by Richard Winger

The U.S. voter has less choice for whom to vote than his great-grandfather did.

Although the U.S. has made great strides during the 20th century in enfranchising citizens who formerly were denied the right to vote (women, blacks, poor people), we have been losing ground on the parallel problem of what choice a voter has, once he gets a ballot.

In the 1896 general election, every single congressional district in the nation had at least two candidates on the ballot. The average district had 3.1 candidates on the ballot.

In the 1912 general election, the average election ballot had 4.1 candidates for Congress. But in 1984, there were only 2.3 candidates for Congress on the typical general election ballot, and one-ninth of the districts (49 out of 435) had only one candidate on the ballot.

The modern-day voter's choice is even more limited in state legislative races. In 1984 6,881 seats were at stake. An astounding 2,815 (41 percent) had only one candidate per position on the ballot.

In some important states, such as Texas, Massachusetts, and Florida, over half of the legislators were elected with no one on the ballot against them.

The blame for the declining number of choices on our ballots can be laid squarely at the feet of state legislators. Many of them have made it far too difficult for candidates to get on the ballot.

Originally, there were no ballot access restrictions whatsoever in the U.S. ... no petitions, no filing fees, no loyalty oaths, no declarations of candidacy. The government had no control over who could run for office, or whom voters could vote for. This is because, before the 1890's, the government didn't print the ballots! Instead, parties printed them and distributed them, and any voter was free to make his own ballot or to alter a party- printed ballot.

Even after the state took over the job of printing the ballots, it was easy to get on the ballot in virtually every state. In 1924 Senator Robert LaFollette was able to get on the ballot in 47 states as a third party candidate for president, and he needed to collect only 75,500 valid signatures to achieve this. That number was one-fourth of 1 percent of the number of votes cast that year. And he didn't need to go to court in any state to get on the ballot (although he did file a lawsuit in California to get a second listing on the ballot there).

As recently as 1930, no state required more than 14,680 signatures for a new political party to get on the ballot.

How things have changed! In 1980 John Anderson needed 647,792 valid signatures to get on the ballot of all states, which was .75 percent of the number of votes cast that year, triple the 1924 percentage. And he had to sue eleven states to force them to accept his signatures, or to force them to list his vice- presidential candidate. Even though Anderson was so popular that unpaid volunteers collected all his signatures, ballot access cost him $ 6 million, money that he could have put to better use, such as buying television time.

How did we get this net of restrictions?

Restrictive ballot laws began during the 1930's. In 1931, Florida abolished all means for independent candidates and new parties to get on the ballot. In 1937 California raised the new party petition from 1 percent of the last gubernatorial vote, to 10 percent. In 1939 South Dakota also raise the new party petition to 10 percent.

The trend continued after World War II. In 1952 Ohio raised the new party petition from 1 percent to 15 percent. In 1961 Wyoming abolished all procedures by which a new party could get on the ballot. In 196 Idaho did the same. And when Alaska came into the Union in 1959 the legislature failed to provide any means for a third party or independent presidential candidate to get on the ballot, a gap that was not corrected until 1968.

Many of these restrictions were excused on the grounds that the U.S. is a "Two-Party system" and that everyone was free to participate in one of the two major parties, so it didn't really matter if third parties were locked out.

However, a bad precedent had been set ... the state's power over the ballot was now being used to control who could run for office, and whom voters could vote for. And the vast majority of people didn't seem to mind, or even to notice.

Now we are seeing the beginning of a new set of ballot access restrictions, those which make it very difficult for individual candidates to get their names on the primary ballots of their own parties. In each case, states which are making it difficult to get on the primary ballot are states which, some years back, began making it difficult for third party and independent candidates to get on the general election ballot.


MASSACHUSETTS: This state only required 1,000 signatures to get a third party or independent statewide candidate on the ballot, until 1939. That year, the petition was raised to 3 percent of the last gubernatorial vote, which ranged from 50,000 to 75,000 signatures. In 1973 this was lowered to 2 percent, which now equals 41,000 signatures. In all the years 1939 to the present, only 5 statewide independents have qualified for the Massachussetts ballot.

Since there was no public outcry against restrictions against independents, the major party politicians next moved to make it difficult for individuals to get their names on primary ballots. The statewide primary petition was raised to 10,000 signatures. And in the early 1980's, the Democratic Party passed a rule that no one could get on the Democratic Party primary ballot unless that person got at least 15 percent of the delegate vote at the state convention, regardless that the candidate had collected 10,000 signatures.

NEW YORK: New York has never required a huge number of signatures to get on either the primary or the general election ballot, but beginning in the 1930's, it began applying the election law in a hyper-technical way to third party petitions, on selective occasions.

The first instance was 1936. The new American Labor Party, backed by President Roosevelt, could not get on the ballot unless the old Socialist Labor Party were kept off, since it was illegal for two parties to use the same word in their names. A convenient technical flaw was discovered in the Socialist Labor Party petition, and it was kept off the ballot that year, the first time since 1888 that it had not appeared on the New York ballot.

The technique was used again in 1940, 1946, 1956, 1960, 1969, and 1982, against various third parties.

Now it is being used in Democratic primary elections. In 1980 Jerry Brown was knocked off the Democratic presidential primary, and in 1985 and 1986 hyper-technical objections have been used to keep many prominent Democratic candidates off the ballot.

We must go back to basics, and re-think the question, "What are ballots for?" Ballots are to permit the voters to vote for the candidates of their choice. If there are voters who wish to vote for a candidate, and that candidate is omitted (against his or her will) from the ballot, then the ballot is faulty. It isn't doing its job. The purpose of ballots is to facilitate the wishes of voters, NOT to control whom they vote for.

Defenders of the restrictions say that candidates who lack substantial support must be kept off the ballot. Nonsense! As the 9th Circuit, U.S. Court of Appeals, said in July 1985, "A state may not require a preliminary showing of voter support as an end in itself. Denying ballot access is permissible only if and to the extent that it is necessary as a means to further other legitimate state interests, including avoidance of the voter confusion that may result from the presence on the ballot of too many frivolous candidates."

Yes, some requirements are needed to keep the ballots from being clogged with too many candidates, but the very slightest ballot access barriers are sufficient for this purpose. Tennessee only requires 25 signatures for an independent candidate to get on the ballot for any office, and no fee is required. In 1984 there were no independent candidates for the U.S. House on the Tennessee ballot. It's a myth that there are dozens of people who want to run for office.

Ballot access restrictions are dangerous. Even the most popular candidates can make a mistake on occasion. In 1964, a Democratic Party official forgot to certify Lyndon Johnson for the Iowa general election ballot by the deadline. The Iowa Secretary of State wisely ignored the technical violation and put him on the ballot anyway. But Johnson wasn't so lucky in Alabama, where he lost his position as the Democratic nominee in that state and couldn't qualify as an independent because an early filing deadline made it impossible. In a close election, such accidents could be catastrophic.

Reprinted from Libertarian Party News, Extra Research Edition (1988)

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

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Copyright (c) © Richard Winger 1988, 1999.
Compilation Copyright (c) © Bob Bickford 1999.
This document is part of the Ballot Access News web site, and is located at http://www.ballot-access.org/winger/wabf.html