A Dispatch From Puget Sound

My friend Mark Nameroff recently wrote a piece on government involvement in the electoral process. Herewith my response to his invitation to comment.

My friend Richard Winger at Ballot Access News is far better qualified than I to comment on this topic. Richard is a longtime fighter for fairer ballot access for small parties and independents.

I just recently quoted the late Sen. Eugene McCarthy's statement about the government controlling the process by which government officials are chosen.

There has been a series of court rulings in this area. E.g., there were no primary elections when the Constitution was written, and circa 1940 the U. S. Supreme Court said that the Elections Clause applies to primary elections.

The state is not required to mandate that political parties nominate candidates, but it has the power to do so and to limit each party to one candidate per office on the general election ballot. When the state does compel parties to nominate candidates, it must then specify the method(s) of nomination. The party primary, of course, is the most popular nominating process.

In 1995, a federal appeals court said that, when the state mandates primaries, the state must pay the costs of those primaries. Practically speaking, states will continue to mandate primaries, since (1) the voters are accustomed to primaries, and (2) the parties, if left to their own devices, would be very unlikely to hold primaries, due to the expense.

There continues to be plenty of litigation in this area. Most such suits are prompted when state law and party rules conflict with each other. In the last 35 years or so, the federal courts have been moving toward greater autonomy for political parties, so the party rules have almost always prevailed.

On October 1, the U. S. Supreme Court heard oral argument vis-a-vis Washington state's Louisiana-style "top two" election system. The political parties, to be sure, object to the "top two," particularly the provision allowing candidates to have their party preferences next to their names on the ballot. Most of the justices seemed to be leaning in favor of the parties and against the state.

By the way: many states now charge parties and candidates fees for ballot access. The states have varying degrees of ease of ballot access. Florida, e.g., has some 23 qualified political parties, some two-thirds of which have never run the first candidate for office. (My personal favorite is the Surfers Party of America.)