Ballot Access Laws in Arizona Are Too Strict

 

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Authors Note: This a Draft for An Op-Ed piece. Please feel free to provide candid feedback.

 

 

Many Americans are displeased with the present state of American politics. Much of this dissatisfaction is spurred by being limited to the narrow choice between two parties. Per a 2017  Gallup poll, 61 % of participants surveyed expressed that a third-party is a much-needed alternative to the present Republican/Democrat paradigm. While the idea of promising contender to the DNC/GOP establishment may receive quite a bit of fanfare from average voters that does not mean that such political force will be a reality. Unfortunately, countless third-party and independent candidates have been kept off the ballot by stringent ballot access requirements. Historically, as ballot access laws have become more rigorous the number of minor party candidates has decreased.  Effectively confining the number of choices available to the American voter.

The bulk of the prohibitive ballot access requirements that third-party candidates are subjected to are passed at the state level. Over the past couple of years, Arizona has consistently ranked among the states with the most onerous requirements. Especially after passing Bill HB 2608 back in 2015 which expanded signature requirements for a candidate to appear on the ballot, under ARS 16-322. This revision has been particularly burdensome to the Libertarian Party, which is arguably the strongest third-party contender in the state. Even when the Libertarian Party attempted to challenge the law in 2019 the Supreme  Court sided with the state. Concluding:

 

“… state’s signature   requirements   are   reasonable   restrictions   that   impose, at most, a modest burden on the Libertarian Party’s First and Fourteenth Amendment rights, while directly advancing Arizona’s  important  regulatory  interest…”

 

The Supreme Court also rejected the Libertarian Party’s 2020 appeal to contest the law. Leaving Arizona’s hopes of breaking up the present duopoly on politics in shambles. The prime culprit appears to be the 2015 revision to ballot access requirements which solidifies the current two-party dynamic. These restrictions should be eliminated because they fail to protect the voter, designed to target prevalent minor parties and impose direct violations on the First Amendment rights of voters and candidates.

 

Ballot Access Laws Fails to Protect the Voter:

 

The main arguments for stricter ballot access requirements tend to be shielding voters from confusion, ballot overcrowding, frivolous candidacies, and political stability. Historically, ballot overcrowding has never been cited as a direct reason for increasing signature requirements. Before the 1930s minor parties had very “lenient” access to the ballot in the majority of states. Even with lower barriers to entry the calamities of voter confusion and rampant frivolous candidacies seemed to be virtually nonexistent. Typically are issues that will be invariably sorted out by voter preferences. In the unlikely event of confusion, voters will levitate towards parties and policies they are familiar with. Candidates lacking strong convictions and direction will generally have potential votes re-direct towards another candidate. It is quite clear that these concerns are not pitfalls that the government must insulate the average citizen from. Especially, when most ballot access restrictions imposed by the state government tend to also exclude legitimate candidates.  These problematic quirks of liberal ballot access can easily be resolved by the voters themselves.

The second category of the aspiring purposes of ballot access laws is to protect voters from political instability. Preventing “unconstrained factionalism” from eroding the political stability of the country. Undermining the steady nature of a two-party system which interrupts the proliferation of splinter factions. The more probable side of the political stability argument suggests that it would help prevent indecisive elections. Through directing votes to one of two prominent parties it will help reduce the odds of a stalemate. Whereas dividing votes between three or more parties would increase the probability of this issue be prevalent. This argument is flimsy at best because indecisive elections were not a common problem before the restrictive ballot access laws of the 1930s. Beyond the evidence of history, Public choice theory also demonstrates how accessible ballot access will not compromise political stability. The country being splintered into a multitude of quarreling factions is unlikely, per the Median voter theorem to win an election you need to aim for the center. There are only so many unique ideologies that can be formulated that are not so extreme that it philosophically alienates moderate voters. Putting an informal constraint on the speculated “electoral chaos” that would ensue from looser ballot access restrictions.

 

Ballot Access Laws Are Designed for the Benefit of the Major Parties

 

There is also some evidence to suggest that ballot access laws are catered to benefit the existing mainstay parties.  The United States has had ballot access laws since 1888. The proliferation of strict ballot access requirements did occur until the 1930s and was generally perceived as a means of prohibiting members of the Communist Party from running for elected office.  These tactics over the years have been applied to other minor parties once state governments realized that manipulating signature requirements proved to be an effective means of keeping third-party candidates off of the ballot. For example, back in 1995, the state of Alabama tripled the signature requirements to appear on the ballot. This was a direct result of the Patriot Party diverting votes that would have otherwise gone to a Democratic candidate. Third-parties have achieved some modest victories in court against unjust ballot access laws. Such as in Burdick v. Takushi (1992) where Hawaii’s ban on write-in candidates on elections ballots was ruled as unconstitutional. However, generally, the courts rule against the complaints of third-party candidates. Simultaneously the courts tend to minimize the Constitutional concerns of third-party candidates. Demonstrating that the institutional barriers to the ballot box are sealed with the blessing of the Supreme Court. As evident in the  2019 ruling of  Arizona Libertarian Party v. Hobbes.

