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on cases and developments in law and the legal system.
Freezing out Third Parties
By Habib Olapade
Habib Olapade is a first-year law student at Yale University.
Electoral structures are highly path dependent. Specific institutional structures and legal rules, not a preexisting popular will or ideology, are responsible for our political system’s virtues and vices. America’s two-party system, for instance, is a by-product of the nation’s single member district election scheme.  This insight was best articulated by French political scientist Maurice Duverger. She observed that in single district political systems, in which the candidate who receives the most votes wins office, two party political systems dominated.  This disposition is not necessarily harmful. Two-party systems facilitate democratic decision-making by responding to constituent concerns, competing for votes among undecided members in the electorate, and stabilizing and streamlining dissident minority interest groups. 
But what happens when one party – or both – seeks to entrench itself in the government at the public’s expense? In resolving this question, it can be helpful to think of the democratic political process as an economic market. This analogy is valid because the principle-agent dilemma between the parties and the electorate closely resembles the sometimes troubling relationship between a company’s board of directors and its shareholders.  Both elected leaders and corporate board members claim legitimacy for their actions by appealing to their constituents’ interests and seek to enact procedural and substantive hurdles that prevent their voters from throwing them out of office.  Political processes and economic markets also rely on robust competition and clear rules of engagement. 
The political branches cannot be trusted to police their own behavior because, on most occasions, the parties have no incentive to support a system that would ensure their temporary or permanent displacement from power or encourage party raiding.  Foxes should not be permitted to guard henhouses. Courts, therefore, must bear the burden of enforcing these rules and preserving a competitive political process. This representation-reinforcing function is important because political systems that allow multiple groups to participate in the decision-making process have more democratic legitimacy than systems which suppress groups from participating in the political arena. 
Unfortunately, since the mid-twentieth century, the Democratic and Republican parties have managed to manipulate ballot access requirements and freeze out serious third-party challengers in the process. Federal courts have been largely unresponsive to these developments because judges evaluate ballot access challenges by weighing individual political participation rights against state interests in orderly and stable elections.  This test’s individualistic focus is unideal because (1) vote dilution ballot access claims require an aggregate, not individual, showing of harm and (2) measures that do not harm a single individual but can convey negative expressive values that damage the political process such as racial and partisan gerrymanders should be, and to a certain extent are, actionable.
Burdick v. Takushi and Timmons v. Twin Cities Area New Party demonstrate the parties’ fait accompli.  Burdick involved a disgruntled voter who sued Hawaii because the state’s election code prevented him from casting a write-in ballot in the Democratic Primary or general election. Third party candidates could get on the general election ballot only by (1) entering the Republican or Democratic primary and winning that election or (2) obtaining enough signatures to form an independent political party – which was quite onerous. Additionally, Hawaii voters could only vote in their registered party primary. Because Hawaii was a solidly Democratic state and the write-in ban erected insurmountable barriers to challenging the party, this scheme effectively channeled political dissent within the Democratic Party’s primary. The Court upheld the write-in ban against a constitutional challenge because the state’s interest in preventing members of one party from voting in another party’s primary outweighed any individual interest in submitting a write-in vote.
However, this justification becomes less compelling once one realizes that each branch of Hawaii’s government was controlled by the Democratic Party. Based on this, the state’s justification was actually intended to prevent outsiders from forming coalitions with dissatisfied groups in the Democratic Party and effecting the Party’s candidate and platform selection process. Implicit in the Court’s acceptance of this justification is the idea that the state can prefer policies that favor party stability over dissident engagement – even when the party is well-established and in no danger of displacement.
The Court confirmed this implicit assumption in Timmons.  This case involved Minnesota’s prohibition on fusion tickets – which allowed candidates to appear on a ballot with more than one party affiliation. Fusion candidacies benefit third parties because it gives them a chance to support candidates with realistic election chances and allows dissenting factions in major parties to express themselves. Minnesota’s ban emerged in the late nineteenth century after both parties agreed that a fusion ban would prevent third parties from agitating turmoil in their own primaries. The Court upheld the fusion ban here because it served the state’s legitimate interest in a stable-two party system. But again as in Burdick, this reasoning did not disclose the fusion ban’s true effect, which was the promotion of a two party system dominated by two pre-existing and well-established parties. In the abstract, there is nothing wrong with the state preferring a two-party system. But once this preference entrenches certain parties and effectively locks out others, the state’s interest in electoral stability becomes less weighty because the First Amendment prohibits state sanctioned discrimination on the basis of partisanship. 
Political monopolies are potent paralyzers. Compared to their economic counterparts, it can be rather difficult to bust these trusts because most politicians have a vested interest in the status quo. Only the courts can enter this political thicket and recalibrate the system.
 John B. Anderson & Jeffrey Freeman, Taking the First Steps Towards a Multiparty System in the United States, s.p.g. fletcher f. world aff. 73, 74 (1997).
 maurice duverger, political parties: their organization and activity in the modern state 217-218 (1951).
 Samuel Issacharoff and Richard Pildes, “Politics as Markets: Partisan Lockups of the Democratic Process,” 50 Stanford Law Review 643 (1998).
 But see, Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (involving a party rule permitting independent voters to cast a ballot in a party primary without prior party registration).
 john hart ely, democracy and distrust: a theory of judicial review (1980).
 Crawford v. Marion County Election Board, 553 U.S. 181 (2008).
 Shaw v. Reno, 509 U.S. 630 (1993). But see, Vieth v. Jubelirer, 541 U.S. 267 (2004). The Court recently granted certiorari in a case from the Western District of Wisconsin to re-evaluate Justice Kennedy’s controlling opinion in Vieth. See Gill v. Whitford, 218 F.Supp.3d 837 (W.D. Wisc.), cert. granted, (June 19, 2017) (16-1161).
 Burdick v. Takushi, 504 U.S. 428 (1992).
 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).
 Elrod v. Burns, 427 U.S. 347 (1976).
Photo Credit Flickr User: ttarasiuk
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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