Armor, John C.

McCarthy, Eugene J.

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 57 Number 3 Article 2 1981 Election Laws: A Case of Deadly Reform Eugene J. McCarthy John C. Armor Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation McCarthy, Eugene J. and Armor, John C. (1981) "Election Laws: A Case of Deadly Reform," North Dakota Law Review: Vol. 57 : No. 3 , Article 2. Available at: https://commons.und.edu/ndlr/vol57/iss3/2 This Introduction is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. INTRODUCTIONELECTION LAWS: A CASE OF DEADLY REFORMEUGENEJ. MCCARTHY ANDJOHN C. ARMOR*It is easy in the area of election law to lose sight of the forest forthe trees. It is imperative we not make that mistake. As the UnitedStates Supreme Court has recognized, the freedom to vote (and tobe a candidate) is the most basic right guaranteed by theConstitution, for without that freedom the protection of all othersbecomes illusory.Before analyzing the various election "reform" lawsconcerning access to the ballot, media coverage, and publicreporting and financing of elections, we must first examine thegeneral framework of election laws. A public financing law, forinstance, may have good internal design and methodology. But ifthe net effect of the law is toattack the freedom of candidates to run,and of voters to vote for them, then no amount of tinkering withdetails is justifiable or legitimate under the first amendment.We cannot put a man on the moon using a horse and buggy,even if the horse is a thoroughbred and the buggy is the Deacon'sone-horse shay. That is precisely the problem with many electionlaws, especially the federal laws, in the United States today. No lawwhose fundamental approach is unsound can be salvaged byrevision or reform.Nor is it by accident that the principal objective - open andcompetitive elections - has been honored in theory but buried inreality by modern laws and regulations. The net effect of allelection laws today is to continue indefinitely the shared oligopoly*Eugene J. McCarthy is a former United States Senator from Minnesota and a three-timecandidate for President. John C. Armor is a constitutional lawyer who has represented the firstamendment interests of George Wallace, Eugene McCarthy, John Anderson and numerous othercandidates.NORTH DAKOTA LAW REVIEWof the Republican and Democratic Parties over all major electivepositions. Traditionally, control of the elective positions hasresulted in control over the appointed positions, including themembership of the Federal Election Commission, the FederalCommunications Commission, and various other agencies that ruleover the destinies of politicians. It is the nature of any politicalparty to seek as much power as it can, and having obtained it, tohold it as long as possible. Throughout American history everypolitical party has remained true to these principles. In this, thepresent "major" parties are no different from the Republican-Democratic Party, the Federalists, and the Whigs, all of whichelected presidents. Nor are they different from the Know-Nothings,the Populists, and the Grange, which did not succeed in electingpresidents, but which did have substantial regional power,including control of some states.Prior to 1900 the United States never had "the two partysystem." Although from 1789 to 1900 there were present in mostelections two dominant parties, these major parties always facedcompetition from other parties that goaded, hounded, andsometimes defeated the dominant parties. Thus, for most of ourhistory there have always been new political parties waiting in thewings to supersede any party that lost its mandate for existence.It is novel in the 20th century, however, that the two presentlydominant parties have jointly used the structure of elections to cutoff their potential competition. Prior to 1888 there were absolutelyno laws restricting the opportunities for new candidates and newparties to arise at the last minute and compete effectively inelections. Nor was there any widely held belief, similar to belief inthe emperor's new clothes, that the national leadership must bechosen solely from the ranks of the existing political parties. It wasnot until after 1900 that ballot access restrictions were establishedin a majority of American states. Initially, however, therequirements were minimal. Most states allowed ballot access to acandidate if he obtained and filed as few as 500 signatures only fourweeks before the general election. Moreover, candidates at thattime faced no restrictions on media access or fund-raising. This wasthe pattern when Teddy Roosevelt bolted the Republican Party in1912, and was able to get his new party on the ballot in every stateexcept Oklahoma.The joint response of the Republican and Democratic Partiesto the Roosevelt insurgency was to steadily tighten theanticompetitive provisions of the election laws. The process wasINTRODUCTIONmuch harder for LaFollette in 1924. It