One glaring fact that often gets ignored is that the majority of ballot access laws have been formulated by legislators who are affiliated with one of the major parties.  This presents an unfortunate conflict of interest, as this brings into question the motives of passing such laws.  Therefore, making it difficult to determine whether these laws are being passed for the benefit of the voter or the callous self-interest of those involved in politics. Creating an internal lever for our elected lawmakers to preserve their influence in state politics. Solidifying this potential rationale for passing  HB 2608 (2015) has been the commentary of a publicly known affiliate of the Republican party. Insinuating that the Libertarian Party has been siphoning votes away from the GOP.  This individual stated quote: “I can’t believe we wouldn’t see the benefit of this”.

 

This statement implies that increasing the signature requirements was not done to foster political stability or reduce ballot overcrowding. Rather, it was passed to aid Republicans in retaining political influence in Arizona.

 

 

Strict Ballot Access Requirements Encroach Upon the First Amendment:

 

               

Strict ballot access requirements present some unique challenges to the First Amendment that often are unscored in many of the Supreme Court decisions. Per the revised signature requirements in Arizona, the Libertarian Party would require to obtain petition signatures from nonparty members. Viewed by the party’s attorney in their 2019 case as a violation of free association protected under the First Amendment. While the free association argument is a valid concern, it is an only peripheral concern. Above all, voting is a form of free expression.  The courts typically ignore the expressive function of voting, however, it is a form of speech that should be protected.  A vote can serve as a form of protest, a vote can reflect a certain philosophical point-of-view.  The market-place of ideas may lack tangible currency; however, the value of ideas can always be quantified by the will of the voters.  A mere vote can convey so much more than a constituent preferred candidate. It is generally a representation of a set of ideas, which can be symbolic or literal. Keeping third-party candidates off the ballot effectively limits the variety of forms of self-expression allotted to the voter. Operating as a circuitous form of censorship.

Imposing burdensome ballot access requirements not only limits the free speech of voters, but also the First Amendment rights of candidates. Campaign platforms present specific positions on issues that undoubtedly serves as an expressive function. Lending itself to be interpreted as a protected form of speech.  Third-parties have been invaluable for presenting novel perspectives on policy issues.  For instance, the  Liberty Party that formed in the 1840s brought the abolition movement to the table when most major parties refused to entertain ending slavery. Even in the modern era, the candidacy of Ross Perot for the Reform Party back in the 1990s presented alternative views that were invaluable to public discourse. Such as Perot being one of the few aspiring presidential candidates critical of the NAFTA agreement.  Perot reminding us of the virtue of balanced budgets. Through keeping minor party candidates off the ballot, we are in-turn we are limiting the variety of opinions in public discourse. This is nothing more than a legally sanctioned form of de-platforming.

 

Conclusion:

 

                A significant number of voters may be frustrated with the current two-party duopoly on American politics. Little can be done if prohibitive ballot access laws work to keep third-party candidates off the ballot.  These laws do not protect voters, nor do they secure our political institutions. Seemingly existing to keep the status quo intact with few substantive arguments soundly justifying such measures. Until the Supreme Court starts taking the constitutional concerns of minor parties seriously, the two-party system will remain.  It would foolish to expect the Republican and Democratic state legislators to repeal laws that serve their interests.

Bill HB 2608- Third Party Ballot Access in Arizona

 

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Bill HB 2608 is nothing more than a thinly veiled ploy to keep third-party candidates off the ballot. The bill passed back in 2015 greatly increased the required of signatures for nomination. Meeting the qualifying numbers would surely be a breeze for Republican and even Democratic contenders. What about Libertarians or even aspiring candidates in the Green Party? This measure effectively narrows the scope of options to the two main parties.

 

The greater of two evils is still evil. Overall, this bill was a calculated move by the Republican party. Some pundits have even pointed to this piece legislation as a countermeasure addressing Libertarians siphoning votes from the GOP. Clearly demonstrating the incentives behind passing HB 2608, retaining power. The Republicans have their tentacles firmly wrapped around the populated central region of the state. Democrats have their strongholds in Flagstaff and Tucson. Apparently, there isn’t any room in Arizona for a third option. Not necessarily by choice by rather by design. Making the whole notion of “democracy” questionable at best. For the Republican party to feel threatened by Libertarians is absurd and bordering on paranoia.

 

For an effective democracy to exist we need more than two questionable choices on the ballot.  Granted, most political parties on the fringes are about as organized a clown car traffic accident. Let these candidates fail on their own merits versus being stopped by institutional barriers. Especially when the motives for erecting these barriers are shamelessly opportunistic.