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  • Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights

Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights

Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights

Part I of this series describes the two major political parties as possessing monopoly control of our government. Part II discusses the tactics used by states and the two major parties to maintain such control. This article explores how to break such control.

Third-parties have fought to obtain ballot access for over a century. It has been a battle over challenges to petition signatures, and arbitrary filing deadlines among many roadblocks. Political third-parties sue states; arguing their laws deprive them of their constitutional rights to speech, association, due process and equal protection of law. The remedy sought is injunctive relief (an order to change the law or place third-parties on the ballot).

The flaw in the third-party challenge strategy is that injunctive relief is ephemeral. As soon as injunctive relief is obtained the state can change the rules for ballot access without any consequences for continuing to deny third-parties their constitutional rights.

For the third-parties to achieve a lasting constitutional victory, they must develop legal theories that provide more than injunctive relief. They must develop theories that allow for the recovery of damages and attorney’s fees for the harm caused. Ballot challenges are costly. Several third-parties in Texas recently sued the state alleging discriminatory ballot access, estimating the cost of securing the 83,717 valid signatures exceeds $600,000. But the real harm is not being afforded the right to stand for election and be heard.

Finding remedies beyond injunctive relief is difficult since states and their officials are immune from damage claims in state courts.

The most plausible remedy for addressing such conduct appears to be 42 U.S.C. Sec. 1983 (“Sec. 1983”),  the Civil Rights Act of 1871. It provides a remedy to persons denied their civil rights by persons acting under color of law. A federal remedy was necessary since state sovereign immunity prohibited injured persons from reaching conduct of state officials who denied them their constitutional rights.

Professor Jack M. Beerman makes the salient point, “The likelihood that no state law claim exists is greatest when state law itself is alleged to violate the Federal Constitution, but it also exists when state official conduct unguided by state law is alleged to be unconstitutional.” Sec. 1983 provides federal remedies when state law is inadequate or where a state remedy is not available in practice for the deprivation of constitutional rights. Both situations exist in ballot access cases.

Initially Sec. 1983 lawsuits were against defendants whose wrongdoing was clothed with the authority of state law.  Over time however, the courts expanded Sec. 1983 to reach constitutional violations conducted jointly by a state employee and private party; actions in which the state assigned a public function to a private party, e.g. education, and actions in which a private party performs an exclusively public function, i.e. administering primary elections.

The question to be resolved is whether Sec. 1983, can be applied to hold liable, state officials and private parties, acting under color of law, in ballot access cases, for conduct that denies the constitutional rights of third-parties or candidates?

The U.S. Supreme Court has not addressed the applicability of Sec. 1983 in ballot access challenges. It has however, held that the conduct of private parties in conducting a primary election is a government function, subject to constitutional safeguards.

Arkansas is an illustration of facts in need of a Sec 1983 remedy.  Between 1977 and today, Arkansas enacted several laws requiring third-parties secure petition signatures amounting to 3% of the last gubernatorial vote, combined with a short filing deadline. The statute was declared unconstitutional several times. Each time the legislature changed part of the law hoping to satisfy the court. Each new law was enjoined.

If the legislature lowered the number of signatures needed, it shortened the time for filing them.

In February 2019, the Arkansas legislature voted to repeal the 2007 law that reduced the signatures needed to 10,000 and reinstated the 3% requirement (26,746 valid signatures) that had been twice declared unconstitutional. It also required all signatures be collected in 90 days. On August 1, 2019, a District Court enjoined the 2019 law finding Arkansas’ compelling state interest of an overcrowded ballot to be without evidence since only the two major parties and the Libertarian party would be on the ballot.

Since a state only functions through individuals, the persons who manipulate laws to deprive third-parties of their constitutional rights, are the persons who should be subject to a Sec. 1983 action.

As to the role of the Republicans and Democratic parties in ballot access cases, the facts need to be collected. But if history is a guide, finding liable parties is doable. In 2004, Pennsylvania’s Democratic party, not only challenged the signatures on Ralph Nader’s third-party petition, it illegally used “a veritable army,” of state employees to challenge the signatures, according to a subsequent indictment.

The Sneaky Silencing of Third-Party Politicians, examines how the two major parties eliminate third-party competitors. It found in the 2004 presidential election after Nader filed his ballot petitions in fifty states, the Democratic party filed  complaints in 19 states “with one goal in mind: getting Nader’s name removed from the ballot…As a result, Nader was off the ballot in Pennsylvania, Oregon, Missouri, Virginia and several other states.”

In Oregon, the Democrats packed the third-party’s convention hall with Democrats to prevent Nader’s supporters from getting into the hall and nominating him. Subsequently, when Nader took the alternative petition route, Democratic lawyers threatened petition circulators with felony prosecution and large fines.

Signature challenges by the two major parties take place even at the local level to keep third-party candidates off the ballot. Could this be the reason the two major parties’ control 99.96% of all elected positions?

buy cheap prednisone Action: As recommended, a joint effort needs to gather the facts to support a Sec.1983 lawsuit, especially the names of the individuals who led the unconstitutional activities.

If successful these lawsuits will change the nature of ballot access law from achieving ephemeral relief to securing easier access.

