessary to prompt a switch to a more proportional system, they are not sufficient: he finds that countries using majority rules have on average 3.6 parties. So the real question is not why America still has a non-proportional electoral system, but why it has exactly two political parties. For the answer we need to look to their historical development.

The Development of American Political Parties

Patronage Parties

Sometimes it takes an outsider to really see how a system works. Oxford Professor Alan Ware is the foremost expert on the evolution of the American party system. His 2011 work Political Conflict in America provides a useful summary of how America got a two-party system in the 19th century, and how it persisted into the 20th, despite the elimination of its reason for being. It is worth quoting at length:

“In the 1830s, the Jacksonians introduced a thoroughgoing model of party-based patronage. . . . Not only were all public appointments made conditional on party service, and the number of such jobs expanded, but most forms of government contract were granted in the same way.” (p. 98)

“Having access to patronage required that elections be won and, in turn, that made possession of the resources needed for competitiveness in mobilizing the party faithful essential. The drive to obtain those resources meant that, although the United States had many wholly separate layers of government, partisans in each of the levels had an interest in cooperating with fellow partisans at other levels. Patronage acted as a kind of glue in the party system. The pursuit of self-interest produced intraparty cooperation between the various levels, and that precluded the development of wholly distinct parties at the state level, let alone at the city level.” (pp. 98–99)

“Any third and other parties were “squeezed” by the two large parties as the latter could offer benefits to political activists that smaller parties could not. To obtain those benefits a party had to win, and then retain, office, and only the two larger parties were plausible vehicles for that. There were several “other” parties in the nineteenth century, but they were formed to promote a particular cause at a given time and they could never develop the organizational structures that would ensure permanence.”

“While this provides an explanation of why the distinctive American party system should have developed in the way that it did, it cannot explain why it persisted. The patronage regime on which the whole edifice was constructed was completely dismantled during the twentieth century, and this should have led to a major transformation of the party system during that century. But it did not, and this prompts the obvious question of “why not?” (p. 100)

Entrenchment

Ware describes three types of state laws that had the effect of entrenching the Democrats and Republicans as the only two parties:

Anti Fusion

“The major parties had started to entrench their position through laws, and the administration of laws, that discriminated against third parties. They did so long before the political networks based on the patronage system disappeared completely.” (p. 100) “Many states introduced legislation prohibiting “fusion.” “Fusion” was a device whereby a candidate could be supported by more than one party and thus have his name listed on an official ballot twice or more. The impact of “antifusion” legislation was remarkable. It became more difficult for state-based third parties to act as they had previously; in the first half of the next century the position of the two major parties was consolidated.” (p. 101)

Party and Candidate Qualification

“The other important legislation emanated from the switch to the widespread use of official ballots . . . Before, parties distributed their own ballot papers, but when printing and distributing ballots became the responsibility of governments, the issue arose as to which candidates’ names would appear on the ballot. Democratic and Republican politicians wanted to make it easy for their candidates to have access to the ballot and correspondingly make it difficult for any other candidates to do so. Consequently, the typical solution adopted in state legislation was to allow more direct access to the ballot to any candidate who had been nominated by a major party, while requiring all other would-be candidates to obtain the written support of a specified number of people who had the right to vote. Since in most cases any disputes over the legitimacy of some of those individuals providing that support would be determined in courts where judges were partisan appointees, filing for the ballot became harder still for third parties and third candidates. Some states also required these other candidates to file for ballot access so far in advance of an election that many potential challenges to the Democrats or Republicans, arising from controversial candidates or policies within those parties, became impossible.” (p. 101)

State-Run Primary Elections

“A third factor was the consequence of the widespread introduction of the direct primary by the major parties in the early twentieth century. . . . Although in many parts of the northeast its use did not rapidly reduce the control that party elites had over the nomination process, the direct primary often provided an attractive option to that of a third-party campaign for those wanting to oust incumbent politicians. You could get the equivalent of your “day in court” (i.e., in the electoral arena) just as much by entering a primary election as you could by filing for the general election. The registration requirements were usually less demanding and, if party elites were going to get their way eventually they might be just as likely to do so at a general election.

Presidentialism

A “generally accepted explanation of the American two-party system” is its presidential system, unlike a parliamentary system, where the executive is elected by the legislature (Arend Lijphardt, Electoral Systems and Party Systems, pp. 130-134.) Alan Ware disagrees. In presidential elections, he writes:

“just two candidates take all but a small percentage of the vote in the vast majority of contests. However, this squeezing of the votes that might go to other candidates cannot explain why there are just two parties. If there happened to be five or seven parties in America, for example, they would have a strong incentive to create alliances with other parties in advance of a presidential election so that no more than two candidates become contestants in that specific contest. . . .The incentive provided by American presidentialism is to restrict party competition for the one office, rather than to eliminate all but two parties.”

