Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny
288
Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny
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Overview
As the national campaign manager for Ralph Nader’s historic runs for president in 2000 and 2004, Theresa Amato had a rare ringside role in two of the most hotly contested presidential elections this country has seen. In Grand Illusion, she gives us a witty, thoughtful critique of the American electoral system, as well as a powerful argument for opening up the contest as if people and their daily lives mattered.
While making the case for specific reforms in the United States’ arcane system of ballot access laws, complex federal regulations, and partisan control of elections, Amato also offers a spirited history of how third-party and Independent candidates have kept important issues on the table in elections past and contribute to our country’s political life. Even the most fervent Nader critics will think twice about Nader’s role in 2000, thanks to Amato’s trenchant factual analysis.
Looking beyond the Nader story to campaigns waged by challengers John Anderson, Ross Perot, Pat Buchanan, and others, Amato shows how limiting ourselves to two candidates deprives our country of a robust political life, strips would-be contenders of their free speech and association rights, and cheats voters out of meaningful political choices.
“Amato displays an encyclopedic knowledge of election law, and her recommendations for election reform, including a comprehensive plan for ‘Federal Administration and Financing of Elections,’ are crucial contributions to the debate over election law.” —Publishers Weekly
Product Details
| ISBN-13: | 9781595585073 |
|---|---|
| Publisher: | New Press, The |
| Publication date: | 08/13/2019 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 288 |
| Sales rank: | 961,352 |
| File size: | 1 MB |
About the Author
Read an Excerpt
CHAPTER 1
Ballot Access Laws Since the Time of Cholera
The two major parties are in the business of winning elections rather than promoting democracy, and elections can be won by disenfranchising opponents, making it procedurally difficult for them to vote or not counting their votes at all.
— Alexander Keyssar, "Reform and an Evolving Electorate"
"Are You Registered to Vote?"
In August 2004, on the steamy streets of Washington, DC, I found out firsthand that asking whether someone is registered to vote may be one of the more complicated questions in the United States. Registration to vote in a U.S. federal election is not a federal requirement. We let the states dictate the terms of registration. Thus you don't have to be registered to vote in North Dakota, the only state with no registration requirements, but in all the other states you do, by state-imposed criteria. In most states, including North Dakota, you must be a resident at least thirty days before the election. As of 2007, seven states would let the voter register on the same day as the election. Some states limit eligibility because of criminal status. All states now require you to be at least eighteen and a U.S. citizen, though this was not always the case.
In Canada, citizens are automatically registered to vote in a National Register, continuously updated by the federal government, but citizens may opt out and are protected by privacy laws. In the United States, however, all of our voters have to "opt in." We have opt-out policies in the commercial sector for phone solicitations (the Do Not Call List) and privacy violations, but opt-in policies in the public sector for the civic act of voting.
As one of the few DC residents on the Nader campaign in 2004, and with just a few days to go before the DC deadline to collect valid signatures to put Ralph Nader and Peter Miguel Camejo on the ballot, I decided to help out in the sweltering heat to get a taste of what the valiant circulators were experiencing in trying to collect signatures for the Nader campaign.
I was asking this question — "Are you registered to vote?" — because if you run for president as a third-party or independent candidate (a candidate who is running as the nominee of several minor parties or no party at all), you are forced to comply with an unimaginably arcane set of rules that are different in each of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, and the three territories. The two-party-controlled state legislatures pass laws and the election administrators — usually through a board of elections or a secretary of state's office — apply the laws and establish the regulations that determine how a candidate gets to be on the ballot. The Supreme Court has said that this process cannot be "overly burdensome" and that the regulations, if they are severe, have to be "narrowly tailored" to meet state interests because these state rules butt up against a candidate's competing First Amendment constitutional rights to petition, to speak, and to participate in free association.
Our goal in DC was to collect 5,000 signatures to meet a 3,600 signatures state requirement. If DC were a battleground state, we would have aimed for between double or triple the signature requirements to inoculate against multiple efforts — by Democratic partisans or partisan officials — to strike Nader and Camejo from the ballot in the states where the vote could be close, as described in Chapter 4.
