The Importance of Ballot Access

by Richard Winger

Reprinted with permission from the Spring 1994 Long Term View, Massachusetts School of Law, Andover, MA.

American History Shows that Third Parties Enhance the Positive Consequences of a Two-Party System.

IN DECEMBER OF 1992, Leon P. Baradat wrote an op-ed piece in The San Diego Union-Tribune entitled "Beware of Third Parties." In his piece, Professor Baradat asserted that the introduction of third parties into our political system would only exacerbate the existing problem of gridlock. Baradat concluded with an ominous warning to the American public: "Whether the parties in this country are Democratic or Republican, or something else, is not important. What is important is that there be only two major parties.... Beware of supporting third parties."

Professor Baradat's conclusion is only partially correct. Certainly, our "winner-take-all" electoral system ensures that we will have only two major parties, no matter how many political parties there may be. But American history shows that third parties enhance the positive consequences of a two-party system. Both gridlock and a low voter turnout, the usual signs of a two-party system that is not operating properly, have historically been associated with the restriction of new or third political parties.

In order to enjoy the benefits of a healthy two-party system, we must encourage the growth of new parties. And if we are ever to replace one of the two major parties with a new party (something that even Baradat acknowledges is possible, and something that we, the voters, ought to have a right to do), it will only be done if we lift the current ballot-access restrictions on third political parties.

The Mechanics of a Two-Party System

In order to understand how new parties help a two-party system to function properly, we need to understand our topic. "Two-party system" is a political science term that simply describes a political system in which two parties are much bigger than all the others. It does not refer to a system in which there are only two parties, as some would have us believe. Nor does it refer to a system where the government supports two established parties and tries to discourage the participation, or creation, of all others.

Most political scientists agree that a two-party system comes into existence in any society in which elections are based on the "winner-take-all" system. If there are five candidates who represent five different policies, it will soon become apparent (via opinion polls and the media and public discourse) that two candidates enjoy more support than the others. Few people will want to "waste" their vote on a person who seems likely to finish third or fourth, and support will naturally coalesce around the two frontrunners. (Under proportional representation, by contrast, a party that receives 5% of the vote would receive 5% of the legislative seats.)

In a healthy two-party system, the major parties are roughly equal in the size of their membership. Each is distinguished from the others by a clearly differentiated platform, and voters, for the most part, enthusiastically hold allegiance to one of the major parties. Subsidiary characteristics of this system include a high voter turnout and internal cohesion in each major party.

When these conditions exist, the two major parties will ideally protect the political system against tyranny and gridlock. The party in power, which voters usually place in control of both the legislature and the executive branch, will be able to implement its programs, but only as long as it retains the favor of the voters. Once a majority of the voters no longer approves of the ruling party's policies, it will vote that party out of office.

Third Parties in the 19th Century

Using the criteria of high voter turnout, the absence of gridlock, and exchange of power between the two major parties, we can see that our two-party system was healthy in the 1870s, 1880s, and 1890s. During that time period, control of the House passed back and forth between the Democrats and the Republicans every four years or so. In addition, these two parties were clearly differentiated by their platforms. Republicans favored high tariffs, a rather interventionist foreign policy, more public works, and some civil rights for blacks, while Democrats were in favor of low tariffs, decreased federal spending, limited foreign intrigue, and states' rights. Further evidence of the good health of the party system in the late 19th century is the record of high voter turnout. According to Census Bureau figures, almost 80% of the eligible population went to the polls from 1876 to 1892.

Today, evidence of our stagnant two-party system abounds. Even though the 1992 voter turnout of 55% was 5% higher than that of 1988, it is dismal in comparison to the 1870s and 1880s. The GOP hasn't won control of the House since 1952, and the Democrats have lost 5 of the last 7 Presidential elections. Professor Baradat is absolutely correct when he labels our present system "frustrating and inadequate."

But the solution to our curent dilemma does not lie in the further restriction of third parties, as Baradat also suggests. The times in U.S. history when the two-party system has worked best correspond to the times when the government did not interfere with the right of the voters to form new parties.

Throughout the late 18th and 19th centuries, our political system contained many vigorous and powerful third parties. Some of the best examples of this are the "Farmer's Parties," such as the Greenback Party, the Union Labor Party, and the Peoples' Party, that existed from about 1874 to 1900. These groups forced the major political parties to pass significant antimonopoly legislation as well as important labor legislation.

But these third parties did more than simply force the two major parties to adopt various policies. Third parties have always provided an "emotional bridge" for voters who are weary of supporting one major party but are not yet ready to vote for the other. George Wallace's 1968 third-party Presidential campaign drew support from traditional southern Democrats who weren't emotionally prepared to vote as Republicans. In 1992, H. Ross Perot's support was based on voters who refused to continue supporting the Republicans but couldn't yet bring themselves to vote for the Democratic ticket. The presence of viable alternatives beyond the two major parties keeps Americans involved in our democratic process.