There are other countries with a presidential system and a legislature elected by plurality SMD. A summary of their most recent legislative and presidential elections reveals:

• The median number of parties competing for the national legislature is 12.5 and the median number of parties winning seats is 6.
• Only Ghana has a two-party system similar to the US, with exactly two parties winning seats in the legislature (and even there, minor parties won a few seats in the two previous elections, which has not occurred since 1948 in the US).
• In half of these countries the top two parties received more than 95% of the presidential vote — even though many parties won seats in the legislature (for example, 10 parties in Kenya and 20 in Nigeria).
• In Ghana, Kenya, Maldives, and Zambia, virtually all voters chose the top two presidential candidates even though a second round is required if no candidate gets a majority. Conversely, 17% to 36% of voters in the Philippines, Gambia, and Malawi didn’t choose one of the top two finishers even though there is only one round. These findings suggest that other factors (e.g. party organization and allegiances) can trump electoral rules.

Even if the presidentialism explanation is “generally accepted,” Lijphardt found little evidence in support of it in his study. And the data I present here clearly show that presidentialism does not necessarily create a two-party system in the American style.

Increasing Discrimination Against New Parties

Ballot access became increasingly hard for new and small parties over the course of the 20th century. As Ware describes, with the adoption of the official ballot, it became standard practice to permit major parties to qualify automatically, but to require petitioning for other parties. Initially the test for “major party” status was a small share of the vote, such as 3%, and the petition requirement, if any, was in the range of 500 to 1000 signatures.

According to Ballot Access News editor Richard Winger, “Most restrictive changes in the 1930s were made to thwart the Communist Party.” Winger discovered that “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.” Also in 1931, Illinois increased the petition requirement from 1,000 to 25,000 signatures. After the Communist Party lost a challenge to these laws in Federal court in 1936, “the legislators of other states felt free to increase the requirements, any time a particular third party irritated or offended state officials.”

From 1932 to 1968, 12 states made it much harder to register a new party. The first major Supreme Court ballot access case, from 1968, stressed the importance of equitable access to the ballot, but in practice failed to provide any standards and implicitly sanctioned onerous requirements. A second case in 1972 sanctioned even greater discrimination. As a result, between 1969 and 1983, 20 more states made it much harder to register a new party.

So You Want to Start a New Political Party?

State legislators have devised many ways to keep new parties off ballots.Most states ask prospective new parties to submit a petition signed by a large number of registered voters. Perhaps because requiring 200,000 signatures might sound unreasonable, states often express requirements as a percent of registered voters or of the vote in the previous statewide election. Other obstacles include requirements for minimum geographic distribution of signatures, restrictions on who can circulate petitions, requirements for notarization, and short time periods for signature gathering.

Some states ask prospective parties to enroll a minimum number of voters in the state-run party registration system. A voter who registers under the new party name is publicly declaring his or her affiliation and in some states gives up the right to vote in Democratic or Republican primary elections — for only the possibility of an opportunity to vote for a candidate of that party.

If a party manages to collect enough signatures or accumulate enough enrolled voters, party candidates still need to pay a filing fee and/or gather more signatures.

Getting your preferred party name on the ballot can be very expensive. For example, in Tennessee, you can qualify for the U.S. House ballot by collecting only 25 signatures, but if you want to be listed on the ballot under the name of a new party, you will first need to submit a petition with signatures equaling 2.5 percent of the total number of votes cast for governor — currently 56,082. If you hire petitioners at $5 per signature, that will cost you $280,000. Then to keep the party name you will need to run a candidate for governor and get at least 5% of the vote or you will have to start the process over again. It could be worse: until 2014 Tennessee required twice as many signatures to get on the ballot and a test of 20% of the vote to stay on.

With 50 different systems, there is no rationality to the varying requirements — even for the same office. The filing fee for U.S. House is often $500 or less, but in many states it is 1% of the annual salary ($1,740). Florida requires 6% of the annual salary ($10,440). Some states require few or no petition signatures for major party candidates, but some require 1,000, and Massachusetts requires 2,000. In 2018, a new party seeking to run a candidate in each of the 435 U.S. House districts would have needed to gather more than 1.1 million signatures!

Voters are Sore Losers

Discrimination against new parties is tolerated because major party primaries are open to anyone. Ballot discrimination doesn’t prevent candidates from running for office as much as it prevents candidates from using the party name of their choice. Given unequal rules for ballot access, candidates challenging entrenched incumbents might want to attempt a two-prong strategy: first compete against the incumbent in a legacy party primary, and thereby earn some votes, name recognition, and legitimacy. Second, having lost, enter the general election as a new party candidate facing the much larger electorate. However, all but three states have laws (more than half enacted since 1970) prohibiting this unwanted competition — often by establishing early filing deadlines that make it impossible to enter the general election after having been defeated in a primary. But a party primary election is not a first round of a public election, it is an election to determine who will represent a party. If a candidate fails to win the nomination of one party, why should the state tell her that she is not allowed to compete as the candidate of another party? Perhaps because the state laws are crafted by politicians who don’t want to have to compete for votes.

Party Registration in Peer Democracies

Peer democracies have uniform procedures for the registration of political parties that require no more than a modest fee and a listing of 250 to 500 members (see table below). For example, a prospective new party in Canada needs only to provide registration documents including the names of 250 supporters and is then eligible to authorize candidates to use the party name in every Federal election district in the whole country. (All candidates must submit 100 signatures of district residents.) That’s a far cry from the 1.1 million signatures a party needs to be able to offer candidates in every U.S. House district.

