The following is an introduction and excerpt by Theresa Amato, author of Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny. Copyright 2009 Theresa Amato. Reprinted with permission by The New Press.
In the run up to the 2004 elections article after article appeared documenting the reigning chaos in our electoral procedures, and surmising that another “Florida 2000” could happen. After the election, questions were raised in Ohio and in the gubernatorial race in Washington State, but in 2008, the infatuation with the electoral system was otherwise directed to the early primaries and the “historic” potential to elect Barack Obama or Hillary Clinton. With neither election as razor-close as the 537 vote discrepancy in Florida 2000, some of the prior attention paid to our electoral systems has waned.
To the extent concern is shown, it tends to focus on the mechanics of registering to vote, keeping accurate lists, and having votes counted by machines of better-than-dubious programming or security. Less concern is directed to the far more disenfranchising systemic problems of having a “winner-take-all” system that results in uncompetitive elections in most congressional and local races. Nor is there a widespread movement toward choice maximizing voting systems, or just better competition by structuring campaign finance systems to encourage participation for more than our millionaires or those who have access to them.
In this country, we are really just at the beginning of understanding the deep flaws with our arcane electoral processes. Virtually none of the attention is on the rights of third-party or independent candidates to compete on a level playing field with the major parties so that all voters, not just two-party voters, have a chance to vote for whom they want. This book is written for third party and Independents candidates, their voters, the election law reformers and chroniclers, and all those who have tried or will try to grapple with the stunning incompetence and injustice of the broken, two-party dominated American electoral system.
-Theresa Amato, June 3, 2009
Once people find out that I ran the Nader 2000 campaign, they often ask me if I am “sorry” that my first venture into electoral politics was to “help elect” George W. Bush. To the contrary, given how the two-party-imposed structural barriers have operated against third parties and independents in the last half century, I could not be more proud of our efforts to reveal and break down this exclusionary system and to help provide more voices and more choices to the American people. Third parties and independents are arguably the only remaining defenders of real political choice in the United States today. The fact that they continue to exist in a system so rigged against their participation, as this book will demonstrate, is nothing short of miraculous. Am I sorry? Oh yes—I am sorry that we have a broken and uncompetitive electoral system that traps Americans into poor choices and delivers worse government in almost every political cycle, failing for decades to fix, and sometimes even to discuss, intransigent problems like access to health care, poverty, immigration, global warming, fair trade, drug policies, a fossil fuel–dependent economy, racism, corporate crime, civil liberty violations, and many more.
That said, am I sorry that against all odds, with no money, no experience, a ragtag team, and an embryonic Green Party, we put an alternative choice in front of the American people? Hell no. I would do it all again. And did. In 2004, I helped run the only major antiwar candidate for the general election when the Democrats lost their collective nerve and let George W. Bush march the United States into Iraq. And I hope third parties and independents of every stripe will run again and again and again. It doesn’t matter if I don’t agree with a word of what they say. Just like exotic animals I would never make an effort to see, I want third parties and independents to run because I fear for their extinction. It reassures me to see them—like planet ecodiversity. I have never really gone out of my way to see a bird, though millions of Americans apparently do every year. But I wouldn’t want just two bird species or brands of toothpaste or flowers, even if I always do order the red roses. And I don’t want just two-party candidates on my ballot, even if I were never to vote for a third party or an independent such as John Anderson, Ross Perot, or Ralph Nader. I want all individuals to have a fair chance to run—for as long as it takes to get a better electoral system and better leadership for the American people.
Third parties and independents pollinate our political discourse; they offer alternative thinking on, and discussion of, major issues often ignored by the two parties. They instigate election reform and they offer broader choice, even if you don’t choose to vote for them. As Steven J. Rosenstone and co-authors note in their book Third Parties in America, “The power of third parties lies in their capacity to affect the content and range of political discourse, and ultimately public policy, by raising issues and options that the two major parties have ignored. In so doing, they not only promote their cause but affect the very character of the two-party system.”