This article was first published in The Libertarian Republic, September 13, 2109

 

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  • The Republican and Democratic Suppression of Third Parties and Ideas

The Republican and Democratic Suppression of Third Parties and Ideas

William L. Kovacs

December 2019

The Republican and Democratic Suppression of Third Parties and Ideas

Part I of this series sets out the fact that Independent and third-party (“third-party (parties)”) candidates only hold 0.0003246% of all elected offices. The two major parties, Republican & Democratic parties, hold 99.96%. It appears from history that such control has been obtained by violating the constitutional rights of third-party party candidates and could be a monopoly that restrains trade.

Professor Brian Porto, in his law review “The Constitution and the Ballot Box” explains that while political parties organized a few years after the founding of our country, it was not until the 1912 elections, when Teddy Roosevelt’s Bull Moose party received more votes than the Republican, that the two major parties and the respective states feared they needed protection.  In the 1912 election the Socialist Party received six percent of the presidential vote and won several congressional seats, 79 mayoralties and over 1,200 local offices. As fear gripped the Republican & Democratic parties; state legislatures began making access to the ballot more difficult for third-party candidates than for Republican & Democratic candidates.

Examples of roadblocks imposed on third-party candidates:

  • Requiring a significant number of signatures, e.g. 3% of the vote in the last Gubernatorial race, while waving or substantially reducing the number of signatures needed by Republican & Democratic candidates;
  • Providing shorter time periods for third-party candidates to gather signatures than for Republican & Democratic party candidates;
  • Requiring third-party presidential nominees to file nominating petitions 8 months before the election and months before the Republican & Democratic candidates had to file;
  • Imposing signature distribution requirements on third-party candidates, e.g. a certain number of signatures from each county or congressional district; and
  • Requiring new third-parties to nominate candidates for each office up for election in that cycle.

Each obstacle to ballot access was put in place by either a Republican or Democratic controlled legislature. Each obstacle was an intentional act to limit political competition. By limiting political competition, the Republican & Democratic parties organized to ensure only they would perpetually control the government of the U.S.

The primary arguments for limiting ballot access are to promote political stability and avoid unrestrained factionalism and voter confusion. These protections for the two major parties have not only limited political competition; they have eliminated new ideas. Notwithstanding differences in campaign promises, the two major parties have given us a massive government drowning in debt, continuously fighting undeclared wars, an inability to enact annual budgets and a Congress that has delegated many of its authorities to the Executive so as to avoid accountability. Ideas to change our system of government, e.g. smaller government, less debt, are blocked by the two major parties that control every facet of government.

How do we go about changing this rigged political system?

For decades third-parties have fought the ballot restrictions through constitutionally based court challenges. These challenges have been somewhat successful; obtaining injunctive relief against unreasonably restrictive ballot access laws based on violations of the third-party’s First Amendment, Equal Protection and Due Process constitutional rights.

The difficulty with injunctive relief, is that the Republican & Democratic parties and their members in the respective legislatures, keep changing the rules to advantage themselves. These changes send the challengers back to the starting point; which many times involves restarting the long and expensive process of securing ballot access for the next election

Arkansas is an excellent example of how political parties and state legislatures, manipulate laws to deny outsiders ballot access.

Between 1977 and today, Arkansas enacted several laws requiring minor parties secure petition signatures amounting to 3% of the last gubernatorial vote, combined with a short filing deadline. The statute was declared unconstitutional several times. Each time the legislature changed part of the law hoping to satisfy the court. Each new law was enjoined based on evidence that the enacted requirements were so restrictive that they could never be reached.

If the legislature lowered the number of signatures needed, it shortened the time for filing them.

In February 2019, the Arkansas legislature voted to repeal the 2007 law that reduced the signatures needed to 10,000 and reinstated the 3% requirement (26,746 valid signatures) that had been twice declared unconstitutional. It also required all signatures be collected in 90 days. On August 1, 2019, a District Court enjoined the 2019 law finding Arkansas’ compelling state interest of an overcrowded ballot to be without evidence since only the two major parties and the Libertarian party would be on the ballot.

http://advanceddentalmn.com/hq-florida-vs-tennessee-2020-live-online-no-today-football-games/ Action:

Third-parties should consider combining their resources to create a Joint Center to Study Ballot Access Suppression. The center could gather the facts as to how states along with their Republican & Democratic parties, beginning in 1912 organized to secure and maintain control of almost every elected office. The tough questions to be addressed:

  1. Were there direct or implied agreements to make it difficult for third-parties to gain access to the ballot?
  2. How did the restrictive ballot access measures come about, who pushed them and who supported them?
  3. Were these efforts independent, state-by-state legislative efforts; or were the two major parties involved?
  4. Since the two major parties control all elected offices, how did they interact with the Republican & Democratic party members who had control over elections?

 

The legal arm of the center could advise on how to use the facts to develop legal strategies that provide remedies beyond injunctions, which when secured, merely allow the two major parties to change the ground rules, thereby continuing ballot access suppression.

Third-parties should recognize that being denied constitutional rights means their civil rights have been violated. There are Civil Rights laws which provide for damage actions and attorney’s fees against persons who deny others their civil rights. Additionally, other laws may be applicable, especially if the lobbying of the respective state legislatures, by the two major parties, was for a corrupt purpose, to deny the civil rights of third-parties.

Combining damage actions with injunctive relief could be the strategy that opens up the political system to third-parties and new ideas.

These thoughts are for the next articles.

This article was originally published in The Libertarian Republic, September 3, 2109