How Ballot Access Laws Undermine Democracy in America

Ballot Access
Activists of the Arizona Green Party collecting signatures for ballot status. Photo by Kaihsu Tai

By Justin Kempf

Are You Even on the Ballot?

In 1994 the Libertarian Secretary of State Candidate, Steve Dillon, won 2.17% of the vote. ┬áIt was a watershed moment for the Libertarian Party in Indiana. Most states make it difficult for minor political parties to even appear on a ballot in an election. Indiana’s laws are notoriously difficult. They require every candidate to petition countless voters. However, they waive the requirement when a party’s candidate for Secretary of State wins more than two percent of the vote. So, Steve Dillon’s performance was just enough to allow Libertarian candidates automatic access to the ballot for four years.

Minor political parties in the United States face an uphill battle. The electoral system in most states encourages voters to decide between candidates from the two major parties. Most people consider a vote for a third party as a wasted vote. But this is only one of many obstacles for minor political parties and their candidates. Indeed, the most significant barrier for third parties is access to the ballot itself. The laws are different in every state. Some are quite difficult, while others are relatively easy.

However, the differences confer a very real obstacle to the formation of new political parties. For instance, a presidential candidate must meet the requirements for each individual state. As a result, most third party candidates for President appear in some states, but not others. It is rare for a third party candidate to appear on the ballot in every state. Moreover, most parties fail to reach thresholds to retain ballot access in subsequent elections, so they devote most of their resources toward ballot access every election cycle. Afterwards, it leaves little energy or resources for campaigning.

American Exceptionalism

Most political scientists believe the American party system is a consequence of its voting system. Most states have adopted a first past the post winner-take-all plurality system for elections. In other words, whoever wins the most votes wins the election. It encourages the consolidation of political parties. Minor parties struggle to win support, because voters don’t want to ‘waste their vote’ for a candidate who has no chance to win.

For its part, the United States has had two major political parties throughout most of its history. However, minor parties have also competed for and won major political offices throughout American history as well. For instance, between 1937 and 1939, third parties held three seats in the Senate and twelve in the House. Indeed, Democrats and Republicans did not have a monopoly on Congress until 1951. Before then minor political parties had at least one seat in Congress.

Moreover, many other countries with similar first past the post elections have far more than just two relevant political parties. For example, the United Kingdom, known for its majoritarian Westminster System, has representation from ten different political parties in its parliament. Minor political parties hold about 13% of the seats in parliament. Indeed, most countries with similar electoral systems have representation from a wide range of minor political parties. The American system is truly unique for its unyielding two party system.

Ballot Access Laws Undermine Democracy

The difference between the United States and other countries is not just its electoral system. Rather third parties struggle, because states impose onerous ballot access laws and other requirements. Republicans and Democrats naturally receive many implicit advantages. Nonetheless, they also receive many explicit advantages that are codified in law. Third parties and their candidates do not stand a chance when they do not even appear on the ballot. States should reduce the barriers for ballot access. This shockingly simple reform will do more than anything else to encourage the formation of new political parties. They will still face an uphill battle in the American political system. However, current ballot access laws make it almost impossible for minor political parties to even compete.

This year the Libertarian Party of Indiana nominated Jeff Maurer as their candidate for Secretary of State. While most people focus on high profile races like Governor, Senate or President, Libertarians view their nominee for Secretary of State as their flagship candidate. They cannot receive less than 2% in this race or their entire party loses automatic access to the ballot for the next four years. Fortunately, Maurer won 5.7%, so they are safe for four more years. But other political parties simply do not try. They are not even formed. The barriers to ballot access are simply too much. People eventually decide it’s not worth the effort. This is not how democracy is supposed to work.

Justin Kempf manages this blog and hosts the podcast Democracy Paradox. He lives with his family in Carmel, Indiana.

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