Document:Interview with Richard Winger

Interview of Richard Winger

Editor of ‘Ballot Access News’ and founding member of the Coalition on Free and Open Elections (COFOE)

by

Patrick Nicholson

July 18, 2023

Why did you become an advocate for minor political parties for more equitable ballot access laws?

Well, I was interested in studying election returns for minor parties. In the early and middle 60s I was fascinated by the fact that there were only three minor parties that actually went out and tried to get on the ballot. They had no prestige at all and received very little attention. And yet they seem to get a surprisingly large number of votes. So, I was curious who voted for these parties. They were the Prohibition Party, the Socialist Labor Party, and the Socialist Workers Party.

I did a lot of election returns analysis, but they weren't on the ballot in my own state of California, and I thought, well, that seems dumb. How come they're on the ballot in some States and not others; they're national parties. That's when I started learning about ballot access laws. Then I realized my state was just about the second worst in the country – when it came to ballot access. So, I talked to my hometown assemblyman, and he agreed to introduce a bill making it easier.

I worked so hard on that bill. California has 80 assemblymen and 40 state senators, and I was a little college kid. I was able to talk to 40 of the 80 Assemblyman. It took a whole year. The year was 1966. And I talked to 10 state senators, and they all said they'd vote for it. But then in April 1967, when it was being introduced - because they didn't do ordinary legislation in even years back then, they just did the budget. Just then, George Wallace let it be known he was going to be a third-party candidate for president in 1968. So, all the Republicans who had said they'd vote for my bill didn't because they wanted to keep George Wallace off the ballot. And so, my bill lost in both houses. It passed the policy committees in both houses. But it lost on the floor. I had worked a year and a half on this. It was very discouraging to me, but I had gotten interested and I just never lost the interest.

You are an expert on election law in federal courts in nine states. Tell us about testifying in court for ballot access.

There was a case in New York State not over ballot access per se but whether unqualified parties had a right to have voters register into them. And the Green Party filed that case, and I remember being on the stand in Manhattan. And they're pretty tough in New York, but I just know I did well because I had awareness of all the many states that allowed that, and they didn't have any problem with it. And so, I conveyed that, and the case was handled by the Brennan Center for Justice, and we won. I could have given you other examples, but for some reason my mind goes straight to New York because it's a hard business state and it's not easy to beat the government of New York in court.

‘Ballot Access News’ began publishing in 1985. Please describe what were the main ballot access hurdles, then compared to now.

Well, it does go up and down depending on what the Supreme Court has done most recently. The Supreme Court has been schizophrenic. They will do something wonderful and then a year later they'll do something horrible. It all depends on which justice writes it, it's very sad to say. But I know for a fact the chief determinant of whether we win or lose is what kind of a judge we had. It shouldn't be that way, but it is.

The Supreme Court put out a wonderful opinion in 1968, and then they put out a horrible decision in 1971 that seemed to cancel it out. In ‘74 there was one bad opinion and one really bad opinion. But then in 1976, they put out a good opinion. And then in ‘79, they put out a great opinion. In 1983, they put out a great opinion. Then in 1986, they put out a crummy decision. Then in 1992, they put out a wonderful decision. But that's the last case they've taken since we asked in 1992. They have rejected all cert petitions filed by minor parties and independent candidates over ballot access. That's over 30 years of saying no. So again, we're trying to get them to take the New York State case.

Do you think it comes down to the individual judges and their political leanings?

Yes, Justice Byron White, who was a Kennedy appointee, was our worst enemy. And so was William Rehnquist. And so is Scalia and so is Clarence Thomas. And then Justice Stevens was a great lover of minor parties and independent candidates. Along with Justices Brennan and Thurgood Marshall. Blackman, he started out bad, but then he became good.

I wrote a letter to Byron White once and I asked him why are you so against third parties and independent candidates being on the ballot? And he courteously answered my letter. But all he said was well, I'll just have to let my decisions speak for themselves. The only state interest he ever cited for strict ballot access laws was ‘stability’. Just the word stability. He didn't define it. He didn't explain it. He even wrote the decision, saying it's OK to take away the write in space. And the reason is stability. Now stability generally means two things. It often refers to democratic countries where the government falls frequently. Generally, these are proportional representation countries, and the coalitions fall apart. Or stability is often a phrase in connection with whether a country suffers from military coups. So, what do those two things have to do with ballot access? And yet, nobody analyzes these decisions with regards to rights. Nobody ever asks: what's he talking about? He claimed Hawaii would be unstable if it permitted write ins. Well at the time, 45 of the 50 states permitted write ins, and they weren't unstable. And yet, these smart professors who write about these cases, never actually talk about rights.

