by Ralph Nader and Theodore Jacobs
Published on February 25, 2004 By Wahkonta Anathema In Politics
Given the new policy of limiting complete and full representation of a person's views who is not a member of the site, I am posting a portion of a paper written by Ralph Nader and Theodore Jacobs from the year of Nader's graduation from Harvard, 1958. He is speaking on the need for third parties in the election system. Click link for copy verify and other works by Nader.
Harvard Law Record, October 9, 1958

Ralph Nader and Theodore Jacobs, the co-authors of this article, both graduated from the Law School last June. Mr. Nader is a former editor of the RECORD.

Most people will agree, as a general proposition, that our democratic faith is reflected in our treatment of minorities. But, as so often happens with national professions, it is in the translation of these declarations into actual practice, in the testing of these principles in the crucible of actual events, that reservation begin the process of erosion. One area in which such erosion may be seen is that dealing with the laws governing the rights of minority political parties to place the names of their candidates on primary and general election ballots.

In state after state there is a practical monopoly of the ballot by the Democratic and Republican parties. The perpetuation of this monopoly is insured by laws which subject the entry of new or minority party slates to the ballot to almost impossible burdens, and by judicial interpretations of these laws which ignore their prejudicial effect on small parties.

The fact that this problem is still with us is evidenced by a long line of decisions upholding state requirements for small parties, the most recent being one handed down in November, 1957, by the California Supreme Court. In that decision, the primary law was upheld despite pleas by the Socialist Party and the Christian Nationalist Party that it would cost each party up to $400,000 to qualify under that state's petition requirements.

It must be made clear that reference is not being made to political success, but rather to ballot access. Political success is impeded by deeper political patterns such as the election system of "plurality-take-all." Our emphasis here, however, is on the nature, operation and rationale of the laws preventing minority parties from merely placing their the names of their candidates on the election ticket.

What requirements must a small party or independent group meet in order to place its candidates on the ballot? There are 48 different answers to this question

Other Requirements

Early filing dates, often four to six months before the election, effectively bar eleventh hour protest or splinter parties and force the gathering of signatures before the acme of the public's political consciousness. In other states, the period within which signatures may be obtained is severely restricted. Pennsylvania, for example, requires that the total number of necessary signatures be obtained within a 20 day period.

The potential group from which signers may be solicited is even limited in many states. Prevented from signing an independent nominating petition are those who voted in a contemporary party primary as well as voters affiliated with another party within a specified previous period.

Such state action has the effect of preventing voters from changing party connections during a campaign after the primary elections or during the prescribed pre-election period.

One of the characteristics of an inflexible standard is the facility with which it can be abused in its enforcement. Thus, even when a minority party complies with all the major regulations there remains a fair possibility that the petition will be totally negated by a technical defect or omission often due to ambiguities in the election law.

As a final resort for the politically frustrated, the write-in vote is available in 47 states, and would probably be implied as a constitutional right in the absence of any express provision.

In practice, the write-in vote is a somewhat illusory privilege. No party has ever won an election in this manner, though an occasional independent has been elected this way. The experience of the Socialist Party is that most states, finding the write-in unwieldy, simply disregard them in submitting their count of the vote.

Added to these legal obstacles have been a variety of pressures in the form of discriminatory judicial and administrative enforcement, and harassing, intimidating tactics by vigilante groups. The latter pressure has been expressed in the past by publishing petitions in newspapers to embarrass or black-list signers and even by physical violence against small party workers.

The constitutionality of even the harshest statutes has been maintained against claims of deprivation of due process, equal protection of the laws, and the right to vote. If the restrictions on access do not constitute an absolute bar and if the particular court gives weight to the write-in as an available alternative, these laws are deemed reasonable and therefore valid. Otherwise judicial review is as broad as judicial discretion which thus far has taken the form of a "hands off the legislature" policy.

What is constitutional may still be unwise. This is revealed by an examination of the evils which these restrictions are allegedly designed to prevent.