I show in this book how the two parties have developed barriers to political competition from third parties and independents to ensure the two parties’ continued preeminence. I have personally seen this, from the application of byzantine ballot access laws to the federal financing system to the presidential debates. Scholars including A. James Reichley and Theodore J. Lowi have been saying this for years. Writing in The Life of the Parties, Reichley states, “It is no accident that no enduring new major party has emerged in American politics for more than 130 years.” And Lowi wrote in “Deregulate the Duopoly” in The Nation, “It is not Providence that takes an energetic social movement and crushes it as soon as it chooses to advance its goals through elections. It is the laws of the state here on earth that keep the party system on life support by preferring two parties above all others.”
Lowi goes on to list the single-member districts, the antifusion laws, the gerrymandering, and the “countless state laws that prescribe higher thresholds for the number of correct signatures required on third-party nominating petitions than for regulars on two-party ballots.” He notes that
[e]ven the laws that apply equally to all parties are discriminatory, because they are written in such detail that ballot access for third-party candidates requires expensive legal assistance just to get through the morass of procedures. That mind-numbing detail is doubly discriminatory because the implementation of these laws thrusts tremendous discretion into the hands of the registrars, commissioners and election boards, all staffed by political careeristas of the two major parties, whose bipartisan presence is supposed to provide “neutrality with finality”—but it is common knowledge that they can agree with each other to manipulate the laws for the purpose of discouraging the candidacies of smaller and newer parties.
This book demonstrates in concrete detail the accuracy of these Lowi conclusions.
Our zero-sum, winner-take-all voting system cements the institutional barriers against third parties, protects the incumbents, and at the end of the day, primarily protects the predominance of the two major parties. The Democrats and Republicans have been unresponsive to making our voting system resemble more enlightened, choice-maximizing systems because such a bold move would allow third parties to gain a foothold among voters and thus threaten two-party supremacy. Consequently, the current structural system continues to dictate how our elections are conducted, in which states the presidential candidates will campaign, which voters they cater to, and thus which issues are raised or solutions discussed to move our country forward.
Political economist Albert O. Hirschman in Exit, Voice and Loyalty has a theory about the behavior of oligopolists in the economic arena that author Alan Ware in The Logic of Party Democracy applies in the political context to party competition. In short, when you get only two oligopolists, the lack of diversity leaves both competing over image and branding, as they both make lower-quality products. When our presidential contests devolve into discussing Hillary Clinton’s or John Edwards’s hairstyles, whether Barack Obama or Hillary Clinton is the more “likable,” or how much money Sarah Palin spends on clothes and makeup, this is exactly what I think Hirschman and Ware are talking about.
As a result, we get the canned, polled, three-message-point speeches, and a Fourth Estate focused on the placement of stage props. We have a highly developed economic system that prides itself on competition (falsely and securely in the expectation of socialistic corporate welfare, handouts, and bailouts for the “too big to fail,” e.g. banks), and a neo-Neanderthal, uncompetitive political system that has been dumbed down to squash any enlightened discourse. Voters are left to distinguish between two boxes of soap, each resting on a branding strategy to sell their political product even as they erect barricades against entry to the market for all other suppliers of political thought.
In the political as in the economic arena, the lack of competition produces inefficiencies, and these are most pronounced when the two market leaders collude to keep others out. How many more election cycles will it take until real progress is made on some of our more outstanding problems, such as access to health care or global warming? Why must we suffer through these inefficiencies of a political marketplace when no competitor is allowed to tell the reigning two-party front-runners that their policies have failed? What cost has it been to the American people, not to mention the Iraqis, that neither major party in the presidential debates or on prime-time news would stand up and oppose the Iraq war in the 2004 election, or that both major party candidates supported a massive government bailout in 2008?
Because the structural barriers against third parties and independents are numerous, this all adds up to a self-fulfilling prophecy: third-party candidates do poorly in large part because people think that they will. Moreover, third-party scholars show how the barriers, the electoral outcomes, the lack of judicial rectification, the lack of knowledge of American history, and the media have all confirmed this “prevalent belief . . . that the two-party system is a sacred arrangement. . . . Third party candidates are seen as disrupters of the American two-party system.” Shut out from the bipartisan political cartel in our country, third parties and independents are labeled erroneously as “spoilers” of a fossilized, entrenched incumbency class—instead of as “defenders” of the right to freedom of electoral choice in the United States.