In 1985, you helped found the Coalition on Free and Open Elections (COFOE). An organization intended to coordinate action and provide mutual support among the various minor parties to liberalize ballot access laws through state legislatures as well as through the courts. Please describe COFOE’s successes and disappointments.

Mostly, COFOE has helped raise money to pay for lawsuits. So, to the extent that COFOE put out money to pay for cases, that was a good thing. But COFOE wasn't really my idea. I was happy to participate when it started, but it really started - oddly enough - by the Communist Party and the Socialist Party.

So, you take all political denominations then?

Well, we also had the Libertarian Party and the US Taxpayers Party, which later became the Constitution Party. So, I don't want to suggest that there's an ideological slant to COFOE but I have to give credit to the Socialist Party and the Communist Party that thought it up.

You are a longtime supporter of the Libertarian Party. In 2014 you were inducted into the Libertarian Party's Hall of Liberty, which recognizes a lifetime of work in the libertarian movement. From your perspective what can the party do to increase its influence?

We have gotten great improvements in the ballot access laws in the last 35 years. And we have gotten more success by lobbying state legislatures than any other way. The Libertarian party has been the leading force in the country for easing ballot access laws. And we've had huge success. Half the states have improved their ballot access laws because of libertarians and other third parties talking to state legislators. And I'm afraid many, many people in the Libertarian Party don't know that. And lately, it's been really rough to persuade libertarian state party leaders to do that kind of work.

I was disappointed this year that the Alabama Libertarian Party didn't get a bill introduced to change the ridiculous rule that a party has to pull 20% of the vote to stay on the ballot. We got 15% in 2022, which is huge for a third party. About 15% in three statewide races. However, I don't want to be down on the Alabama Libertarian Party because last night, Bill Redpath told me that the Alabama libertarian leadership has identified someone who's going to lobby next year. It's too bad we didn't get it this year, but they've got a really good lobbyist. So, I'm very encouraged by that.

Who are the forces that are aligned against you?

Right now, it's Democratic legislators. There's such hysteria among the liberal press over ‘No Labels’. And that the Green Party is probably going to run Cornell West. If you watch the news - this is staggering - everyday, there's an attack by some prestigious person on the ‘No Labels’. ‘No Labels’ want to run a centrist presidential candidate. And the Democrats think that this threatens the reelection of Joe Biden.

That will pull votes away from him, just like their claim that Jill Stein did that to Hillary Clinton?

Yes. And if anybody Googles Jill Stein's exit polls, they'll find a good CNN story that shows she did not change the outcome in any state because Michigan was the closest state that Trump carried in 2016. And Jill Stein voters were asked by the exit pollsters if Stein wasn't running, who would you vote for? 25% of the Stein voters said they would have voted for Hillary Clinton, but 14% of them said they would have voted for Donald Trump. So, if you subtract 14 from 25, that's only an 11% margin that Stein hurt Hillary Clinton. So, if you take 11% of the Stein vote, it's not nearly enough to have affected the outcome. And yet it's so easy to find this information but lots of learned people will say over and over and over again that Jill Stein hurt Hillary Clinton which caused Trump to become president.

That's a very common narrative. So, it ties right into the Democratic Party’s push to not allow third parties?

The Democratic Party has a terrible history. They have tried to knock third party presidential candidates off the ballot in 1936, 1940, 1948, 1952, 1956, 1960, 1976, 1980. And especially in 2004 and 2020. They are the bad party and it's so ironic because they hold themselves out as champions of voting rights.

Do you foresee that the Libertarian Party will ever become a major political force?

No, but that doesn't upset me because third parties can be influential, even if they don't win. There are so many examples of that in the U.S.

Isn’t that the reason why third parties are important, to create that influence?

