Ballot Access Law and Third Party Strategy: How the Ruling Democratic-Republican Ballot Access Regime Produces the Spoiler Effect

The highly restrictive ballot access regime that has been constructed in virtually every state of the union is one of the primary means by which the Democratic and Republican Parties maintain their duopoly system of government. But ballot access law not only functions as an immediate objective hurdle to third party and independent political campaigns, it also has secondary effects that condition Democratic-Republican politics and warp third party and independent strategy. Consider the following hypothetical scenario. A relatively new state-level third party political organization has the choice between funding a number of candidates for local and state offices, in races which they have a significant chance of winning, or the organization can run a smaller number of candidates for higher level state and federal offices, in races they are much less likely to win. However, in certain of the latter races, even if their candidate does not win but still surpasses a certain threshold of support (say 5%), the group retains state-wide ballot access and recognition as an official party in the next election cycle. In such a scenario, the ballot access regime designed to maintain Democratic-Republican hegemony also effectively provides incentives for third party organizations to "spoil" elections by waging political campaigns that can be considered a success if they garner the support of only 5% of voters. However, the fear of the spoiler effect often leads voters to spurn third party candidates in favor of the lesser evil among the major party candidates, and so the third party organization may not retain ballot access even as it funnels resources away from contests it has the best chance of winning.

This situation is not dissimilar to the one faced by the Green-Rainbow Party of Massachusetts. At IPR, Ross Levin excerpts an article by progressive activist and publisher of Open Media Boston Jason Pramas, who asks: "Are Grace Ross and Jill Stein jumping the political gun by running in the Mass. gubernatorial race?" In the gubernatorial race, Ross has declared her intention to challenge incumbent Democrat Deval Patrick in the Democratic primary, while Stein will oppose him in the general election under the banner of the Green-Rainbow Party. Pramas argues that even if Stein wins, she will be hamstrung by the fact that there are so few Green-Rainbow Party members in elected office across the state. Pramas writes:
My main fear is not that Patrick will lose and that a Republican will be elected governor. Pretty much the same pro-business policies are going to result either way - although it will be somewhat worse in some important policy areas if the Republicans win. My main fear is that Ross and Stein wouldn't ever be allowed to govern even if they won - which speaks to the long arduous job that will be necessary to uproot the existing political establishment. Although it's hard to ask people who have already devoted a lot of effort to the higher level political campaigns they've mustered in the last several years to do even more hard work at the grassroots level before going for various higher level electoral brass rings. Nevertheless, I think that's the way it has to be.
Pramas has already sought out Stein and Ross's response on this precise issue:

When I brought these points up to Ross and Stein, both candidates basically said that they felt their political groupings would benefit much more from a statewide campaign than from lower level campaigns. Because they can definitely get a lot of attention paid to their ideas even if they don't get a zillion votes. And they can win a lot of partisans who will work with them over the long haul in the years to come if they do a credible job as candidates. Both women have shown they can more than hold their own in public debate against traditional and non-traditional competitors. Plus it's fairly clear that both candidates do believe there's a hope that they could actually win. And I don't grudge them that. It is indeed possible that one of them could, depending on the circumstances. But that possibility is a slim one at best.

On the down side, they can also burn out a lot of people that might work in their campaigns who will not return to their circles after the experience. And they can also lose serious points with the general public that might just view them as a sideshow - and dismiss them long after they've built a more polished and experienced multifocal electoral apparatus.

In the present context, however, the point is that even if the Green candidate were firmly convinced she couldn't win the election, there is still a strategic incentive to remain in the race: namely, to surpass the minimum threshold to retain ballot access. The MA Green-Rainbow Party first achieved official political party status in 2000 because Ralph Nader received 6% of the vote in the state on the Green Party ticket in the presidential race. Thus, even though Nader did not win the election and even though his campaign was widely seen as having "spoiled" it in favor of the Republican candidate, the effort may still be understood as a success, from the perspective of the MA Greens, insofar as it achieved ballot access for the party at the state level. Do not Democrats and Republicans thus have an interest in reforming ballot access laws which incentivize third party organizations to run campaigns which Democrats and Republicans argue only function to spoil elections?


Dale Sheldon-Hess said...

Or, as I argued in December, it's the other way around. Given a spoiler-prone voting system, once a third party causes an election to be spoiled (i.e., the "wrong" two-party candidate got elected), the ruling two parties then enact rules making it more difficult for third-parties to participate/interfere, thereby protecting the voters from electing their least-preferred among the two-party candidates.

Don't confuse correlation with causation.

The solution is (I know, I sound like a broken record) a spoiler-free election method; then everybody wins.

And score and approval voting are the only election methods that are spoiler-free with more than two candidates.

d.eris said...

Taken to its logical conclusion, this would lead then to the exclusion of third party and independent candidates altogether, no? But they would fight back as well. There are a number of reciprocal relationships in play here.

btw, Dale, I still want to do a guest post for LOAE, been working through a number of ideas I want to bring together.

Ross Levin said...

d.eris, this is one of your more creative and better posts. I'm posting it at IPR.

Dale Sheldon-Hess said...

Well, like you say, there are competing interest; for one, Americans like choices. I didn't say that the goal of the laws was to eliminate third parties (if they were, they could say that), I said it was to mitigate the effect of third-parties as spoilers. Occasionally, third parties win (usually small, local) elections: in those elections, the third party clearly wasn't a spoiler, and the laws (should) want to encourage that sort of participation. The laws just a) don't always stop spoilers and b) sometimes stop participation that is not spoilers. In other words, is a very sloppy and ineffective law for its purpose.

But if you move to a spoiler-free election method, what happens is you remove the (perceived) necessity of these laws from the point of view of the top-two parties. And without that counter-weight, I think we would find it much easier to repeal all these poorly-aimed ballot-access laws.

Peter said...

Massachusetts is debating changing its voting system to instant runoff voting. See

Anonymous said...

There is a slow growth in the number of states that use registration data, rather than votes in a statewide race, to determine if a party should remain ballot-qualified. So at least in some states, state legislators understand this.

PS: I'm not trying to be anonymous; I'm Richard Winger, but the system won't let me be anything but anonymous.

Dale Sheldon-Hess said...

Oh for the love of... Massachusetts now?

IRV doesn't help third parties win!

IRV doesn't eliminate spoilers!

d.eris said...

There's you're cue, Dale, lol. The idea I was trying to get at was that the mandatory minimum laws provide an incentive to run campaigns only in order to get upwards of 5% of the vote. I do think though that the logical extreme of much ballot access law would be simply to ban third party and independent candidates. If implementing score voting also removes the perceived necessity for many of these laws, thus simplifying the code, that is yet another argument in its favor.

Richard, that's an interesting development. Using registration data could be tricky too, especially with the ranks of the unaffiliated on the rise.

And thanks Ross.

D. Frank Robinson said...

Voters who won't sort themselves into one or the other of the entrenched parties' pen are "spoilers." Yeah, damn voters spoil the racketeering of the two parties.

On a solution to the ballot access issue see:

Free the "spoilers."