Death by a Thousand Signatures: the Rise of Restrictive Ballot Access Laws and the Decline of Electoral Competition in the United States

• Publication year: 2004
• Citation: Vol. 29 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 2WINTER 2005

Death by a Thousand Signatures: The Rise of Restrictive Ballot Access Laws and the Decline of Electoral Competition in the United States

Oliver Hall(fn*)

I. INTRODUCTION: DEMOCRACY AND THE COUNTERMAJORJTARIAN PROBLEM

When Saddam Hussein was re-elected President of Iraq in October of 2002, he claimed what undoubtedly ranks as the greatest electoral victory of all time, winning 100% of the vote in an election in which 100% of the electorate voted.(fn1) This remarkable performance edged out Hussein's own previous best, when he received only 99.96%) of the vote in 1995.(fn2) Few regard these elections as legitimate, of course; Hussein is widely understood to have been a dictator, not a democratically-elected president. Hussein ran unopposed in both elections, and voters' only choices were "Yes" or "No" in a referendum on whether to extend Hussein's absolute power for another seven-year term.(fn3) As the world knows, words like fraud and intimidation do not begin to capture the conditions under which these elections took place.(fn4)

The sham elections in Iraq under Saddam Hussein are perhaps the best recent evidence of what has been called the "nonnegotiable political status" of democracy in the modern era: the idea that democracy has attained an "obligatory character" because it is demonstrably superior to other forms of government.(fn5) Today even absolute dictators seldom reject democracy outright, but argue instead that their people are not yet ready for democracy or, as in Hussein's case, that their governments are actually more democratic than they appear.(fn6)

But if democracy has attained near-unanimous endorsement as a political ideal, considerably less agreement exists as to what democracy actually entails. When the Greeks coined the term demokratia to describe the government of their city-states some 2500 years ago, the system was distinguished from the aristocracies that preceded it by the political equality of each citizen.(fn7) The word demokratia means "rule of the people," or as we say today, majority rule. These two concepts, political equality and majority rule, remain fundamental to any modern theory of democracy, and no political system that does not aspire to both can rightly be called democratic. But democracy remains a contested ideal because these fundamental concepts are in tension. The tension arises because majority rule can produce outcomes that infringe upon the political equality of the minority: most obviously, it can prevent the minority from participating in the political process.(fn8) When and how to protect the minority in a system of majority rule-the "countermajoritarian problem" of democracy-is an ongoing question for any democratic state.

This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy."(fn9) Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law is useful as a means to address the decline of electoral competition in the United States and its consequences for the democratic character of our government. Antitrust law also provides a legal framework for distinguishing between nonpartisan and bipartisan legislation, as the analogy helps distinguish between legitimate regulation of the political process by the state and collusion in restraint of democracy by the two major parties.(fn10)

Part II begins with a discussion of elections' function in a democracy, addressing the lack of electoral competition in the United States and identifying prominent anticompetitive features of American democracy, mainly modern ballot access laws. Part II provides a brief history of ballot access laws in the United States and an analysis of their justification. Part III analyzes the Supreme Court's modern ballot access jurisprudence, starting with the first minor party challenge to a modern ballot access law in 1968 and tracing the erosion of candidates' rights since then. Finally, Part IV sketches an approach to ballot access jurisprudence that offers greater protection to candidates' rights by analyzing ballot access laws according to the principles of antitrust law.

II. The Role of Elections in Democracy

Most of the important decision-making in the Greek city-states was performed by an Assembly, to which all citizens were admitted.(fn11) In this form of democracy, political equality was secured to the extent that each citizen had an equal opportunity to participate directly in the decisions by which he would be bound.(fn12) While direct democracies still exist (for example, in the local governments of some New England states), practical considerations strictly limit their size.(fn13) Modern democratic governments are therefore representative; the sheer number of people involved makes the direct participation of each person impossible. For this reason, the election of representatives can be considered the fundamental transaction of modern democracy, because elections are the primary means by which citizens participate in the government that represents them.

The reasons democracy remains a contested ideal become apparent when the mechanics of the fundamental voting transaction are fleshed out. It is not clear, for example, exactly how elections bring about a representative government. Under one view, elections ensure that government represents the people by causing elected officials to be responsive to voters.(fn14) Under this view, a representative government is one that adopts the policies voters signal that they prefer. Alternatively, a government might be considered representative if elections enable citizens to hold elected officials accountable.(fn15) Under this view, a government is representative of whatever policies it adopts as long as voters can hold elected officials accountable by voting for or against them in the next election.(fn16)

Further disagreement exists over what counts as a representative government and what a government must do in order to represent the people. Some argue that elected officials must act on the wishes of the majority; others argue that officials should act in the way the officials think is best for the majority.(fn17) Some argue that officials should act as the majority wanted when a policy was adopted; others argue that officials should act as the majority would want in retrospect.(fn18) Disagreement exists even with regard to who constitutes the majority-is it the specific majority that elected a representative, or any majority? None of these questions has a definite answer; the only thing that seems clear is that a government is not representative if it acts in a way that no majority wants.(fn19)

One important fact cannot be overemphasized in light of these disagreements. Lack of theoretical consensus has not inhibited the development of democracy in the real world. Since 1980, at least eighty-one countries, thirty-three of them military dictatorships, have shifted from authoritarian to democratic rule.(fn20) Moreover, the basic formal structure of representative democracy has not changed for the last two centuries: in every representative democracy, citizens select representatives in elections; citizens are free to make demands, but not to issue binding instructions; and the representatives remain subject to periodic elections.(fn21) What this illustrates-the proliferation of democratic states and the historical stability of democratic structures-is that democracy is an eminently viable form of government, even if theorists cannot agree as to how or why.

Given the divergent views with respect to the basic purpose and mechanics of democratic government, perhaps the most that can be said with certainty about the role of elections in representative democracy is that they issue an authorization to rule.(fn22) But certain conditions follow from this basic fact that are consistent with any theory of democracy. First, if the authorization is to be valid, then it must be given freely- citizens must be free to vote for the candidate of their choice. Second, candidates must be free to participate in elections and compete for citizens' votes. Third, entry barriers should not be so great that candidates advocating alternative policies are excluded from the competition. To be sure, these "competitive conditions" prescribe an ideal that no actual democracy completely fulfills. Ultimately, however, a state is more democratic to the extent that it meets these conditions, and less democratic to the extent that it falls short of them.(fn23)

Generally speaking, the more restrictive the political process-the more citizens it excludes, and the more limitations it imposes on those who do participate-the less competitive the electoral system and the less democratic the government it produces.(fn24) At one extreme are autocratic states with sham elections; at the other is ideal...