[Marxism] Pt 1 Nader (1958) Do 3d Parties have a chance?
wsheasby at earthlink.net
Mon May 10 21:59:04 MDT 2004
This is the full article which the American Socialist digested. I have
broken it into three parts. -Walt
DO THIRD PARTIES
HAVE A CHANCE?
By RALPH NADER and THEODORE JACOBS
Harvard Law Record, October 9, 1958
Ralph Nader and Theodore Jacobs, the co-authors of this article, both
graduated from the Law School last June. Mr. Nader is a former editor
of the RECORD.
Most people will agree, as a general proposition, that our
democratic faith is reflected in our treatment of minorities. But, as
so often happens with national professions, it is in the translation of
these declarations into actual practice, in the testing of these
principles in the crucible of actual events, that reservation begin the
process of erosion. One area in which such erosion may be seen is that
dealing with the laws governing the rights of minority political
parties to place the names of their candidates on primary and general
In state after state there is a practical monopoly of the ballot
by the Democratic and Republican parties. The perpetuation of this
monopoly is insured by laws which subject the entry of new or minority
party slates to the ballot to almost impossible burdens, and by
judicial interpretations of these laws which ignore their prejudicial
effect on small parties.
The fact that this problem is still with us is evidenced by a
long line of decisions upholding state requirements for small parties,
the most recent being one handed down in November, 1957, by the
California Supreme Court. In that decision, the primary law was upheld
despite pleas by the Socialist Party and the Christian Nationalist
Party that it would cost each party up to $400,000 to qualify under
that state's petition requirements.
It must be made clear that reference is not being made to
political success, but rather to ballot access. Political success is
impeded by deeper political patterns such as the election system of
"plurality-take-all." Our emphasis here, however, is on the nature,
operation and rationale of the laws preventing minority parties from
merely placing the names of their candidates on the election
What requirements must a small party or independent group
meet in order to place its candidates on the ballot? There are 48 different
answers to this question. Each state has its distinctive statutes,
ranging from liberal to harsh, with the least populous more often in
the former and the more heavily populated in the latter category. It is
possible, however, to give a brief survey of the present statutory
Barriers and Alternatives
Established political parties nominate their candidates in most
states through a party primary which permits a direct expression by the
voter of his preferences for party nominations. But minority groups are
not permitted to nominate by means of party primaries unless they have
received a certain percentage or number of votes cast in the preceding
gubernatorial election. The minimum percentages stretch from 1% in
Connecticut to 25% in Virginia, while the minimum figures range from
500 in Delaware to 50,000 in New York.
If the small party does not qualify for the primary, it may
resort to the use of the independent nominating petition, which is
essentially a device that allows a group to place its candidates on the
ballot if a sufficient number of signatures is obtained. While the
independent nominating petition is the most widely used, it also
confronts the small party with its most onerous burdens.
Without taking into account all the minor variations in the
several states, three main aspects of the independent nominating
petition may be treated:
(1) The number of signatures required;
(2) Apportionment of these signatures throughout
(3) Stipulations concerning authentication of signatures and
restrictions on persons who sign petitions.
In its Model Election Law, the American Civil Liberties Union
urged that minor parties be required to accumulate signatures
equivalent to only one-tenth of one percent of the total vote cast in
the preceding gubernatorial election, with a maximum limit of 10,000
signatures. Compare this standard with the requirements of 2 percent in
Missouri (36,000 votes), 3 percent in Massachusetts (71,643 votes), 5
percent in California (259,000 votes) and 7 percent in Ohio (259,000
votes). Other states exact flat numerical minimums.
New York, Illinois, Massachusetts, and Ohio demand that the
signatures obtained on nominating petitions represent a prescribed
number of residents in a specified number of counties throughout the
state. Apportionment requirements often result in giving
disproportionate power to rural areas and discourages urban and, in
some cases, rural centered groups from availing themselves of the
For example, the Illinois statute states that a petition to
nominate candidates for a new political party must be signed by at
least 25,000 qualified voters, including at least 200 from each of the
102 counties in the state.
The New York statute compels even greater omnipresence.
"An independent nominating petition for candidates to be voted for by
all the voters of the state must be signed by at least 12,000
signatures of whom at least 50 shall reside in each county of the
The Illinois law was challenged by the Progressive Party just
before the 1948 elections. The case reached the U.S. Supreme Court
where it was argued that the statute's disproportionate favoring of
rural counties violated the equal protection clause of the 14th
Amendment. In a 6-3 decision, the court disagreed and upheld the law.
Writing the dissent, Justice Douglas stated: "The notion that one group
can be granted greater voting strength than another is hostile to our
standards for popular representative government." He was referring to
the fact that 25,000 signatures from 50 of the least populous counties
could form a new party while the same number from 49 counties with 87
percent of the registered voters could not.
Regulations pertaining to authentication of signatures, even in
states with liberal signature and apportionment legislation, provide
further hurdles for small parties to overcome. Six states require
individual notarization of every signature on a nominating petition.
In Missouri, each of the 36,000 names needed must be certified
by a notary who personally knows the signer or by two witnesses who can
swear to his identity.
(Part One of Three Parts)
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