Fair Ballot Access Laws Make Politics Better for Everyone

For third political parties, petition-gathering season is arriving. This is when, in most states, most minor parties have to get to work collecting large numbers of petition signatures as required by state statute for the “privilege” of having the party’s name on the ballot. While requirements in many states are onerous, there are a few states where few or no petition signatures are required, and ballot access is mainly a matter of setting up and maintaining a state party organization and finding candidates. This is certainly less onerous than constant petition-gathering, and in the spirit of focusing on the positive, I will look at third parties in a few states where ballot access is comparatively easy – that is, easy in comparison to states where the two major parties have sought to erect barriers against third-party participation. I’ll take a quick look at Vermont, Florida, Louisiana and (briefly) Mississippi. The broader options for the voters in terms of third parties don’t seem to have made politics worse in these states – which of course raises the question: What is the justification for the more stringent laws which other states impose?

Eric Bodenstab is the deputy director of communications for the Unity Party. Like people in other third parties, he discussed the challenges of ballot access. The Unity Party has “only a few people” in each state,” and it’s “hard to have a fifty-state network.” The Libertarian Party is the “model,” having attained ballot access in fifty states. So far, the Libertarians seem to be the only third party to have achieved this feat. (Another problem Bodenstab mentions is that, even if his party is one of multiple parties listed alphabetically on the ballot, the Unity Party comes at or near the bottom of the list.)

Jim Hedges runs the Web site prohibitionist.org. He is involved in the Prohibition Party, the oldest third party in the U. S., founded in 1869. The party’s defining cause is treating alcohol like other recreational drugs – through a legal ban – but though the prohibition cause was popular in America at one time, Hedges says that now “nobody else cares about it except us.” But the party wants to “keep our issues alive.” Hedges served two terms elected unopposed as tax assessor in Thompson township in Fulton County, Pennsylvania’s Thompson township. But Hedges attributes this to his neighbors knowing him, and does not cite his support of prohibitionism as a cause of his election. From the standpoint of ballot access for higher offices, the states with more Prohibition Party members – like Hedges’ own Pennsylvania – are also states with restrictive ballot-access requirements, while states with more liberal requirements have less of a Prohibitionist presence, if any,

Mississippi, for example, has relaxed ballot-access requirements, requiring mainly that a third party organize itself, without needing ballot signatures. The lack of Prohibition Party members on the ground could have been an obstacle to recognition, but some non-Prohibitionists agreed to form a party committee in Mississippi on the request of a Prohibitionist relative of theirs, Rick Knox. (Knox died after the 2020 elections.)

Vermont: Liberal ballot access, possibly too liberal in 2020 due to Covid

Joshua Wronski is the Executive Director of the Vermont Progressive Party, one of the Green Mountain State’s three major political parties (the other two, of course, are the Democrats and Republicans). Originating with Bernie Sanders’ supporters in Burlington, the Progressives picked up rural allies and 5% of the vote, which – in addition to having town committees in a minimum of 30 towns and seven counties – was enough to establish major-party status. The Progressive Party has elected officials in the legislature and local governments (like Burlington’s) and has found a way to run as fusion candidates on both the Democratic and Progressive ballot lines: while the same person cannot have their name on two parties’ primary ballots, they can have their name on one ballot and run as a write-in on the other ballot.

Apart from the three major parties, Vermont has several minor parties. Richard Winger, the ballot-access guru, calls Vermont the “star of New England” for its ease of ballot access. Even if a party cannot get the 5% needed to become a major party, it can be recognized simply by organizing in fifteen towns and three counties. One of the minor parties is the Liberty Union Party, which is socialist-sympathizing like the Progressive Party but doesn’t get nearly as many votes – Wronsky calls it a protest party. My efforts to reach a Liberty Union Party spokesperson have so far been unsuccessful.

In normal years, a candidate (as opposed to a party) needs to meet fairly minimal signature requirements to get on the ballot in Vermont. Eric Bodenstab of the Unity Party says it’s “pretty easy in Vermont.” Wronski says “[a]nyone who’s half-serious” can collect the needed signatures. It was even easier in 2020, when the legislature suspended signature-gathering requirements to avoid the risk of spreading the coronavirus. This was too easy for Wronski, who complains about one candidate filing for multiple nominations with the Progressive Party, generally unopposed, though the candidate did not “share our values.”

William Senning, Vermont’s Director of Elections and Campaign Finance, found “somewhat surprisingly,” that the COVID-induced suspension of petition requirements in 2020 “didn’t have a great effect” on the number of candidates. The only exception was the Presidential election, where the traditional 5 or 6 candidates rose to about 20 in number.

Florida: Liberal ballot access except for “bizarro” parties

In Florida, a Constitution Revision Commission, meeting in 1997-1998 (such commissions have to meet every twenty years), recommended a ballot-access amendment to the Florida Constitution. The amendment, which the voters approved, provided that minor parties and independent candidates must have the same ballot-access rights as the largest party.

Gary Hecker, Treasurer of the Ecology Party of Florida, says Florida went from one of the country’s most difficult states for third-party ballot access to one of the easier jurisdictions. Although the legislature has lately tightened the requirements of third-party recognition, this mainly acts to prune the nonserious, “bizarro” parties. The new rules are still fairly lenient, requiring only a few achievable, inexpensive things: all political parties must file their constitution and bylaws with the government – Hecker “doubt[s]” the government “even reads them” – must have at least three state officers, must have a membership meeting once a year, must spend $500 annually for political activities, and must file quarterly financial reports. All in all it’s “not a particularly onerous thing,” says Hecker. The only problem is that any “nutcase” can file for nomination in a minor-party primary, and will automatically become the nominee if unopposed (say, for a low-profile local office).

