Volume 29 Issue 2: Winter 2005

Article Excerpt

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

By Oliver Hall

I. INTRODUCTION: DEMOCRACY AND THE COUNTERMAJORITARIAN 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. This remarkable performance edged out Hussein’s own previous best, when he received only 99.96% of the vote in 1995. 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. As the world knows, words like fraud and intimidation do not begin to capture the conditions under which these elections took place.

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. 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.

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. 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. 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.” 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.

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.

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