Spoiler Alert

          Does it make sense to blame one candidate when a second candidate loses an election?

          As the 2008 election season shifts into high gear, this question demands attention. At least one minor party and one independent presidential candidate have each registered at 6% in recent national polls. Media coverage of this fact overwhelmingly focuses not on the candidates and their platforms, however, but on whether they will play the role of “spoiler” in November.

So what’s a spoiler?

          A spoiler is a minor party or independent candidate who is presumed to take votes that would otherwise go to the major party candidate whose platform is most similar. Because minor party and independent candidates are unlikely to win an election in our two-party system, the idea goes, such candidates can only “split the vote,” and thereby help to elect a major party candidate that a majority of the electorate actually disfavors.

          Hence, when a major party candidate loses an election, minor party or independent candidates who also ran are sometimes blamed.
 
          The idea of minor party and independent candidates as spoilers is built into the language we use to talk about them: the first thing we want to know about such candidates is whether they will “skim,” “siphon,” “drain,” “detract” or just plain steal votes from one major party candidate or the other. Pollsters encourage such thinking with zero-sum analyses of electoral results, as does the 24-hour news media, with its incessant focus on the election as horse race.

          There is reason to be skeptical, though. Naturally, if minor party or independent candidates weren’t in the race, their votes might otherwise go to a major party candidate. But why adopt this presumption in favor of major parties, and to the exclusion of all others? The First Amendment does not favor particular political parties, and the Constitution nowhere mentions them. Indeed, the Framers were famously wary of what they called government by “faction”. As a matter of constitutional interpretation, therefore, the notion that minor party and independent candidates should be relegated to spoiler status is a nonstarter.

           Of course, just because every candidate has the right to run doesn’t necessarily mean that they should run. And if by running, such candidates actually do help to elect a candidate inimical to their own views, maybe they deserve to be called spoilers after all.

           One problem with this argument is that no one knows what would have happened in an election if voters were denied the choice of voting for a particular candidate. Besides, the whole purpose of an election is for candidates to compete for votes. It’s not as though minor party and independent candidates somehow trick voters into voting for them. Voters know that they won’t help either major party candidate by voting for a minor party or independent candidate, but they do it anyway. 

           Voters have all kinds of reasons not to vote for the major party candidates: as a matter of conscience, principle or protest, just to name a few. To deny voters that choice would not only violate their rights, but it would also cut off one of the most effective avenues for strengthening our democracy. Countless times, minor parties have led the way on social reforms that the major parties refused to address, such as the abolition of slavery, women’s voting rights, social security, and more recently, environmental, energy and labor issues.

           Vladimir Putin in Russia and Robert Mugabe in Zimbabwe have each demonstrated how easy it is to win elections when a ruling party denies voters a free choice of candidates. Here in the United States, we rightly condemn such repressive tactics. At a time when the vast majority of Americans live in the functional equivalent of a one-party state – otherwise known, in the parlance of the two major parties, as “safe” states – we should also condemn use of the term spoiler. We need more candidates, not fewer, to run outside our entrenched two-party system. And those who do deserve not blame but praise.

CCD Files Amicus Brief in Rogers v. Cortes

Brief supports petition for certiorari in case challenging Pennsyvlania's uniquely punitive ballot access law.

            On July 30, 2007, the Center for Competitive Democracy filed an amicus brief before the Supreme Court of the United States in support of the petition for certiorari in Rogers v. Cortes, case no.06-1721. The Constitution, Green and Libertarian parties are the petitioners in Rogers, and they challenge Pennsylvania’s uniquely punitive ballot access legislative scheme.

            No other state in the nation - including Pennsylvania prior to 2004 - penalizes candidates for submitting nomination papers by forcing them to pay litigation costs to private parties who sue to remove them from the ballot. Yet in the last two election cycles, Pennsylvania has ordered candidates to pay more than $80,000 each to law firms that sued to challenge their nomination papers. Such orders clearly violate well-settled Supreme Court precedent holding that states may not require candidates to pay costs associated with holding an election. See Lubin v. Panish, 415 U.S. 709 (1974) (striking down candidate filing fees ranging up to $982); Bullock v. Carter, 405 U.S. 134 (striking down candidate filing fees ranging up to $8,900). 

            CCD's brief makes three main points to illustrate the severe burden that Pennsylvania’s ballot access law imposes on candidates and voters. Specifically, as a result of lawsuits filed against candidates to challenge their compliance with the law in 2004 and 2006:

·        Minor party candidates have been functionally barred from running for office in Pennsylvania;

·        Thousands of Pennsylvania voters have been disenfranchised;

·        All three of Pennsylvania’s minor political parties have been legally terminated within the last year.

            The Court convenes to consider the petition on September 24, 2007.

            Read CCD's amicus brief. Read the District Court Opinion and the Third Circuit Opinion.