Saturday, April 17, 2010

Legalized Monopoly - Ballot Access Laws in America

Except for the board game of the same name, Americans have generally railed against the power of monopolies. With their ability to maintain predominance over the production and sale of some product, monopolies are seen as having the power to destroy competition and fairness. However, few realize this concept can extend beyond the marketplace and into our government. Incumbent elected officials, in the guise of Republicans and Democrats, have managed to secure a monopoly on our political process. Their access to less stringent ballot restrictions, a friendly bureaucracy, and favorable court decisions has created a situation where independent or minor party candidates have an institutional disadvantage in politics which subverts the concept of democracy in our society.

In many states, minor party and independent candidates face the unique barrier of having to gain ballot access solely by petition. This is the tedious process of contacting one registered voter at a time to sign his or her name on a petition to allow the candidate in question to simply appear on the ballot. Many different restrictions can make this a Herculean task. Sometimes, an excessive number of signatures are required to gain ballot access. This is the case in Georgia, where a 1943 law requires the signatures of 5% of registered voters on a petition in order for minor party and independent candidates to gain ballot access. Since 1943, no minor party or independent candidate has appeared on the ballot in Georgia for the United States House of Representatives. However, there have been plenty of Republicans and Democrats, who are only required to pay a filing fee to appear in the primary election. Other restrictions make the process even more difficult for minor party or independent candidates. Texas is considered a difficult state for minor parties because of the “primary screen-out”. Essentially, the number of signatures is not the problem here; instead, the problem is who can sign. If a registered voter participates in a Republican or Democratic Party primary, he or she is barred from signing a nominating petition for a minor party or independent candidate. This barrier is notable when one considers that the act of signing a petition to place a candidate on the ballot is different than actually voting for said candidate. However, the two political parties in power cannot grasp this nuance.

Beyond the mechanics of the bias in our political system toward the two major parties, there is a substantial bias in implementation of election law. One particularly notable example occurred in Texas in the 2008 presidential election. Only one minor party candidate obtained ballot access here, Libertarian Bob Barr. Besides this candidate, only the two major parties were assumed to appear on the ballot. However, it became apparent after the deadline of August 26th that only Bob Barr had completed all the necessary steps to file for ballot access. With both major parties missing the deadline to certify their candidates, one would think that only Mr. Barr would appear on the ballot for the race in Texas. However, the Secretary of State of Texas stated that because she had already planned to place the Democratic and Republican nominees on the ballot for President of the United States, irrespective of the paperwork filed, they would remain in place in that faculty. This contrasts with the stringent deadlines imposed on the Libertarian Party of Texas when in 2004 it was forced to gain sufficient signatures to remain on the ballot in the short period of 75 days- a major burden for a minor party. Apparently leniency may be granted only to major parties rather than all parties.

A similar bias was found in the 2008 presidential election in Louisiana. After a hurricane struck and the Secretary of State of Louisiana closed his office for a week, Bob Barr missed the deadline to file. One would expect leniency in this matter, given the obstacles put forward by nature. In fact, the congressional primary in Louisiana was postponed for that very reason. However, this leniency was not granted. The only difference in the congressional primary’s delay and Barr’s lack of such a reprieve were the victimized parties. In the former situation, every political party would be injured; however, in the latter only minor party candidates like Barr would be at risk. Once again, a clear bias may be found in implementation of election law.

Both of these instances also present another interesting aspect of the problems with ballot access law. There is a substantial bias in favor of the major political parties in the American court system. It must be noted that in both of the implementation problems cited above, the Libertarians promptly turned to our legal system for recourse. In the Texas case, Bob Barr appealed the decision of the Secretary of State to manipulate the rules for the major parties by filing for injunctive relief; essentially, Barr argued the major parties should be removed from the ballot. This motion was rejected with no explanation by the Texas Supreme Court. A parallel case developed from the situation earlier described in Louisiana. There, Barr sued the state for the lack of leniency in granting ballot access and lost in the case Libertarian Party et al v Dardenne. This appears to be the same principle at work as in Texas, yet no uniform decision process was applied. In fact, the one constant is that both decisions disadvantaged minor parties. Rather than being impartial guardians of the law, the courts act as another agent of the Republican and Democratic Parties.

Critics of my position may claim that no substantial abuse occurs, as minor parties have relatively little support compared to the major parties anyway. This idea is not compelling for two reasons. First, one could argue this is a consequence of the flawed ballot access system we have today. When minor party and independent candidates must pour resources into financing a petitioning campaign, their major party competitors have a distinct advantage with resources to advertise and build a sophisticated campaign structure. Such a situation crippled independent presidential candidate John Anderson in 1980, who was forced to spend half of his campaign coffers on the process of simply getting on the ballot. After initially polling above 25%, Anderson’s lack of resources and inability to effectively advertise may have contributed to his lackluster 7% on election day. We may surmise one possible reason Republicans and Democrats retain such a stranglehold on our political system is that they have the ability to legislate such dominance with restrictive ballot access laws.

Beyond this point, a more fundamental principle is at stake with the mentality I described above. The question is not one of politics but democracy. It is true that one accepted principle of democracy is that the majority is given the power to govern. However, another important aspect of this is that the minority is supposed to be allowed to voice dissent. One must wonder if such dissent may be effectively voiced without alternative candidates to select on our election ballot. Our current conception of ballot access law is antithetical to the concept of democracy. True self-rule is not found in the victors curtailing the options of the electorate. Instead, we find only the silencing of minority parties and independent candidates, who are largely excluded through such coercive measures. In the face of such egregious violations of the rights of the minority, a startling conclusion may be reached: one is free to participate in democracy only if you select the manipulated choices of those in power. Of course, such manipulated democracy is not democratic at all.

Whether one looks at our laws, bureaucracy, or court system, one may find clear bias in our ballot access laws. Just like in the market, all of this points to a monopoly of our political system. Only this monopoly does not curtail competition over some product; instead, it controls the voices of the American people. Only with reform of these laws may our society reclaim true democracy.

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