Ballot Access Laws and the Two-Party System

Partisanship and the strength of the two major political parties have waxed and waned in the United States over the last several decades.  After Ross Perot’s strong performance in the 1992 Presidential Elections, “a number of political observers-Theodore Lowi (1994) and Gordon Black and Benjamin Black (1994) among them-began to argue for the creation of a third major party, citing strong public support that they claim exists for a viable, mainstream alternative” (Collet 1996, 431-432).  Almost two and a half decades later, public support for a viable third party remains high.  According to a Gallup poll in September of 2017, only 37% of respondents believe that Republicans and Democrats do an adequate job while 61% claim that these parties do a poor job and a third party is needed.  This mark of 61% in favor of a new party is the highest point in their reported data from 2003-2017. (Gallup 2017).

One does have to wonder that if the majority of the American public favors the creation of a new political party then was hasn’t a viable alternative emerged?  In answering this question, it seems likely that many political scientists would point to Maurice Duverger and his famous political law.  As William Riker states, “Duverger’s law proposes that ‘the simple majority single-ballot system favors the two-party system.’  Duverger described this sentence by saying: ‘Of all the hypotheses…in this book, this approaches most nearly perhaps to a true sociological law’” (Riker 1982, 754).  I would wager that is unlikely the average American knows the name of Duverger or his law, nevertheless, throughout my exploration of politics I’ve heard it time and time again that voters don’t end up casting their ballots for their sincere choice due to worries of wasting a vote or throwing a vote away due to the idea that the United States is a two-party system.  But, is it possible that the reason why we don’t see an abundance of supposedly badly desired third-party options listed on the ballot is that there are other institutional factors at play, specifically in the area of ballot access laws?

In his famous work, An Economic Theory of Democracy, Anthony Downs explores the topic of party systems and ideologies in chapter 8.  He argues that in a population where political opinions are normally distributed in a bell curve, two major political parties will emerge on each end of the ideological spectrum and, over time, they will become more and more alike as they converge toward the median voter (Downs 1957, 114-119).  In the latter half of the chapter, Downs considers the topic of new political parties.  In particular, he explores the creation of the Labour Party in Britain who, thanks to the expanded franchise of the working class, was able to position itself to the left of the Liberal Party to become the dominant party to rival the Conservatives.  “New parties are most likely to appear and survive when there is an opportunity for them to cut off a large part of the support of an older party by sprouting up between it and its former voters” (Downs 1957, 128).  If, as Downs claims, parties shift over time, and new parties either spring up to supplant the old ones or in order to shift a political party in a certain ideological direction, why have we not observed this trend in the United States?

Randall Holcombe suggests an answer.  “In the Downsian model of political competition there are no barriers to entry, and suppliers of legislation are chosen from those who are competing to become suppliers based on how closely the output they propose to supply matches the desires of demanders” (Holcombe 1991, 233-234).  So why then have these ballot access laws emerged?  Holcombe compares incumbent legislators to a cartel and makes the claim that given that they control entry into the political marketplace, they can set thresholds, such as ballot access laws, to secure their continued monopoly on political power and keep competition at a minimum.  “The coalition of incumbents uses barriers to entry to place challengers at a competitive disadvantage, which frees incumbents from having to strictly follow the desires of the voters” (Holcombe 1991, 231).

Thomas Stratmann explored the topic of ballot access restrictions about 15 years ago by examining both signature requirements and filing fees.  He found “that monetary ballot access restrictions are an impediment to both major- and minor-party candidate entries into electoral contests…a $1000 increase in the filing fee leads to a 4% decrease in major-party candidates and a 43%…decrease in minor-party candidates” (Stratmann 2005, 69).  He also determined that “signature requirements have no statistically significant effect on a minor-party candidate’s decision to enter the race” (Stratmann 2005, 69).  I found this second statement particularly curious and one that demanded further investigation.

