Document:Editorial D Frank Robinson Who Owns the Ballot Owns the Country and the People

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Who Owns the Ballot Owns the Country and the People

by D Frank Robinson

It is unnecessary to steal elections at the ballot box if they are stolen in your mind before you vote. This is because our political expectations are structured by the ballot choices offered and suppressed by what is known as the mythological “two-party system.” Even if everyone has a right to vote, even if this right was racially neutral, even if pluralities had a right to prevail, the electoral process cannot be fair and democratic unless all parties and candidates were allowed to compete on a free and equal basis.

Americans endorse free and pluralistic elections in principle. But to establish a truly open political process today will require a sweeping overhaul of the Supreme Court’s elections jurisprudence, which is deeply under the spell of the self-entrenching and extraconstitutional “two-party system.” To accomplish this the public must make the Court feel the heat and see the light.

Presently the Court upholds laws that discriminate against third parties by keeping their candidates off the ballot, out of debates and off the public’s media screen. The Court has even authorized states to ban “write-in” ballots, thus emphatically defining the ballot as the government’s property, not the voter’s property.

The Court cannot seem to find democratic principles in the Constitution protecting the right of the people freely to form our political will and make unmanipulated ballot choices in elections.

The right not to be forced by a censored ballot into the state’s approved political orthodoxies is complemented by the affirmative right to launch a political party of your own and to be treated equally by the government in the balloting process. This right is the political free speech equivalent of the religious free exercise principle: you can say or think whatever you want in politics and the government may not discriminate against you because of it. The bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because government officials find the idea itself offensive or disagreeable. Well, short of advocating the violent overthrow of the government which is impossible by casting a ballot.

To respect the political sovereignty of the individual voter, the government must never endorse a political party (or even two of them) against any competitors.

So who has a right to compete for the assent of the voter in elections? The Supreme Court has rightly defended this principle of government neutrality in the context of state efforts to drive some people off the ballot. In the 1995 case U.S. Term Limits v. Thornton, the Court held that Arkansas violated the Qualifications Clause of Article I of the Constitution when it tried to deny incumbents seeking re-election a printed line on the ballot if they had already served three terms in the House of Representatives or two in the Senate. Incumbents could run, but only as write-in candidates. Justice Stevens found for the majority that designing a special rule to disadvantage incumbents in elections essentially added an impermissible fourth candidacy qualification. The three requirements of Article I are exhaustive: that House Members be at least 25 years old and Senators 30, that they be residents of the United States for at least seven years or nine years respectively, and that they be inhabitants of the states they represent. These requirements cannot be altered by the states. However, requiring all candidates to run as write-in candidates cannot be unconstitutional because that is what all states allowed until the 1890s. Ballots were printed privately with names on them, but the voter could strike out any name and write-in the name of their real preference. Any state-imposed effort to change these qualifications, Justice Stevens found, “is contrary to the ‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ‘the people should choose whom they please to govern them.’”

This governing principle is so foundational that Congress itself lacks the power to add to the constitutional qualifications for congressional service, as the Court found in Powell v. McCormack. There, the Court overthrew an effort by Congress in 1969 to deny a House seat to Congressman Adam Clayton Powell, who clearly met the age, residency and citizenship qualifications but had allegedly engaged in serious misconduct in the prior Congress. The Court found overwhelming historical, textual and theoretical support for the proposition that the Framers intended the Qualifications Clause to be “fixed and exclusive,” leaving no room for any body to add new qualifications short of constitutional amendment.

But the Court is inconsistent. If one is not a previously elected incumbent affiliated with either of the two dominant parties, then the state and the Congress may pile on additional qualifications to prevent voters from deciding among competitors. Challengers must be handicapped while two-party incumbents run free.

In Thornton, the Court emphasized that Arkansas’s attempt to drive certain citizens off the ballot—incumbent officeholders—contradicted the essential “principles of our democratic system.” One such principle is “the egalitarian concept that the opportunity to be elected” must remain “open to all.” Here the Court essentially merged the concerns of the Qualifications Clause with Equal Protection, which calls for equal treatment of equally situated persons, and the First Amendment, which insists upon government neutrality in the treatment of different political views. A second “critical postulate” was that “sovereignty confers on the people the right to choose freely their representatives to the National Government.” The Court quoted Hamilton’s powerful statement before the New York Convention: “This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.” The Court agreed with the premise that “the right of the electors to be represented by men of their choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.” Finally, the Court found that “the right to choose representatives belongs not to the States, but to the people.” Thus Arkansas could not “make it significantly more difficult” for incumbents to win by forcing them to run as write-in candidates. However, challengers are not “similarly situated.” The state may impose added qualifications not in the Constitution on non-duopoly challengers and “make it significantly more difficult” to win including not allowing voters to write-in the names of such candidates or simply refusing to count those ballots.

The Court said it would not allow Arkansas to “evade the Qualifications Clauses by ‘dress[ing] eligibility to stand for Congress in ballot access clothing,’” as this “trivializes the basic principles of our democracy.…” But ballot access restrictions were deemed not added qualifications, but indispensable to an orderly election without frivolous voters voting for frivolous candidates.

Subsequently, in Cook v. Gralike, the Court rejected an effort to manipulate public consensus by placing slanted information on the ballot next to candidates’ names characterizing their voting records and positions on a term limits constitutional amendment. The Missouri law in question required that “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” and “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” be added next to the names of candidates guilty of the various sins being combatted. Again the Court rallied to the principle that the Constitution does not allow government to thwart the will of the people by using the ballot to engineer a public consensus tilting in one direction. These ballot rules had the impermissible “intended effect” of “handicap[ping]” certain candidates. At the moment voters cast their ballot, the moment of public choice, the state must be completely neutral, as it must also be all along the way in composing and designing the ballot. It seems well accepted in state courts, for example, that public officials may not have a policy of automatically placing incumbents first on the ballot. However, printing the party affiliation or lack thereof is not deemed manipulative use of the ballot to engineer a tilting of voter opinion in favor of the dominant parties candidates.

It is a commonplace assumption in both public rhetoric and the law of American elections that we have a “two-party system.” This is a kind of civic religion that is intended to instill piety and mystical reverence. Yet people feel the priests of the civil religion are corrupt and incompetent but are confused what they can do about it. Either way they vote it only gets worse. The voters will grow more frustrated until they snap and embrace total fascism – unless a political party shows a non-violent way out.

The way out is the abolition of all ballot access censorship of voter choice by using a content-neutral all write-in ballot similar in format to the Federal Write-in Absentee Ballot. So far no party has challenged the cult of the omnipotent censored ballot in a government court or the court of public opinion.

The solution to partisan censorship of the ballot is an all write-in voter verifiable ballot.