was harder still for Wallacein 1968. Not until 1976 and 1980 did it become possible for anindependent to run for president. It was only five years ago thatelections began to be more open and competitive. Significantly, thechange did not come from legislatures, but from court decisionsstriking down laws that violated the first amendment rights ofcandidates and voters.Had the present pattern of election laws applied throughoutthe nation's history, neither the Republican nor DemocraticParties would now exist. Instead, the nation's two main partieswould be the first two: the Federalists and Anti-Federalists. Onlyone President, John Adams, would have been elected under hisactual affiliation. All the rest would have had to seek accomodationwith one of these parties to have any chance of winning. Whatwould have been the national history had all political aspirationsbeen forced through these two parties, or strangled aborning?Would the populist movement that created the Democratic Partyhave brought the muddy boots of Andy Jackson to the WhiteHouse? Would the populist movement that created the RepublicanParty have put the brooding genius from Springfield in thepresidency?From beginning to end, every populist movement in ourhistory has been born in opposition to the powers that be, includingthe dominant politicians of the day. The Democrats andRepublicans are products of such movements. Today, they betraytheir heritage; more importantly, they betray the nation's heritage.The Democrats began as champions of the common man. Todaythey represent the interests of the leaders of a small number ofunions and social organizations, which are not necessarily theinterests of the members of those organizations. The Republicansalso commenced their existence as champions of the common man.Today they represent the interests of the managers of the Fortune500, which are not necessarily the interests of the owners oremployees of those companies. The leaders of both parties consorttoday primarily with people who wear $400 suits and have six-figure salaries. Few of the politicians and their major supporterseither know or understand the needs and hopes of the commonman. Power does corrupt, and we have allowed these oligopolists tolegislate and regulate to themselves a power that has steadily grownmore absolute and more corrupting. Worse yet, organizations thatclaim to be civic-minded, such as Common Cause and the Leagueof Women Voters, have assisted this effort. They have promoted333NORTH DAKOTA LAW REVIEWlegislation and regulation to strengthen "the two-party system."Through lack of perspective they have bought a false bill of goods.A recent Associated Press-NBC News poll showed how theelection laws frustrate the public will at the national level. The pollasked people to state their partisan preferences. Twenty-eightpercent chose Republican, thirty-one percent Democratic, twopercent other parties, and three percent not sure. But the largestgroup was thirty-six percent independent. In the various polls of1980, independents were roughly tied with Democrats and ahead ofall others. Now independents have a significant lead.If the popular attitudes were proportionally reflected inelective offices, independents would hold one-third to one-half of allpositions. They do hold about half of the 500,000 elective positionsnationwide, but almost all are in the some 80,000 localgovernments. Among the 587 major officers in the United States(Governor, Congressman, Senator, President and Vice President),there is only one independent, Senator Harry Byrd, Jr., ofVirginia. It is at the level of major state and national offices thatanticompetitive election laws have their greatest impact.Like a dam on a river, the state and federal laws haveprevented the tide of public opinion from expressing itself for morethan a generation. The significance of the AP-NBC poll is that thepublic preference for independents is still growing. Eventually, itwill crest over the dam and take a majority of the nation's highestoffices.The effect of the Republican/Democratic oligopoly can be seenin the continuing decline in voter participation. It is evidenced inthe most common reason given for not voting - that it makes nodifference who wins. And it can be seen in the steady decline in thecaliber of candidates in primary and general elections. As we allrecognize, a contest between two mediocre baseball teams can beevenly matched. It can be a hard-fought, interesting, see-saw battleto the final out, but the winner is nonetheless mediocre. From anentertainment standpoint, the election of 1976 provided everythingwe could ask for. Yet, the purpose of elections is not amusement ofthe populace, circi to go with panum, but the selection of those whowill govern us. We can survive occasional elections that producemediocre results. A case in point is Warren G. Harding. But wecannot survive permanent and institutional mediocrity - anelection process deliberately designed