I love to mention the Prohibition Party. They started in 1870 but the prohibition amendment in Congress didn't pass until 1917. What happened in 1884 - and again in 1916 - is that the Prohibition Party tilted the outcome. It's quite clear. The Prohibition Party received 25,000 votes in New York State in 1884, and Grover Cleveland (a Democrat) beat the Republican James Blaine by 1,000 votes, and everybody at the time knew that the people who voted for the Prohibition Party would have voted almost entirely Republican if the Prohibition Party hadn't existed. Thus, the Republicans were so mad, and after the 1884 election all over the country they strung up the presidential nominee of the Prohibition Party in effigy or burned him in effigy. But in 1916 it happened again.

The Republicans lost the presidency because of the Prohibition Party. In California, Woodrow Wilson (a Democrat) beat the Republican Charles Evans Hughes by 32,000. Well, OK, the Prohibition Party got 32,000 votes and Wilson carried California by about 1,000 votes. So, what happened in 1917? The Republicans in Congress changed their mind and passed the Prohibition amendment. They were sick and tired of losing presidential elections to the Prohibition Party. Also, they didn't expect that the states would ratify it, but they did. Now, I'm not saying Prohibition was a good idea. I'm saying, if you think you're wasting your vote - voting for a minor party - pay attention. The voters who voted for the Prohibition Party were casting more powerful votes.

In 1986, you ran for election for the office of California Secretary of State as a Libertarian. What advice do you have for Libertarians that want to run for political office?

I wanted to get 2% of the vote to keep the Libertarian Party on the ballot in California. That was the voting test. And I didn't. I only got 1.5% but it was okay. Another libertarian did get over the 2%. I don't think there's really anything I could have done to radically improve my vote total, because voters just don't pay much attention to these elections for less important statewide office. If I had oodles of money, I suppose I could have advertised. However, there's a lot of things you can do if you're running for governor or US. Senate or U.S. House, or the legislature. But there isn't much you can learn by running for these less important statewide offices. Or maybe there is but it doesn't dawn on me.

As a lifelong Californian living in San Francisco, please tell us your perspective on how the state has changed over the years.

Well, our population has grown so much. It's just about impossible for an ordinary person to influence his or her state legislature because our state Senate districts now have a million people in them. And the lower house - which we call the assembly - has half a million. So back in 1966 a college kid with no connections to any important people was able to talk to 50 state legislators over the course of a year. Now I can't even talk to my own state senator, even though I'm a constituent. I've gone to the meetings I talked to him face to face. I wanted him to introduce a bill to ease the independent presidential petition. Not only doesn't he do it, he won't even write me a letter saying that he’s not going to do it. He just ignores me. So, when I think about the contrast between my experience in the 60s and my experience now, I feel sad for all ordinary Californians who just can't get through to their legislators.

There are those who assert that third parties only worsen the problems of gridlock and act as political spoilers. How do you answer their concerns?

Well, you mentioned gridlock. Gridlock happens when we have one major party controlling one house and the other major party controlling the other house, so nothing can happen. We have plenty of problems in this country besides gridlock.

What minor parties can do - in that case - is help things change because normally the vast majority of states are safe for one major party or the other. But if there's a strong third-party, things can change. The Libertarian Party is assuming most people who vote libertarian would otherwise have voted Republican. The Libertarian Party has changed the outcome of about 10 U.S. Senate races in its history. So, to the extent that a minor party, any minor party, can upset the normal election returns, well, that’s good because it makes for a more unpredictable outcome. Not so boringly predictable.

Our winner-take-all electoral system ensures that we will have only two major parties, no matter how many political parties there may be. Why is this?

Well, people have been noticing that for over 100 years. The term ‘two party system’ was first coined in 1911 by a political scientist who is describing the British political system. But the term ‘two party system’ has been misunderstood. It never meant a system with just two parties. It just meant in the absence of proportional representation, it's inevitable that two parties will be much larger than all the others. But nowadays people think the ‘two party system’ means, it's a system in which there are only two parties, and if anybody else tries to compete with them that's bad because they hurt the ‘two-party system’. I want to say that I think proportional representation is the best system. A researcher compiled a list of the 10 best countries in the world, the best 15, or the best 20, based on objective criteria. When you see those lists invariably 85 or 90% of the countries on the list are countries with proportional representation.