Unlike many other nations, the United States does not have uniform ballot access laws.  “US electoral administration is decentralized and the exact voting experience (such as ballot format and voting technology) can vary from state to state (and even within states)” (Taylor 2018, 721).  He goes on to add, “a cursory look at the US party and electoral systems would suggest that they represent clear-cut proof of Duverger’s law, the notion that single-seat plurality elections tend to create two-party systems” (Taylor 725).  From 1946 to 2014, he reports that in the United States the effective number of political parties is 2.07 while the effective number of parliamentary parties is even lower, 1.94. (Taylor 2018, 725).  He briefly touches on ballot access laws, “state election laws essentially guarantee a ballot slot for major party nominees in the United States, but not for smaller third parties (most especially not new ones)” (Taylor 2018, 727), but his central theory is that the rigid American two-party system results from a presidential system and the phenomenon of primary elections.

So, do ballot access laws make an observable difference in elections?  If so, how?  One particular election springs readily to mind.  During Super Tuesday on March 6th, 2012, along with a multitude of other states Virginia held its Republican presidential primary.  Although several candidates sought to have their names listed, including Newt Gingrich and Rick Perry, according to the Republican Party of Virginia “Gingrich and Perry fell short of the 10,000 signatures of registered voters required for a candidate’s name to be on the ballot…it was unclear if Minnesota Rep. Michele Bachmann, former Pennsylvania Sen. Rick Santorum, or former Utah Gov. Jon Huntsman submitted petitions to the state board” (NBC News).  Gingrich, Huntsman, Perry, and Santorum filed a lawsuit in order to be listed as candidates but were unsuccessful (Myers 2012).  As a result, Virginia voters ended up with only two choices, Mitt Romney and Ron Paul.  

After this election lawmakers sprang into action to lower ballot access laws presumably in order to provide greater competition.  Where primary challengers once needed 10,000 valid signatures with at least 400 signatures from each of Virginia’s 11 congressional districts to run for any statewide office, (§ 24.2-506) after 2012 both of these requirements were cut in half (§ 24.2-545).  In the next election which followed these reduced requirements, 13 candidates appeared on the ballot for the 2016 Virginia Republican presidential primary.  Although certainly curious, one should be wary of drawing conclusions based upon a single observation.  Once more contests have taken place, it will be interesting to note if the average number of candidates on the ballot in a primary is statistically higher after the signature requirement slashing. 

However, it is also important to note that unless they are running for a party’s nomination in a primary, neither Republican nor Democratic candidates need to collect any signatures to have their names placed on the ballot for a general election.  But, any third party or independent candidate is still required to cross this threshold (§ 24.2-506).  Along these same lines, one does have to wonder if ballot access laws are used as a tool to keep third-party and independent candidates out of competition (as Virginia State Senator Mark Obenshain (R-26) mentioned to me in late 2014).

With all of these thoughts in mind, my hypothesis is two-fold.  First, there is an inverse relationship between the hurdles of ballot access and the appearance of third-party candidates.  That is to say that greater restrictions on ballot access will result in fewer third-party candidates running for office and fewer restrictions will result in a greater number of third-party candidates.  Second, one would expect fewer uncontested elections in times when ballot access requirements are reduced.

Testing my hypothesis turned out to be a more difficult task than originally anticipated.  Unfortunately, ballot access laws are not readily available for most states and require poring through either state code or election laws.  My original thought was to have “a tale of two Virginias”.  Given that both West Virginia and Virginia have a bicameral General Assembly featuring a 100-member House of Delegates and either a 40- or 34-member State Senate, it seemed like a natural comparison at first glance.  Virginia requires third party and independent candidates to gather 125 voter signatures to appear on the ballot for House of Delegates and 250 signatures for the State Senate while West Virginia requires 1% of the number of voters in the previous election.  However, upon closer inspection, this comparison quickly became exceedingly messy.  For starters, while Virginia elects its House of Delegates in every odd-numbered year and the entire Virginia Senate in every other odd-numbered year, West Virginia elects its House of Delegates in every even-numbered year along with an alternating half of the West Virginia Senate.  Adding further complication, although the Virginia House of Delegates is elected in 100 single-member districts, presently the West Virginia House of Delegates is broken into 58 districts where most are elected through single-member plurality and others in multi-member block votes.  Given these considerable differences in election times and district magnitude, it seemed nearly impossible to draw any meaningful comparison between the General Assemblies of the two states.