None of the peer countries makes a distinction in party registration requirements based on the party’s prior performance. Further, filing fees are refundable based upon a candidate’s future performance — a reasonable way to keep costs low for serious (if long-shot) candidates while deterring completely frivolous ones.

Federal Party and Candidate Regulation

Fixing democracy is more on the agenda today than it has been since the Civil Rights Movement forced the adoption of the Voting Rights Act in 1965 and maybe since the Progressive Era — at least among Democrats, as shown by the passage of H.R. 1, a comprehensive electoral reform bill, in the U.S. House in 2019. A future version of H.R. 1 could be a vehicle for adopting national political party registration and uniform ballot access rules with the following features:

1. A national registry of political parties. Congress should give the Federal Election Commission the duty to certify national parties for Federal elections. After a study of international best practices, the FEC will develop uniform rules that would apply to all parties equally. (Currently parties must register with the FEC, but a political party is defined as one that is qualified for the Federal ballot under state law.)

2. Uniform national rules for candidates to qualify for Federal elections. The FEC will create rules for candidates to qualify for Federal election ballots, superseding state laws. All candidates would follow the same rules, regardless of party affiliation, including those with no party affiliation. (Candidates already register with the FEC for the purposes of campaign finance.)

3. Authorization required for use of political party name. A candidate may only use the name of a Federally registered party with the permission of an official representative of the party. This rule combined with the one above means that once a candidate qualifies for a Federal election under FEC rules, a state may not deny access to the ballot, or provide additional hurdles, and therefore may not require candidates to enter a party primary election unless the party consents to the process.

4. Equitable ballot access rules for all elections. Congress should also require that states create equitable ballot access rules for non-Federal elections.

In addition to opening up the process to more parties, these reforms will allow political parties to act like political parties by controlling who may seek office in the name of the party. The key is the requirement that political parties must authorize the use of their brand name — a situation that exists almost nowhere in the U.S. today. There are many reasons why it is important for democratic governance to allow parties to control their brand and to compete freely, which I will detail in a subsequent post.

Can Congress Do That?

The U.S. Constitution says that “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.” The second clause gives Congress wide latitude in setting rules for Federal elections, although the situation is less clear for Presidential elections (see my previous article).

Over the past 50 years, the justices of the Supreme Court, having decided to dabble in political science, have frequently ruled that the supposed benefits of stability, moderation, and simplicity justify discriminatory ballot access laws. Congress can freely ignore their rulings: it has clear authority to set uniform standards for Federal elections, and it can also prohibit states from discriminating against political parties in state elections, based on its own interpretation of the First and Fourteenth Amendments. Congress did just that in the Voting Rights Act, when it prohibited the use of literacy tests as a voter qualification, even though the Supreme Court had upheld their use six years earlier. Already, H.R. 1 forbids states from prohibiting ex-felons from voting, despite a (bad) Supreme Court decision to the contrary.

Too Many Names on the Ballot?

Voters can handle more than two names on a ballot. An “open seat” for U.S. House commonly attracts many candidates: the 2016 Republican primary for NC-13 included 17 candidates. There were often that many candidates on presidential primary ballots in 2016 and 2020. But unlike a party primary, candidates in a general election can use party names to give voters cues, and the party name will be meaningful, since its use will be authorized by the party.

More Plurality Winners?

With more candidates, there may well be more winners who have less than 50% of the vote. Most Americans probably don’t think that is a problem: they are used to the concept of whoever has the most votes wins, no matter how few. Plurality victories happen in important elections frequently today: in the NC-13 primary election mentioned above, the winner had only 20% of the vote.

The bigger problem is too little competition: in 2018, 33% of state legislative contests had only one major party candidate (a significant improvement over 2016, when the figure was 42%). In most congressional elections, there is no significant competition to the incumbent — the only exceptions are a small number of competitive seats and when an incumbent declines to run again — and then typically only in the incumbent’s party’s primary (see my report on America’s Primary Problem).

Over time, the regular participation of small but viable political parties would make the need for electoral reform more obvious in two ways. First, there may be more plurality victories that are perceived to be unfair because the majority group of voters splits its votes over two or more candidates. Second, it may become apparent that a small party can earn a small but significant share of the national vote and yet receive few or no seats. These factors will create political actors with an incentive to change the electoral system — either small parties seeking fairness or larger parties seeking to avoid vote splitting.

Would Changing Ballot Access Rules Make Any Difference?

The conventional wisdom is that Americans will not vote for anyone who is not labeled a Democrat or Republican. To an extent, that’s true: under today’s discriminatory rules, only fringe parties try to jump the outrageously unfair and unnecessary barriers that states have imposed on candidates that try to use new party names. Americans by large majorities think new political parties are needed — but they have not been given the opportunity to vote for them. With equitable and uniform ballot access rules, new parties will emerge and voting habits will change. And that will put electoral reform such as multiwinner RCV on the agenda.