Is that like a parliamentary system?

Well, if you get 5% of the vote, you get 5% of the seats in the national parliament. Political science research has shown that there's a greater fit in the proportional representation countries between public opinion and public policy. The voters are more likely to get what they want. I wish we had proportional representation.

Is that why we no longer have vigorous and active third parties?

We used to have active and vigorous third parties in this country. But back then the ballot access laws were much more favorable to third parties. And there were no presidential debates. Right now, not only are the ballot access laws tough, but the Commission on Presidential Debates won't let anybody into the general election presidential debates except the Republican and the Democrat. That's terribly hurtful and does more harm to third parties than the restrictive ballot access laws.

So, is there a fear of debating a third-party candidate?

Yes, because they know that if the third-party candidate got into the debates and did well, that would hugely help that candidate. The Commission in 1992 wanted only Clinton and Bush in there, but Clinton and Bush both told the debate Commission that they also wanted Ross Perot in there. Ironically, both believed that it would be helpful to them if Perot was in the debates.

So, the Commission had to bow to the wishes of George H. W. Bush and Bill Clinton. So, what happened. I remember those debates, and Perot did very well. And Perot got 19%. Even after dropping out in July and then coming back on October 1st.

I guess it shows that if you're a straight shooter, then people are going to listen to you.

Also, people back then knew other good things about him. In 1979, he personally went to Iran to get his employees out of the country. And that was so brave. They never knew he was there. But if they had, and they had captured him, they would have ransomed him for 10s of millions of dollars. Also, he was great on activism to investigated U.S. prisoners of war. So, he had a lot of personal characteristics in addition to popular ideas about public policy. We just haven't had anybody like him since then.

In California, Democrats control all statewide offices, the state senate and assembly and control all but eleven of the fifty-three congressional seats. California’s biggest political battles are not between Democrats and Republicans, but rather between factions within the Democratic Party. Thus, it has been said that California is a one-party state. Please tell us what you think can be done to get more competition in California politics.

I guess all I can think of is going to proportional representation, which nobody's talking about. Republicans would have about 40% of the seats in the legislature. If we had proportional representation, but as you just said, they'd barely hang on to 1/3 of the seats.

Do you think that they could ever make a comeback because it used to be more of a balance between Democrats and Republicans. And in the last 11 years, the Democrats have had a supermajority.

Yeah, it's really bizarre when you think how well Republicans used to do in California gubernatorial elections. Just think about the past, we had Republicans winning the governorship in 1982, 1986, 1990, and 1994. That was four in a row and Pete Wilson and George Deukmejian each got two terms. And now it's unthinkable. I think that it's looking so bad for the Republican Party in Californian that I just don't see how they can ever come up again.

Prop 14 was a full-throttled attack on third parties and forced independent voters to choose between the duopoly or just two Democrats, or to not vote at all. What are your thoughts on this?

And they even took away the write-in space.

So that that's completely contrary to where you're going with your ballot access.

Yep. We're planning a new lawsuit against the California ‘top two’ system, the libertarian, Green and Peace and Freedom parties are working on that. Well, all three parties should be plaintiffs, and we’ll bring the lawsuit to federal court. There's hope for it.

The US Supreme Court has never upheld the ‘top two’ law in relation to ballot access. They sort of upheld the Washington State ‘top two’ system, but only on freedom of association grounds. They have footnote 11 saying that they are not deciding the ballot access issue, because the lower courts didn't, and we're not doing it either, So, they left it open. But then the 9th Circuit did uphold the Washington state ‘top two’ system. But they said it was only a slight burden on the minor parties being off the November ballot because they could get on the ballot in the primary. And they said August is near the peak of interest in the election. It would be an entirely different thing if they said the primary was in March. Well, guess what, in California in 2024, our primary for all offices is in March. So, we can go to court and say the 9th Circuit opinion shows that we have a good case because they said it would be a great burden on minor parties if they could only run in March, which is 8 months away from the general election.

When only two Democrats are running in the general election – upwards to twenty percent of electorate decline to vote. The concern is that if you had any other issue that prevented or disenfranchised 20% of the electorate that that would be a crisis, and you would certainly have to look into that.