There is a final, crucial manner in which third parties help our political system. The emotional bridge that a third party provides does more than simply lure voters to the polls; it can also help to turn one of the major parties out of power. Without the third-party bridges, the party-in-power might never be defeated, a situation that could lead to stagnation and tyranny. Third parties performed this function in 1912, when Theodore Roosevelt's Progressive Party helped the Democrats wrest the White House from 20 years of unchallenged Republican supremacy. To a lesser degree, this may also have occurred in 1992, as Ross Perot's candidacy probably hurt George Bush more than it hurt Bill Clinton.

In the 19th century, when new or third parties were very strong, the voters replaced one of the two major parties on three occasions. The Federalists were replaced in the 1820s by the National Republican Party (the party that ran John Quincy Adams for President in 1828 and Henry Clay in 1832). The National Republican Party was in turn replaced by the Whig Party, and the Whigs were replaced by the Republican Party in 1854.

Ballot Restrictions

Vigorous third parties existed in the last century because the election laws did not discriminate against them. People were free to form new parties, and the government treated all parties, new and old, equally. In 1854, the newly founded Republican Party won more Governor's seats, and sent more Representatives to the House, than did any other party. It was able to do so because there were no ballot-access laws until 1888. Indeed, there were no printed ballots before that year; people simply prepared their own ballots and were free to vote for the qualified candidate of their choice. When the government began to print ballots in 1888, it acknowledged this freedom of an unrestricted vote and invariably left a write-in space on the ballots.

Furthermore, in the 19th century, there was no such thing as public financing of the two major parties, which began for Presidential elections in 1974. Today, the Democrats and Republicans have their campaigns for President financed by the taxpayers. Under the 1974 law, no third party has ever received general-election public funding, although a handful of third-party Presidential candidates have received some primary season funds.

We no longer have vigorous and active third parties because Democratic and Republican state legislatures passed restrictive laws that make it exceedingly difficult for third parties to get on the ballot in many states. These laws usually require third parties to gather signatures for a petition to be on the state ballot, and they often place strict deadlines for gathering such signatures.

These restrictions did not emerge overnight. From 1888 to 1931, ballot-access laws were rather mild. In 1924, only 50,000 signatures on a petition were required to place a new party on the ballot in 48 states (a figure that represents 0.15% of the number of people who had voted in the previous election). During the 1930s, ballot-access laws became significantly restrictive, as they required new parties to gather more signatures and file for application earlier and earlier in the campaign year. Still, it was not until the 1960s that compliance with ballot-access laws became extremely difficult.

In 1994, a new party that wants to field a candidate in every race for the U.S. House of Representatives and have the party name appear on the ballot next to the candidate's name would need to register 1,593,763 members or gather an equal number of signatures. Yet the Democratic and Republican parties need not collect any signatures to assure themselves of a place on the ballot, and the number of signatures needed for individual Democratic candidates to place themselves on primary ballots in all 435 contests is 138,996 (the number would be slightly different for Republicans).

True, the severity of these ballot-access laws does vary from state to state. In Florida, one of the more restrictive states, a party is defined as one that has persuaded 5% of the state's voters to register with the new party. This may seem like an easy task, but not since the early 1900s has a third party in any state ever managed to register 5% of the voters. Even when people vote for a third party, they don't want to register with it. The Conservative Party of New York elected a U.S. Senator, James Buckley, in 1970, but they only persuaded 1.5% of the voters to register as Conservatives. Similarly, the Connecticut Party won the office of Governor in 1990, but registered only 0.1% of the voters.

Florida does offer third parties an alternative: if the new party cannot register 5% of the voters, then it can get its statewide nominees on the ballot by submitting 196,000 valid signatures on a petition (a figure that is equal to 3% of all registered voters). Once again, this task is harder than it appears. With a single exception (in California in 1948), no third party has ever met a signature requirement greater than 110,000 signatures. In fact, Florida's laws are so stringent that no third party or independent candidate for Governor has been on its ballot since 1920.

Admittedly, ballot-access laws are harsher for third-party congressional candidates than they are for third-party Presidential candidates. No third party has managed to run candidates for the U.S. House in over half of the nation's districts since 1920. By contrast, third-party Presidential candidates get on the ballots in all 50 states every so often, which probably misleads the public into thinking that there is no significant ballot-access problem for third parties.

In reality, America's ballot-access laws are so stringent, and third parties are repressed to such a degree, that the U.S. is probably in violation of the Copenhagen Meeting Document, an international agreement the U.S. signed in 1990 that requires nations to:

"Respect the right of individuals and groups to establish, in full freedom, their own political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on the basis of equal treatment before the law and the authorities."