It is contended that the signature requirements prevent the ballot from becoming the size of a blanket and thereby confusing the voter.

The "blanket size ballot" argument has some validity, but it is attributed to the wrong cause. Rather than arising from an excess of parties, the long ballot has been due to a plethora of elective offices all the way from Governor to the county surveyor and the total listing of a state's presidential electors. With the replacement of the electors column by the names of the presidential and vice presidential candidates and the partial reduction of elective offices in many states, the problem of the long ballot has greatly diminished.

Small Party Motivations

Another viewpoint espoused by exponents of ballot restrictions reasons as follows: The decision of third parties to act independently is motivated by a desire to replace one of the major party organizations. To accomplish this aim, it must draw support on a scale far larger than present ballot requirements, especially in view of our plurality election system. This requires organization and development through time. Collecting a prescribed number of signatures encourages contact with the individual voter and development of an extensive local organization without which a party cannot hope to win an election.

This view is based on the mistaken assumption that the primary motivation of small parties is winning elections. This may remain a long term aspiration but the controlling objectives remain the more immediate ones.

When asked what motivations underlie their action, minority party officials might answer along the following lines:

"As a rule we are vitally interested in some fundamental idea of government from which springs a definite platform of specific issues or, in the alternative, particular legislation not based on a distinct theory of government. An example of the former is the Socialist Party while the Prohibition Party represents the latter.

"By participating in the electoral process we wish to demonstrate the popularity of our platform so that it will gain more adherents or will be accepted as a policy of a major party. We provide an opportunity for those dissatisfied with the major parties to register protest votes which can tip the scales in a closely contested two-party election.

"In an era witnessing a growing trend for the two major parties to dispute over vague generalities and parade personalities as mechanisms of political appeal, we believe in concentrating on specific issues and basic principles which can be welded into a consistent program only because it is not necessary, as it is in the major parties, to conciliate a multitude of incompatible interest.

"We avoid the excessive compromise that breeds innocuousness principally because we are not seriously trying to win the next election. In their quest for power by electoral success the major parties must appeal to the broadest public possible. We escape this adulteration of our platform because we use the electoral process as a point of departure for our agitation, as a means not an end."

It can be seen from the foregoing how exclusion from the ballot can totally stifle the advancement of these perfectly legitimate aspirations. Access to the election slate not only permits the expression of public opinion but also has a high publicity value in marshaling greater support. It is the only practical way by which minor parties can say "Republicans and Democrats -- take notice!"

Salutary Effect of Easier Access

This is no place to catalogue the contributions of minority parties in American history. Their importance, as any history text will attest, has been far greater than their size.
Herman Singer, editor of the Socialist Call, spoke of history when he stated that "minor parties have, by and large, contributed to American political life by submitting criticism, offering suggestions and challenging the values of existing parties, thus contributing toward the expansion of political discussion."

At a minimum, minor parties have many times in our history deeply stirred opinion and illuminated the murky atmosphere of politics with a flash of idealism. From the standpoint of the electorate, this is bound to have substantial educative value.

Opening the ballot to more than two alternatives encourages citizen participation in the political process. The right to political dissent becomes nominal and can become dangerous without the steamvalve mechanism of placing minority before the voters. Frustrating local restrictions can only contribute to disillusionment with our democratic ideals.

The True Premise

It is perilous, however, to rest an advocacy of liberal ballot legislation on a utilitarian evaluation of minority parties. Such a foundation is too unstable, too fluctuating, and excessively subject to the whims of majority assessment. Rather, it is submitted, the right to present minority candidates before the electorate on equal terms with other parties derives from those basic rights inherent in a free society. And these rights stem from a tradition of unending struggle to preserve the free competition of the marketplace of ideas.

A democratic society should not dismiss a freedom as unimportant merely because it has comparatively little direct significance to the majority. We would do well to remember that suppression once sanctioned has epidemic qualities and that all of us are minorities in one framework or another.

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