In Third Parties in America, Rosenstone, Behr, and Lazarus conclude: “A citizen can vote for a major party candidate with scarcely a moment’s thought or energy. But to support a third party challenger, a voter must awaken from the political slumber in which he ordinarily lies, actively seek out information on a contest whose outcome he cannot affect, reject the socialization of his political system, ignore the ridicule and abuse of his friends and neighbors, and accept the fact that when the ballots are counted, his vote will never be in the winner’s column. Such levels of energy are witnessed only rarely in American politics.” I hope to demonstrate in a kind of gruesome detail typically absent from academic books how difficult the two major parties have made it for third parties and independents to compete in the electoral process, from ballot access barriers and biased deadlines to partisan election administration, elimination litigation, dense election regulations, and faux presidential “debates.” Throughout this book, I explain the many hurdles third parties and independent candidates must overcome just to have a chance to offer their candidacies in our current electoral process, and I ask why we treat our third parties and independents this way when most of the rest of the civilized world has embraced multiparty democracy.
“Are You Registered to Vote?”
In August 2004, on the steamy streets of Washington, DC, I found out firsthand that asking whether someone is registered to vote may be one of the more complicated questions in the United States. Registration to vote in a U.S. federal election is not a federal requirement. We let the states dictate the terms of registration. Thus you don’t have to be registered to vote in North Dakota, the only state with no registration requirements, but in all the other states you do, by state-imposed criteria. In most states, including North Dakota, you must be a resident at least thirty days before the election. As of 2007, seven states would let the voter register on the same day as the election. Some states limit eligibility because of criminal status. All states now require you to be at least eighteen and a U.S. citizen, though this was not always the case.
In Canada, citizens are automatically registered to vote in a National Register, continuously updated by the federal government, but citizens may opt out and are protected by privacy laws. In the United States, however, all of our voters have to “opt in.” We have opt-out policies in the commercial sector for phone solicitations (the Do Not Call List) and privacy violations, but opt-in policies in the public sector for the civic act of voting.
As one of the few DC residents on the Nader campaign in 2004, and with just a few days to go before the DC deadline to collect valid signatures to put Ralph Nader and Peter Miguel Camejo on the ballot, I decided to help out in the sweltering heat to get a taste of what the valiant circulators were experiencing in trying to collect signatures for the Nader campaign.
I was asking this question—“Are you registered to vote?”—because if you run for president as a third-party or independent candidate (a candidate who is running as the nominee of several minor parties or no party at all), you are forced to comply with an unimaginably arcane set of rules that are different in each of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, and the three territories. The two-party-controlled state legislatures pass laws and the election administrators—usually through a board of elections or a secretary of state’s office—apply the laws and establish the regulations that determine how a candidate gets to be on the ballot. The Supreme Court has said that this process cannot be “overly burdensome” and that the regulations, if they are severe, have to be “narrowly tailored” to meet state interests because these state rules butt up against a candidate’s competing First Amendment constitutional rights to petition, to speak, and to participate in free association. Our goal in DC was to collect 5,000 signatures to meet a 3,600 signatures state requirement. If DC were a battleground state, we would have aimed for between double or triple the signature requirements to inoculate against multiple efforts—by Democratic partisans or partisan officials—to strike Nader and Camejo from the ballot in the states where the vote could be close, as described in Chapter 4. So when you need to collect 5,000 signatures of registered voters in the District of Columbia, or in any state, what do you do? Like a good scout, I first made sure I was wearing the appropriate outfit—comfortable shoes and clothing that made it less likely I would be taken for a nut or a mugger! Armed with clipboards, petitions, campaign buttons, and pens, I went to a metro exit, figuring that this would be a very highly trafficked place. Rookie mistake! Of course it is highly trafficked—but with people who live in Maryland or Virginia and thus are not registered to vote in DC, if they even know where or whether they are registered to vote.