Exploring the idea of changes in ballot access further, I discovered that West Virginia had modified its ballot access laws in 1999, doubling the signature requirement from 1% of the votes cast in the previous election to 2%.  However, in 2009, the West Virginia General Assembly voted to return to their earlier requirement of 1%.  (West Virginia 2017).  Even though I could not find the lines in the West Virginia Code which listed these changes, I contacted the office of the Secretary of State who confirmed the details mentioned above.  In addition, although I would have preferred to look strictly at single-member districts, as I believe it would yield more precise results, using this information I would be able to examine the total number of third-party candidates who ran in each election cycle in years where the 1% rule was employed and others where the 2% hurdle was in place to determine if either resulted in statistically significant differences.  At the same time, these results would show if times of lower ballot thresholds would yield more political competition through fewer uncontested elections.

For this data, I combed through election results from the West Virginia Secretary of State’s website.  I decided to use general election data from 1996 to 2018 for several reasons.  First, one of the major third parties in West Virginia, the Libertarian Party of West Virginia, was founded in 1994.  Although a Libertarian candidate ran for governor in the 1980 gubernatorial election, the party did not field another candidate for this office until 1996.  Similarly, the Mountain Party did not run a candidate for governor until 2000 (Historical Election Results).  Second, I discovered that as one explores the publicly available data, the farther one goes back in time, the spottier information becomes.  For example, for several elections in the mid-1990s, the website fails to list the party affiliation of some or all of the General Assembly candidates.  Therefore, I would need to exclude such elections and thus each year would not have the same number of elections, 100 for the House of Delegates and 17 for the State Senate.  Along these same lines, for uniformity purposes, I excluded the results for any special elections that took place for either of these bodies during the time frame.

Figure 1 shows both the total number of 3rd party candidates (those who are neither Republican nor Democrat) who ran for the West Virginia House of Delegates in a given year, as well as the total number of unopposed elections.  As mentioned, after the 1998 elections, the General Assembly doubled the signature requirements from 1% to 2% and, as the chart shows, one does not see the number of 3rd party candidates return or exceed the 1998 levels until 2012 after the ballot requirements were lowered once more.

Running a regression with the dichotomous variable of ballot reform (the elections of 1996-1998 and 2010-2018 as opposed to 2000-2008), we find a fairly substantial coefficient of 6.14 with a P value of .05, lending considerable support for the idea that yes, in the West Virginia House of Delegates 3rd party competition is statistically higher when ballot access laws are at a lower threshold.

By comparison, running a similar regression using the same dichotomous variable of ballot reform, we find that, on average, that during times of lower ballot access thresholds, there are about 4 fewer uncontested races per election cycle.  However, this result is not statistically significant. 

Moving on to the West Virginia State Senate we observe a similar pattern.  Right before the ballot access signature requirement was doubled, there was a high-water mark of 3 3rd party candidates that was not met or exceeded until the 2014 elections.  I find it also especially interesting the sharp decline in uncontested Senate elections after 2012, dropping to 0 for these last two cycles. 

Looking at a regression for the Senate using the same variables as the previous tables, we find that this lower threshold for ballot access predicts about 1.5 more 3rd party candidates per cycle as compared to the higher percentage.  The P value is .09, which is higher than the desired .05 or lower, but given that only 17 seats are elected each cycle and only 10 elections are in the data set, I think it still shows some important significance.

Moving on to unopposed Senate elections we find that lower ballot access laws predict 1.5 fewer uncontested contests.  However, like the House results, the high P value means that we shouldn’t think too much of this outcome.

After presenting these findings in my class, Elections and Political Parties Around the World, my professor, Dr. Herron, suggested examining the results of local elections in West Virginia as well, based upon the assumption that third parties are more likely to run candidates at the local level given that costs of running such a campaign would be lower as would be the signature requirements necessary to achieve ballot access.  The three largest cities in West Virginia, Charleston, Morgantown, and Huntington, seemed to be the most logical places to examine.  After some preliminary research, I discovered that cities in West Virginia hold their council elections in the spring of odd-numbered years.  However, with the exception of the road bond issue in 2017 and a vote on an amendment to the West Virginia Constitution in 2005, the Secretary of State’s website had no other information about odd-numbered year elections.  Calling Mac Warner’s office revealed that state law did not require localities to present their municipal election results to the secretary and so they chose not to do so. 

