Supreme Court continues record of hostility to minor parties and independent candidates
© Greg Nash

Among the 50 most populous countries, the United States and Nigeria are the only nations in the world with exactly two political parties represented in the national legislative body. (For a list of the 50 most populous countries and the number of parties represented in their legislative bodies, click here.) Election laws and debate practices in the United States make it extremely difficult, almost impossible, for the voters to launch a new major party. Consequently, in election after election, there is no realistic chance for a new party to displace either the Republican or Democratic Parties. This state of affairs is partly because the U.S. Supreme Court, for the last 23 years, has fostered the status quo and upheld laws that protect the two major parties from competition.


Starting in June 1992, the U.S. Supreme Court has refused to hear every case filed by minor party or independent candidates against restrictive laws that bar them from the ballot or debates or otherwise injure them, with only a single exception: a case from Georgia in which Libertarian Party candidates challenged the state law requiring all candidates for state office to be tested for illegal drugs.

Setting aside that exception, there are now 54 examples when minor parties and independent candidates asked for help from the court, and were refused, during the period from 1992 to the present. (To see a list of such instances that occurred before 2012, click here.)

But during the same period, when minor parties or independent candidates won in the lower court, and the state that lost the case then asked the Supreme Court to hear an appeal, almost half the time the U.S. Supreme Court took the case and reversed the decision, to the detriment of voters who support alternatives to the two major parties.

To be fair, since 1992, I must mention there are two instances when the Supreme Court heard cases that minor parties had brought after losing in the court below, but in both those instances, the two major parties were also in the case on the same side as the minor parties. But when minor parties or independent candidates are alone in bringing the case, and don't have the Democratic or Republican Parties as co-plaintiffs, since June 1992, they have always lost in the U.S. Supreme Court.

On Oct. 13, 2015, the court did it again. It refused to hear a California case that, in practice, bars virtually all candidates who are not Democrats or Republicans from the November ballot. The case, Rubin v. Padilla, brought by the Peace & Freedom, Libertarian and Green Parties, challenges the law that went into effect in 2011 and which states that all candidates run in June, and then only the two candidates who place first and second may appear on the general election ballot. This system, known as a top-two system, has also been in effect in Washington state since 2008. The record in these two states shows that if two or more members of the major parties run for an office, no minor party candidate ever places first or second in the primary and thus can never campaign or run in the general election. California even prohibits write-in candidates in the general election for the offices covered by the top-two system — congressional and state seats — but not the presidency.

During the period between June 1992 and the present day, the court's rulings have also negatively impacted minor party and independent candidates in all the relevant cases it did accept. In 1992, it upheld a Hawaii ban on write-in space on ballots. The decision, by Justice Byron White, said a ban on write-ins is necessary for "stability," ignoring the fact that at the time, Hawaii was one of only five states with a complete ban on write-in votes, which suggests that there was no real need for Hawaii to worry about its "stability." In 1997, the Supreme Court upheld Minnesota's ban on letting two parties jointly nominate the same candidate. The court said the Constitution permits the states to foster the 'two-party system," a term that the author, Chief Justice William Rehnquist, did not define.

In 1998, in an opinion by Justice Anthony Kennedy, the court said the Constitution permits an agency of state government to sponsor candidate debates and invite only the Democratic and Republican nominees. In 2005, in an opinion by Justice Clarence Thomas, the court said that Oklahoma was within its rights to forbid the Libertarian Party from holding an open primary. In 2008 the court, in an opinion by Justice Antonin Scalia, upheld a very severe New York ballot access law relating to judicial elections. Although this was a case brought by a Democratic candidate, relating to how candidates get on primary ballots, the decision impacted minor party candidates as well because sometimes state law makes it difficult for them to get on their own party's primary ballot.

Canada holds a national parliamentary election on Oct. 19, 2015. Canadians have the luxury of choosing among three major parties: the incumbent Conservative Party, the Liberal Party (which is now the centrist party for Canada) and the New Democratic Party (which represents the left). Polls show a very competitive election, and any one of these three parties may win. The Green Party is also on the ballot in over 99 percent of the districts, and the Bloc Québécois is on the ballot throughout Quebec. Various other parties are on the ballot in some of the districts. All of the Canadian debates between party leaders in this election season have included at least three parties, and some of them have included the leaders of four or five parties.

Canadians have this freedom because Canada has easy and equal ballot access for all candidates for the House of Commons. Each one needs 100 signatures and a filing fee of $1,000; the filing deadline is only three weeks before the election. By contrast, in the United States, ballot access for minor party and independent candidates is extremely difficult.

Georgia's petition requirements for minor party and independent candidates for U.S. House — they must collect approximately 20,000 valid signatures, notarize each petition sheet, and pay a filing fee of over $5,000 — is so severe that no candidate has been able to surmount the requirement since 1964. Arkansas requires independent candidates for the U.S. Senate to submit a petition of 10,000 valid names by November 2015 in order to be on the ballot a year later, and minor parties must submit such a petition by September 2015, 14 months before the election. North Carolina requires a minor party or independent presidential candidate to submit approximately 90,000 signatures, which are due in May 2016 for minor parties and June 2016 for independent candidates.

Dissatisfaction with both major parties, according to polls, is very high. Yet we don't see the rise of a major new party that enjoys popular support because the ballot access laws are severe, and also because the general election presidential debates are, in practice, limited to the Republican and Democratic nominees. The U.S. Supreme Court bears a major share of the responsibility for this state of affairs.

Winger is editor of Ballot Access News.