For the 2004 election, approximately 142 million people, or 72 percent of the voting-age citizen population in the United States, were registered to vote, which was the highest since 1992 and up 12.5 million people since 2000.5 So even assuming everyone you meet on the street lives in the state in which you are circulating (an unwise assumption in a place as cosmopolitan as DC), you are already starting with the significant disadvantage of having 28 percent of people not registered. On the order of 15 percent of the eligible voters, or more than 9 million Americans, also move from one state to another each year, and 40 million total move (the difference being those moving in state), making it difficult for both the voters and the state to keep track of voter eligibility in any particular local jurisdiction. And if you were registered at one address and moved, you may no longer be registered to vote, even if you moved in the same jurisdiction. Modern-day mobility, coupled with the lack of ability by the states to maintain accurate voter registration databases, creates registration chaos. Finally, factor in the general lack of citizen interest in voting—only 64 percent of the citizen voting-age population turned out in the 2004 presidential election, which was higher than the 60 percent in 2000—and you will have some sense of the challenge third-party and independent candidates face just getting over the ballot hurdle. Even in 2004, billed as a “high-stakes” presidential election, “more than one in three eligible voters did not participate.” Now add the aversion of most people on the street to being confronted by anyone with a clipboard.
So on the hot August nights I was out collecting, I tried to find registered DC voters willing to sign our campaign’s petition. The first thing I noticed is that as a society we have evolved from congregating on the street corners to discuss whether to take on King George III and subject ourselves to taxes to blogging on the Internet and reading “Politico.” People are more likely to be in front of their computers posting a critique or making a YouTube video than plotting a Boston Tea Party. Indeed, a third of the people I encountered could not even be physically approached because they had on headphones or were talking on their cell phones. Unlike candidates in Britain and most other countries, third-party and independent candidates in the United States have to spend substantial percentages of their time and resources petitioning their fellow Americans just to get on the ballot. And if you are not on the ballot, your candidacy does not exist. No ballot access, no votes.
Our current, deserved obsession with election mechanics has served to obscure many more fundamental problems. Just because the 2008 election margin was not razor-thin does not mean these problems have been fixed. Everything I came to witness or experience in the Nader campaigns in the 2000 and 2004 presidential elections says distinctly that our electoral system does not work for supporters of third parties and independents, but it also doesn’t work well for voters of the two major parties, either. The mainstream media is talking about this at the most rudimentary level, highlighting our collective inability to count and record. But the problems are not limited to getting a better abacus. This may be hard to accept if you share, as I did, our collective bedrock belief that we live in the most advanced democracy on the planet.
Whether you can vote—and whether your vote counts—depends primarily on where you live. Whether candidates appear on your ballot, and in what order they appear, is conditioned on where you live. How much your vote counts compared to others also depends on where you live. Yes, your vote is conditional. It is based on your location in your state and among states. In Chapter 1 we discussed the as-yet-unfixed problems with voter registration rolls—purged and inaccurate as they are from state to state. Here, I set forth a brief look at additional factors—the Electoral College, the mechanics of vote counting, write-in votes, military and overseas voting, absentee ballots and early voting, provisional ballots, and recounts, because as a country we need to get to the point where we say that where you live in the United States should not affect whether and how your vote counts for president of the United States.
Though I encountered these issues in the context of whether a voter for a third-party or independent candidate could get his or her vote counted accurately, timely, and fairly, the problems, albeit to a lesser degree, exist also for two-party voters. All voters should demand more federalization to our federal elections to eliminate the arbitrariness of geography on the value of an individual’s vote.
Theresa Amato was the national presidential campaign manager and in-house counsel for Ralph Nader in both 2000 and 2004—and the only woman to have managed two high-profile American presidential campaigns outside the two major parties. A graduate of Harvard University and NYU School of Law, she is the founder of the Citizen Advocacy Center in suburban Chicago and a public interest lawyer. Amato lives with her family in Oak Park, Illinois.