Delving further, I tried calling the clerk in the respective cities in the hopes of gleaning information.  In Charleston, they told me that they did not keep any records of their previous council elections.  In Morgantown, the elections are nonpartisan and thus it would be nearly impossible to determine if any of the candidates were associated with third parties.  Lastly, in Huntington, the clerk told me that they did not have any electronic records of their city council elections.  However, as the election results are listed in the council meeting following the election, one could go through the council minutes for the past two decades to compile the data.  Unfortunately, that data collection would have to take place by hand in the municipal building in Huntington which although may prove valuable, will require considerably more time to collect.  By comparison, the Virginia Board of Elections website includes results for city council elections from 2000 to the present, General Assembly elections from 1947 to the present, and federal elections all the way back to 1789 (though the data appears to be incomplete prior to 1851) (Virginia Elections Database).  If I could offer a policy recommendation for the West Virginia General Assembly, I would suggest that not only should they require localities to report their results to the secretary of state, they should make certain that the records listed on the website are as complete and accurate as possible. 

In a 2012 article comparing the single-member plurality systems in the United States, the United Kingdom, and India, Patrick Dunleavy declares “Duverger’s law is now junk”, finding that “perfect two-party systems like this are now found almost nowhere outside of the USA…in particular, all the major Westminster system countries have shown strong trends toward multi-partism” (Dunleavy 2012).  Richard Winger has the same observation stating “in most two-party systems, there are substantial third parties.  In Great Britain…the Liberal Democratic Party is a very substantial third party…Canada has several very substantial third parties…only in the United States is there a two-party system with no substantial, long-lived third parties” (Winger 1996, 321).  Returning to Taylor, he adds, “the presence of first-past-the post systems do not create such outcomes in Canada, India, or the United Kingdom, such rules do not typically create the type of rigidity that we see in the United States” (Taylor 2018, 725).

What is the difference which can account for the abundance and success of third parties in other first past the post systems and their almost nonexistence in American politics?  Could stringent and unfairly applied ballot access, as mentioned in the case of both Virginia and West Virginia be the key?  Although he explores a much earlier time period than the focus of this paper, Winger argues “ballot access laws for new and small political parties were lenient in the United States, prior to 1930.  In fact, there were no ballot access laws in the U.S. before 1888.”  As a result, “there were several substantial third parties before 1930” (Winger 1996, 322).  He goes on to state that changes were made in ballot access laws due to fears surrounding the Communist Party and although these stringent requirements were successful in their aims to thwart the Communists, they also successfully squelched every other third party as well. (Winger 1996).

However, as mentioned in the early paragraphs, not all researchers agree that more stringent ballot access laws have led to a decline in American third parties.  For example, although Tamas and Hindman admit, as Winger does, that “ballot access laws became gradually more difficult for third-parties since the inception of the Australian ballot…[and]…there was a dramatic drop in the percent of House districts in which third-party candidates were getting onto the ballot…[however]…except in extreme cases, ballot access laws have had only a small impact on the ability of third-parties to get their House candidates onto the ballot” (Tamas & Hindman 2014, 273).  It is important to note that these researchers used data from federal level elections while I focused on state-level results.  It is possible, of course, that there is a discernable difference between the two and invites further explorations. 

In conclusion, the topic of ballot access laws and how they can influence third-party competition and electoral competition in general is an ongoing debate between political scientists that this paper cannot resolve by itself.  However, these West Virginia results provide some clues.  Given the findings of Dunleavy and others, I’d like to examine ballot access laws in both the UK and India to see if they have high thresholds or laws, as found in some US states, which create uneven playing fields so that existing political parties can use their advantage to squelch competition and potential rivals.  If not, this discovery would help explain why Duverger’s Law is still alive and well in this country while other researchers have discredited it when discussing single member plurality systems elsewhere.  Free and fair elections are the supposed hallmark of democratic nations.  After all, unequal ballot access laws clearly violate the international concept of free and fair elections.  “All candidates, parties, and political organizations that wish to run for office should be able to do so and to compete on the basis of equal and impartial treatment under the law and by the authorities” (The OSCE 2007).  If one or more political parties are using electoral laws to enforce a monopoly (or perhaps more appropriately called a duopoly) and prevent potential rivals from mounting a challenge, then the wishes of a majority of the American people for more options at the ballot box will continue to go unrealized. 

