 |
 |
 |
 |
 |
 |
 |
The Role of the Courts
Every American has an equal right to participate in our political system. That right is guaranteed by the United States Constitution. When a law is enacted that restricts our political freedom, we also have the right to challenge that law in court. If the court finds the law lacks justification, the court will strike the law down as unconstitutional.
That's what happened in 1968, when Ohio enacted a law that made it virtually impossible for any candidate to challenge the Republicans and Democrats. The law granted major party candidates automatic ballot listing, but all others had to collect more than 450,000 signatures in less than two months. When a minor party candidate challenged the law, this is what the Supreme Court said:
[Ohio's law] does not merely favor a "two-party system"; it favors two particular parties - the Republicans and Democrats - and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms (Williams v. Rhodes).
The Court noted that the right to form a political party means little if the party's candidates can't get on the ballot. Likewise, the right to vote doesn't mean much if voters can't vote for the candidate of their choice. The Court thus held Ohio's law unconstitutional.
Much has changed since 1968. The two major parties now have monopolies throughout most of the country. One reason for this is that the Supreme Court pulled an about-face after deciding Williams v. Rhodes. Just three years later, the Court declared in Jenness v. Fortson that ballot access laws would be upheld so long as they did not "operate to freeze the status quo." The Court upheld Georgia's ballot access law in that case. Remarkably, no minor party candidate has gotten on Georgia's ballot since the state raised its requirements in 1943 - thus freezing the status quo for the last 60 years.
The Supreme Court has upheld virtually every ballot access law it has reviewed since Williams v. Rhodes, even though states keep raising their requirements. Overall, signature requirements have increased twenty-fold in the last century - far outpacing population growth. Nevertheless, the Court has effectively washed its hands of the whole matter. Since Williams v. Rhodes the Court has held that states may enact laws that discriminate against minor party and independent candidates; they can do so without showing any justification for the discrimination; they can do so for the explicit purpose of excluding minor party and independent candidates; and states can even bar those candidates who have been excluded from runnning as write-in candidates.
In 1997, the Court finally stated openly what its decisions increasingly implied:
American politics has been organized around two parties since the time of Andrew Jackson. The Constitution permits the...Legislature to decide that political stability is best served through a healthy two-party system (Timmons v. Twin Cities Area New Political Party).
Imagine if the Court had said that the Constitution permits the Republicans and Democrats to use the power of the law to discriminate against competitng political parties. This would contradict what the Court said in Williams v. Rhodes, and it would violate our basic belief in political equality for all Americans. But in effect, that's just what the Court did say. The major parties dominate and control the legislatures, so when the "legislature" determines that political stability is best served through a healthy two-party system, in fact it is Republicans and Democrats who are making this determination.
The Supreme Court's ballot access decisions are contradictory - they can't all be right. This illustrates what we already know, that the Court is not infallible. Correcting the Court's understanding of the electoral process is thus an important step toward fixing the electoral system itself.