How does the U.S. violate this agreement? Suppose that a new party were founded in 1994, with popular support that equaled that of the Democratic or Republican Party. In order to contest all the executive and legislative offices up for election on November 8th, 1994, it would need to collect about 4,454,579 valid signatures. And some of these signatures would need to be collected ten months before the election. By contrast, the Democratic and Republican parties would not need to submit any signatures to get themselves on the ballots, and their candidates would need only to collect about 882,484 valid signatures to place themselves on primary ballots.

The extreme disparity of the burdens placed on old, established parties versus new parties has no parallel in any other democratic nation in the world. Indeed, the number of signatures required for Democrats and Republicans to get on primary ballots is itself too high in some states, and as a result about 25% of all state legislative races present the voter with only one candidate on the general-election ballot.

In Britain, the political science model of a healthy two-party system, every candidate for Parliament faces the same ballot-access hurdle-- a simple filing fee. Candidates, regardless of their party affiliation, are granted two free mailings to all the voters, and every candidate gets a certain amount of free TV and radio time. There exists legal equality between all the parties. Yet Britain has a healthy two-party system, as did America in the 19th century.

There have been attempts to rectify the inequality in America between established and new parties. A pending bill in Georgia would lower the number of signatures needed for third-party and independent candidates for the House of Representatives from 14,000 to 5,000. A similar bill was recently introduced in Illinois to lower the number of signatures needed for third-party candidates for the House from 12,000 to 1,000. Sadly, neither bill is expected to pass.

Perhaps one of the best remedies currently [1994] available is HR 1755, Minnesota Congressman Tim Penny's bill, which would establish a federal standard of 1/10th of 1% of the last vote cast as the number of signatures required to place a candidate's name for statewide federal office on the ballot. One half of 1% would be required to get on the ballot for the House.
Update 1998: Congressman Ron Paul has introduced new bills on this subject which have already had their first hearings.

Unfortunately, the U.S. Supreme Court has a rather erratic record when it comes to decisions regarding the constitutionality of ballot-access laws. While the court has, on occasion, upheld challenges to restrictive requirements, it has at other times ignored these same decisions. In the 1968 case Williams v Rhodes, the court struck down Ohio state laws that made it virtually impossible for a new political party, even one that had hundreds of thousands of supporters, to gain access to the state's Presidential ballot. But in 1971, Jenness v Fortson upheld Georgia's ballot-access laws, even though these laws were somewhat more restrictive than those of Ohio. (Ohio's laws, though ruled unconstitutional, had actually placed more independent candidates on the ballot than had Georgia.)

The logic of the Court, while varying from decision to decision, can also be sloppy within the context of a single case. In a 1974 case, American Party of Texas v White, the Court upheld a Texas law that barred voters who had voted in a partisan primary from signing a petition to place a new party on the statewide ballot. It was rational, according to the Court, to limit voters to a single nominating act. But voters who signed the petition weren't nominating any candidates -- the Texas petition for a new party did not even carry the names of any candidates. Signing the petition simply indicated the voter's belief that the third party deserved a place on the ballot.

Despite the importance of third and new parties to our political system, the topic of restrictive ballot-access laws gets very little scholarly attention. Groups that are harmed the most by ballot-access laws tend to lack the clout required to command media attention. What media coverage there is of the topic is often muddled or misleading. E. J. Dione, a well-known writer on politics, stated in the May 21st, 1992, edition of The Washington Post that it is "easier than ever for third-party presidential candidates to qualify for state ballots." Even though the complete inaccuracy of this statement was brought to his attention, no correction was made. Scholarly works are often no better. Third Parties in America, a well-respected book published in 1984 by Princeton University Press, states on page 23, "Ballot-access laws are now as lenient as they have ever been in this century." But as was mentioned earlier in this article, the 1924 ballot-access laws were far less rigid than today's.

The fact remains that active and vigorous third parties play a vital role in maintaining the health of our two-party system. We need third parties today, more than ever, if we are to change the "frustrating and inadequate" political system that Leon Baradat spoke of. Yet if Professor Baradat and others like him had their way, public financing and ballot-access laws would be made even more discriminatory toward third parties. The Federal Government would artificially extend the Democratic and Republican parties far beyond their natural life cycle, thus condemning us to ever greater levels of stagnation and voter apathy. In order to keep our political system healthy, we must once again allow people the freedom to vote for the qualified candidate of their choice. Such freedom is not only essential to the health of our government but also our right as citizens of the United States.

Richard Winger is the editor and publisher of Ballot Access News.

Go back to the Ballot Access News index.

Copyright (c) Richard Winger 1994, 1998.
Compilation Copyright (c) Bob Bickford 1998.
This document is part of the Ballot Access News web site, and is located at

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