“The broader options for the voters in terms of third parties don’t seem to have made politics worse in these states – which of course raises the question: What is the justification for the more stringent laws which other states impose?”

The only area in which ballot-access requirements are stricter in Florida is with Presidential races. In a “fairly recent change,” as Hecker says, the Florida legislature has required that a Presidential nominee be recognized by the Federal Election Commission. (In regulating Presidential elections, state legislatures are generally allowed to act independently of their state constitutions, so the party-equality clause of the Florida Constitution may not apply).

Mark Cardenas, Chairman of the Reform Party of Florida, came from Minnesota a couple years ago as the Florida party was disaffiliating with the national Reform organization and joining itself with the Alliance Party. Compared to the restrictions in Minnesota, Florida’s situation with third parties is “quite refreshing.” One recent change which affects third parties more than the major parties is a statute requiring candidates to have been a member of the party whose nomination they seek to have been a member of that party for one year. Thus, candidates who want to run in the Florida Reform Party primaries in April 2022, will have to have been members of the party since April 2021. This limits “the pool of people you have to reach out to,” especially since the recent reorganization means the Reform Party is basically starting up again. But Cardenas is confident “we’ll be able to work around” the statute and “work with it.” On the Presidential level, Cardenas thinks the Alliance Party, which wasn’t federally recognized in 2020, denying their Presidential candidate Rocky Fuentes access to the Florida ballot, should be able to get recognition by the time the 2024 Presidential election comes around.

I tried to get in touch with spokespersons for the Democrats and Republicans in Florida, as the presence of third parties there has caused some controversy, particularly due to the narrow 2000 election, but I haven’t gotten responses yet. As I understand the criticism, a carelessly-designed – and illegal – ballot in one county misled some voters into voting for Pat Buchanan when they meant to vote for Al Gore. I haven’t heard of a recurrence of this problem.

Louisiana: Liberal ballot access for the state’s open primary, though minor party candidates are generally weeded out by voters by the time of the general election

Michael Wolf, a semi-retired lawyer and longtime Libertarian Party member in Louisiana, recalls how he helped persuade the state legislature to make third-parties’ access to the ballot easier. Back in 2004, Louisiana already had fairly easy access for independent candidates; the difficulty was that the candidates’ party affiliation couldn’t be listed unless the party got 5% of the vote or met a 5% requirement of petition signatures – “unreachable,” recalls Wolf. (Wolf had been part of an earlier effort to loosen Louisiana’s ballot access restrictions through the courts, but this effort failed – Dart v. Brown, 717 F.2d 1491 (5th Cir. 1983)). Two sympathetic major-party legislators whom Wolf knew helped pass a law loosening the party-recognition requirements. Now, a party can get 1,000 registrations by voters identifying as members of that party, and achieve ballot access that way. This is the method the Libertarians have used.

These reforms occur in the context of Louisiana’s open-primary system, where everyone who files as a candidate for a recognized party competes in a primary, with the top two vote-getters going to the general election. This usually means that, in the general election, a Republican faces off against a Democrat, but the contest could come down to two Republicans or – more rarely in this Republican state – two Democrats. Thus, liberal ballot access is available basically for the primary election, before most candidates get winnowed out.

The Unity Party’s problem in Louisiana, as described by Bodenstab, stemmed from the need to recruit candidates for Presidential electors. Several candidates had to be located and arrangements made for the would-be electors to fill in the needed affidavits. Ballot-access petitions, in contrast, were not a problem.

Rufus Craig, chairman of the Libertarian Party of Louisiana, appreciates the “remarkable confluence of events” which made ballot access easier for Libertarians and other third parties in his state. He’s also proud of the Libertarian Party’s difficult achievement of ballot access in fifty states, including states which are far less welcoming to third parties than Louisiana. In general, though, Craig has harsh words for the means the Democrats and Republicans use to try and freeze third parties out of the public conversation, including ballot-access barriers in states less fortunate than Louisiana. If the two parties had their way, Craig believes, their candidates wouldn’t discuss substantive issues, but would merely run on the basis that they’re not the other party. Adding a third party to the mix obliges the Republicans and Democrats to actually make some mention of the real issues facing the country.

Chairman Mark Cardenas of the Reform Party of Florida says that having multiple political parties leads to a “healthy political environment” and is the “right move for the country as a whole.” The current “ping-pong” between the two major parties “doesn’t move the country forward.”

Access for parties and candidates with something to say

In general, Florida, Louisiana, Vermont and Mississippi show how serious minor candidates and parties can offer themselves to the voters on the ballot. Filing and organizational formalities generally keep off the unserious candidates in Vermont and Florida, with some reservations. Vermont had an even more wide-open system than usual in 2020, because signature-gather requirements were dropped to avoid the spread of Covid. This may have made room for some candidates even the minor parties deemed eccentric. In Florida, in uncontested minor- party primaries for small local offices, eccentric candidates unvetted by the minor parties can get nominated while nobody is looking, though the minor parties have candidates more in line with their thinking for the higher offices. In Louisiana, the open-primary system gives minor party candidates fairly easy access to the ballot, but only the major-party candidates seem to make it past the primary to the general election. The one “liberal” state I haven’t researched as much as I wished was Mississippi. If minor-party candidates have gummed up Mississippi’s system, I haven’t heard about it.

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