So when you need to collect 5,000 signatures of registered voters in the District of Columbia, or in any state, what do you do? Like a good scout, I first made sure I was wearing the appropriate outfit — comfortable shoes and clothing that made it less likely I would be taken for a nut or a mugger! Armed with clipboards, petitions, campaign buttons, and pens, I went to a metro exit, figuring that this would be a very highly trafficked place. Rookie mistake! Of course it is highly trafficked — but with people who live in Maryland or Virginia and thus are not registered to vote in DC, if they even know where or whether they are registered to vote.
For the 2004 election, approximately 142 million people, or 72 percent of the voting-age citizen population in the United States, were registered to vote, which was the highest since 1992 and up 12.5 million people since 2000. So even assuming everyone you meet on the street lives in the state in which you are circulating (an unwise assumption in a place as cosmopolitan as DC), you are already starting with the significant disadvantage of having 28 percent of people not registered. On the order of 15 percent of the eligible voters, or more than 9 million Americans, also move from one state to another each year, and 40 million total move (the difference being those moving in state), making it difficult for both the voters and the state to keep track of voter eligibility in any particular local jurisdiction. And if you were registered at one address and moved, you may no longer be registered to vote, even if you moved in the same jurisdiction. Modern-day mobility, coupled with the lack of ability by the states to maintain accurate voter registration databases, creates registration chaos. Finally, factor in the general lack of citizen interest in voting — only 64 percent of the citizen voting-age population turned out in the 2004 presidential election, which was higher than the 60 percent in 2000 — and you will have some sense of the challenge third-party and independent candidates face just getting over the ballot hurdle. Even in 2004, billed as a "high-stakes" presidential election, "more than one in three eligible voters did not participate." Now add the aversion of most people on the street to being confronted by anyone with a clipboard.
So on the hot August nights I was out collecting, I tried to find registered DC voters willing to sign our campaign's petition. The first thing I noticed is that as a society we have evolved from congregating on the street corners to discuss whether to take on King George III and subject ourselves to taxes to blogging on the Internet and reading "Politico." People are more likely to be in front of their computers posting a critique or making a YouTube video than plotting a Boston Tea Party. Indeed, a third of the people I encountered could not even be physically approached because they had on headphones or were talking on their cell phones.
Unlike candidates in Britain and most other countries, third-party and independent candidates in the United States have to spend substantial percentages of their time and resources petitioning their fellow Americans just to get on the ballot. And if you are not on the ballot, your candidacy does not exist. No ballot access, no votes.
Candidates for office are able to put their names on the general election ballot either by being the nominee of their party, if they are majorparty candidates, or by having to collect signatures on a petition if they are third-party and independent candidates whose party does not have a ballot line. Sometimes third parties have ballot lines because they petitioned to obtain one or received enough votes under the laws of their states to retain an official party line on the ballot from one election to the next. If the third-party candidate does not obtain the threshold number of petition signatures or did not obtain the state-required minimum number of votes during the previous election to qualify, the third-party candidate has to start petitioning all over again, each subsequent election. Thus, even though the Libertarian Party has petitioned onto the ballot in virtually all of the states for most of the elections since it was formed in 1971, because its candidates only obtain the threshold for ballot retention set up by the two-party-dominated state legislatures, in about half of the states (twenty to twenty-five) the Libertarians have to start all over again each election cycle in the remaining states.
Third-party and independent candidates must often petition to be on the primary election ballot as well, if they are seeking the nomination of a minor party. Some states do not permit a person who has voted or will vote in a primary to also sign a third-party candidate's petition for the general election. (I didn't write these rules; I just had to learn all of them!)