You're absolutely right. That's true. I couldn't put it any better myself. It's terrible when 20% of the electorate goes through the trouble to vote and then leave it blank. That's an indictment of the system. You can calculate how many people left the office blank on their ballot if you get the county election data. You can't look at it in the Secretary of State election returns because that data isn't there. But if you go to the counties’ data you can calculate how many people leave it blank.

In 2010, California voters theoretically put redistricting in the hands of a ‘citizen’s commission’ where decisions were supposed to be based on testimony from the general public in open debate. It has been said that Democrats conceived of a way around this nonpartisan process by covertly enlisting local voters and community groups to pose as independents when they testified in front of the ‘citizen’s commission’. Thus, ensuring that this – once in a decade process – was manipulated to maximize districts that tilted toward Democrats. What are your thoughts on this?

Oh, maybe to a slight extent, but I'm not a student of that.

What about voting by mail? In past elections - pre COVID - you had to tell the county register that you wanted to receive a mail ballot because you were going to be out of town. You had to petitioned them to get your ballot by mail, but now everything is done by mail. They send it out automatically. Do you think that that's a good thing?

Oh, it's mixed. I asked my Barber once how he voted in a particular ballot measure, and he says I don't know; I give my ballot to my wife. There’s no doubt about it that the vote by mail system, there's a lot of that. There are probably senile people and somebody else gets their ballot. Of course, they do have to sign the ballot, and they do check the signature. If one person has influence, they can just talk some voter into letting them fill out their ballot, but they have to sign it. So, it's true it's flawed.

Do you think there is ballot harvesting where they gather up a number of ballots from different people?

No, that doesn't worry me. There are a lot of protections. I don't see anything wrong with somebody picking up a voted ballot and walking it to the postal pickup box. That doesn't bother me. But it does bother me that people are subject to being influenced by people they trust.

What about voter apathy. Citizens feel left out and let down by the political class, by career politicians. A lot of Californians think that their vote doesn’t even matter. Do you think that voter apathy would change if we had third parties?

Yes, it would certainly change if we had proportional representation, but also it would certainly help if we were to split up California into several states. It's tough to have a representative government in a huge population entity.

There was a push to have the State of Jefferson. They wanted to break away from Northern California.

Yes, we had that on the ballot in some counties. I forget what year. But quite a number of counties had it on their ballot. The youth favors splitting up California. Maybe it was statewide. I think somebody got an initiative on the ballot to split up California into three states.

From 2000 to 2020, California had a net loss of people to other U.S. states and lost a congressional seat. What are your thoughts on this?

Well, it was one we lost one, yes. I don't think I have any special expertise on this subject, so I might say something, but I don't think you should take it too seriously. We're such a beautiful state and any state with an ocean is always going to be attractive. We're still not densely populated. If you consider the vast amount of wilderness in California, forests, mountains, deserts. I mean, we're still not. We're still a low-density place compared to most countries in Europe for example and even New York, New Jersey, and Connecticut. And Maryland, and Washington, DC.

Due to the unpopularity of Joe Biden and Donald Trump there is much discussion that this may be the time when a viable third-party candidate could become president. Do you think this is possible?

The trouble is, there doesn't seem to be any such candidate who's got real appeal. I have not heard of anybody who's not a Republican or Democrat having the potential. I thought possibly a businessman like Mark Cuban, but then just about a week ago, he said he would not run for President. And then there was, of course, the Starbucks guy Howard Schultz. He was thinking of running in the last election. I just thought really, there's no politician who would run outside the major parties who has any appeal at all.

I certainly don't see Senator Manchin having big appeal. Just the opposite, you know, he seems like someone who is so beholden to the cult companies that I just don't see people getting enthusiastic about somebody like that. But with this opportunity that somebody would take up the challenge, but it's such a crummy job to be president.

I don't know how old you are, but do you remember John B Anderson in 1980? He only got 7% in the end, but there were times in September when he was pulling at 20%. He had integrity. And he was attractive. But we don't even have anybody like that nowadays who is outside the major parties.

The voters don't seem to care about that anymore. Just look at Trump and how can people support somebody who very likely was a rapist. I mean that it's amazing to me that his supporters don't care at all about that.

Times have changed from when Gary Hart was running as a Democrat.

Right. He had an affair when he was married. That is so true. And it sort of ruined John Edwards too.