Resources

Collet, Christian. 1996. “Trends: Third Parties and the Two-Party System.” Public Opinion Quarterly60(3): 431–49.Opinion Quarterly60(3): 431–49.

Downs, Anthony. 1957. An Economic Theory of Democracy. New York: Harper Collins.

Dunleavy, Patrick. 2012. “Duverger’s Law Is a Dead Parrot. Outside the USA, First-Past-the-Post Voting Has No Tendency at All to Produce Two Party Politics.” USAPP. http://blogs.lse.ac.uk/politicsandpolicy/duvergers-law-dead-parrot-dunleavy/ (November 18, 2018).

Gallup, Inc. 2017. “Perceived Need for Third Major Party Remains High in U.S.” Gallup.com. https://news.gallup.com/poll/219953/perceived-need-third-major-party-remains-high.aspx (November 30, 2018).

“GOP: Newt Gingrich, Rick Perry Fail to Qualify for Virginia Primary.” 2011. NBCNews.com. http://www.nbcnews.com/id/45782410/ns/politics-primaries/t/gop-newt-gingrich-rick-perry-fail-qualify-virginia-primary/#.XACJyBNKg8Y (November 30, 2018).

“Historical Election Results and Turnout.” Secretary of State Mac Warner.             https://sos.wv.gov/elections/Pages/HistElecResults.aspx (November 18, 2018).

Holcombe, Randall G. 1991. “Barriers to Entry and Political Competition.” Journal of Theoretical Politics3(2): 231–40

Mears, Bill. 2012. “Four GOP Candidates Fail to Make Virginia Primary Ballot, Judge Rules – CNNPolitics.” CNN. https://www.cnn.com/2012/01/13/politics/virginia-gop-primary-ballot/index.html (November 18, 2018).

Riker, William H. 1982. “The Two-Party System and Duvergers Law: An Essay on the History of Political Science.” The American Political Science Review76(4): 753–66.

Stratmann, Thomas. 2005. “Ballot Access Restrictions and Candidate Entry in Elections.” European Journal of Political Economy21(1): 59–71.

Tamas, Bernard, and Matthew Dean Hindman. 2014. “Ballot Access Laws and the Decline of American Third-Parties.” Election Law Journal: Rules, Politics, and Policy13(2): 260–76.

The OSCE/ODIHR: Election Observation Handbook. 2007. The OSCE/ODIHR: Election Observation Handbook Warsaw: ODIHR.

“Title 24.2. Elections.” § 24.2-506. Petition of qualified voters required; number of signatures required; certain towns excepted. https://law.lis.virginia.gov/vacode/title24.2/chapter5/section24.2-506/  (November 18, 2018).

“Title 24.2. Elections.” § 24.2-545. Presidential Primary. https://law.lis.virginia.gov/vacode/title24.2/chapter5/section24.2-545/ (November 18, 2018).

Taylor, Steven L. 2018. “Electoral Systems in Context: United States.” In The Oxford Handbook of Electoral Systems, New York, NY: Oxford University Press. essay, 721–39.

Tullock, Gordon. 1965. “Entry Barriers in Politics.” The American Economic Review55(1/2): 458–66.

“Virginia Elections Database » Virginia Election Statistics.” Virginia Elections Database. http://historical.elections.virginia.gov/ (November 30, 2018).

“West Virginia Legislature Passes Major Ballot Access Reform.” 2017. Libertarian Party. https://www.lp.org/news-press-releases-west-virginia-legislature-passes-major-ballot-access-reform/ (November 21, 2018).

Winger, Richard. 1996. “How Ballot Access Laws Affect the U.S. Party System.” American Review of Politics16: 321–50.

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