When we started the Nader 2000 campaign, the Green Party had twelve ballot lines earned from having petitioned or run candidates in prior races that reached a requisite threshold that allowed the party to keep its line. Ultimately, thanks in large part to the petitioning work of the local Greens and the campaign's fieldworkers, Ralph Nader and Winona LaDuke, his 2000 running mate, made it onto the ballot in forty- three states and the District of Columbia. In 2004, the Greens started with twenty-two lines, in part because of the showing of popular local Green candidates and Nader's showing in the 2000 race, which allowed the Greens in some states to keep or gain more ballot lines.
In 2004, however, Nader had decided not to seek the Green nomination and their ballot lines. He chose to run as an independent. So on February 22, when he declared his candidacy on Meet the Press, the campaign had to start the ballot process from scratch. We had no ballot lines, and we were facing fifty-one deadlines — ranging from May 10 to September 16, 2004 — in all the states, many of them with onerous conditions for collecting the requisite number of petition signatures to be able to have ballot access. In 2004, a third party or independent had approximately six and a half months to collect 634,727 valid signatures across the United States. That's almost 4,000 valid signatures a day. A campaign really has to collect almost double the number required to protect against spoilage — invalid signatures from incorrect voter information (the voter is not really registered to vote) or incorrect voter registration records (the state cannot tell whether or not the voter is registered) — to assure the campaign will net the required number of valid signatures.
If you are a campaign that is subject to a massive major-party attack and partisan administrators in control of the local election, as the Nader campaign was in 2004, you have to collect between double and triple the required number of signatures to inoculate against lawsuits and challenges, as I describe in detail in Chapter 4. So a third-party or independent campaign really has to collect 8,000 to 12,000 signatures a day. Now, if you have ever tried to circulate a greeting card in your office or among family members to get people to sign on time for a birthday, or if you have tried to get signatures for a block-party permit, you may have a ten-thousandth of an idea of how difficult it is to collect this many signatures across fifty states and the District of Columbia.
Accordingly, the Nader campaign divided the country into three segments and had three national field coordinators at the headquarters in DC responsible for each of three lists — what we called the first-, second-, and third-tier states, based on levels of difficulty. There were thirteen states in the hardest (most difficult to succeed in) Tier One; fourteen in Tier Two; and twenty-four in Tier Three. (In 2000, we divided them into extremely worrisome, very worrisome, and worrisome.) The first deadline was Texas, a first-tier state, which required in 2004 64,011 valid signatures to be collected — exclusively from voters who did not vote in the primary! — in the sixty days from March 10 to May 10.
As we started the laborious process of trying to get signatures, I kept thinking that Ross Perot spent more than $18 million to get on the ballot in 50 states in 1992. We knew we were not going to come close to having that kind of money. By March 2004 we had about $260,000, and most of that came from Ralph's February 22 Meet the Press announcement. At first we were lucky to be able to pay even one person per state in about half the really tough Tier One states to help coordinate a group of volunteers. Even most of our coordinators were volunteers.
Each of our three national field coordinators was in charge of a list of states that combined some top-tier and some lower-tier states. The first priority was to confirm each and every ballot access rule, procedure, curlicue, or unpublished policy with the state authorities. Michael Richardson, an activist and former paralegal I had worked with a decade ago in a ballot access lawsuit in Illinois, was brought on board to help with this process. He read the statutes in each state, attempting to confirm the often vague and conflicting laws to ensure that we began the petitioning process properly. (There is nothing worse than spending time and energy collecting signatures on a defective petition!) He called the head of elections in each state to confirm the current laws because many of these states have a procedure for ballot access or some other facet of third-party or independent participation that is known to be against the law as interpreted by the courts. As Richardson wrote in his publication Voter Voice, as of October 2005, there were at least six "Footnote States" — states in which the state legislatures did not amend their election codes even after a judicial declaration of unconstitutionality.
After confirming the requirements, each state coordinator had to develop a valid petition, recruit qualified circulators to help circulate the petition, and collect the required number of signatures in each state from qualified signers. This is much, much more difficult than it sounds.