to avoid serious competition,thereby avoiding many of the critical issues as well.Above all else, this is the greatest danger which may resultINTRODUCTIONfrom present election laws. These laws say, in effect, that the onlychanges which the voters may seriously consider are those whichare acceptable to one portion or another of the politicalestablishment. These enactments abridge the public's right tocreate new parties and new candidacies, which has been the majorsource of innovation and creativity in national policies. This mustchange. Either the doors must be opened by a more objectiveevaluation of our elective system, or eventually the system will fail.The overriding question which must be asked with respect tothese state or national election laws is whether they contribute to, orinhibit, the kind of open and competitive elections which the nationhas historically enjoyed. This question must be asked not only ofproposed changes in election laws and regulations, but also ofexisting laws. In examining any aspect of these laws, we must askourselves whether this part only contributes as a life-support systemfor major parties whose alpha waves are flat. We must determinewhether the present major parties exist in their present form onlybecause of grandfather clauses in the law that give them preferredstatus in ballot access, media time, and public funding. We mustdecide whether protection has made them lackadaisical. If theanswers to these questions are yes, we can see from our history thatthe cure for moribund politics is a healthy dose of competition.Then our approach should not be to tinker with existing laws, butto strike them down wholesale by both judicial and legislativemeans. We must substitute for present laws others that respect ourtradition of freedom and competition in elections.Thus far, the only real progress has been in judicial review ofthe constitutionality of existing laws. Far more often than not, thecourts have struck down portions of election laws that infringe onthe first amendment rights of voters and candidates. These deci-sions have been based, expressly or implicitly, on the ultimatesovereignty of the people, which is the basis of the Constitution andof the Declaration of Independence before it. Unfortunately, fewexperts in election law have adopted this approach, and it hashardly been adhered to by the people themselves through theelection of candidates who are not committed to the maintenance ofthe oligopoly.The political stables, like the Augean ones, must be regularlyflushed out, or the task of cleaning them becomes Herculean. Themost salutary public service that this special issue of the NorthDakota Law Review can perform is not just to inform lawyers aboutthe current state of election laws, but to encourage lawyers, whoNORTH DAKOTA LAW REVIEWhave a special status and obligation concerning the legal frameworkof society, to ask these fundamental questions and to pursue theanswers wherever they may lead. If enough people pursue thesequestions, with enough insight and courage, perhaps this time itwill be lawbooks rather than tea that are dumped into BostonHarbor. Fortunately, the Constitution allows us to take that stepnot in disguise in the dark of night, but in public and in our ownnames. The leaders of such an effort must be those who know themost, and care the most, not just about the question of who will winany particular election contest, but about the more relevant andsignificant inquiry of the long-range structure of Americanelections. Many such people will follow the references, and find andread this special issue of the North Dakota Law Review. How manywill approach the overriding questions, and find their own answersto them, remains to be seen.11. The best single source that demonstrates the traditional flexibility of American elections, andthe effects of such open competition prior to 1900, is PETERSEN,. A STATISTICAL HISTORY OF THEAMERICAN PRESIDENTIAL ELECTIONS (1968). As a parenthetical note, basic research should be thebeginning point for all who seek election reform. For more than a century, and with growingvehemence recently, various national leaders have decried and attacked the Electoral College as ameans of choosing a President. As the statistical history shows, the College was not always a winner-take-all process. It is within the present power of every state to establish district elections for theCollege, which would automatically produce proportional results. Historically, many states havedone this. To do it again requires no amendment of the Constitution. This historical analysisdemonstrates the hypocisy of many present "reformers," wlo say they want change, but forprivate reasons do not attempt the available changes which can accomplish the goal.336

Election Laws: A Case of Deadly Reform

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Election Laws: A Case of Deadly Reform

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