Let's start with the actual physical requirements of the petition. Some states have prescribed petition forms; other states leave minorparty candidates to their own devices to come up with something resembling what is "required" based on trial and error. Does the state provide an actual petition or a sample petition? Some states do; some don't. Some states will let the third-party or independent candidates photocopy forms to circulate. Others require that the candidates obtain an original form (sometimes rationed) from the state. California will take petitions on 81/2 × 11-inch or 81/2 × 14-inch paper or on a napkin, whereas Maine's petition is provided by the state and is 11 × 17 inches and on pink paper. We had to beg Hawaii in writing for additional petitions, as they would ration them, costing us crucial days and lost opportunities to collect signatures.
A campaign must also be aware of whether information needs to be filled out or presented in a certain way on the face of the petition. Disputes arise because of ambiguity. When the petition says "candidate address," for example, does that mean domicile, residence, mailing address, street address, or the address at which the candidate is registered to vote? Is the proper terminology for an independent on a petition in a given state Independent or Unaffiliated or Disaffiliated or No Party? Ohio requires each petition to bear a photocopy of the signature of the candidate.
Often, details about how to craft or fill in the face of the petition are not specified, leaving the window open for challenges by political opponents or partisan administrators down the line. For, unlike a birthday card, a candidate's petition must conform with every minuscule requirement in each state in which it is being circulated. The District of Columbia printed a sixty-page guide titled "Elections 2004, District of Columbia Candidate Qualification and Ballot Access Guide." Woe to those who fail to do exactly as the guide instructs. The entire candidacy can be voided in a state for failing to meet any one of the requirements.
Then there is the question of whether the candidates must designate a party on the petition or whether candidates who are a member of a party may actually run as an independent. Though running as an independent with Ralph Nader, Peter Miguel Camejo was a member of the Green Party. In some states, that simply wasn't allowed, so the campaign either had to seek another party's state party line — for example, the Independent Party in Delaware — or offer a "stand-in" vice- presidential candidate in that state, as we did in Oregon.
In addition, there is the question of whether the vice-presidential candidate "must" appear or "may" appear on the face of the petition. And if the petition circulating starts before the presidential candidate names the vice-presidential candidate, or there is a nominating convention to select a vice-presidential candidate, then there may be a question of whether a stand-in vice president (VP) on the petition can be substituted later by the formally chosen vice-presidential candidate. Most states don't say anything about this issue in their laws; some states specifically prohibit this substitution and refuse to substitute other candidates. Jan Pierce, a retired Ohio union leader, had to be our vice president in Alabama because the Democratic secretary of state's office apparently overlooked the substitution papers and then refused to allow us to substitute Peter Camejo after he was selected to be Ralph's vice president in June, claiming it was then too late in October. Some states allowed a substitution only after they were sued or threatened with suit. In 2000, Pat Buchanan had to get an administrative ruling from the state of Illinois to have his actual vice president, Ezola Foster, replace the VP named on his petition, Tom Piatak. Some states, like Ohio, have internally inconsistent laws.
(Continues…)
Excerpted from "Grand Illusion"
by .
Copyright © 2009 Theresa Amato.
Excerpted by permission of The New Press.
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Table of Contents
FOREWORD: by Ralph Nader,
ACKNOWLEDGMENTS,
INTRODUCTION,
PART 1: THE FANTASY OF FAIR PLAY,
Chapter 1: Ballot Access Laws Since the Time of Cholera,
Chapter 2: To Third Party or Not?,
Chapter 3: Suffer or Sue: Searching for a Level Playing Field,
Chapter 4: Democrats Fighting the Last War,
Chapter 5: The Courts and Third Parties: "Delphic," Hostile, and MIA,
PART 2: HOW RIGGED IS OUR DEMOCRACY?,
Chapter 6: Regulations, Regulations: Beware of the Code,
Chapter 7: The Corporate Fourth Estate,
Chapter 8: "The Debate Commission Sucks",
Chapter 9: One Person, One Vote. Or Maybe None. Or Maybe Two.,
CONCLUSION,
NOTES,
INDEX,