Third-Party Ballot Access: Examining the 2020 Presidential Election in Wisconsin

Stringent ballot access laws originated in many US states during the Red Scare, when state officials sought ways to bar the Communist Party from ballots. Since then, hurdles for third parties looking to put their names on ballots have only expanded. Supporters of restrictive ballot access laws have defended their position by citing the need to prevent voter confusion that may arise with crowded ballots and the need to uphold the stability of the two-party system, but, in reality, these laws are used today as nothing more than political weapons, threatening the foundation of our democratic process in favor of securing power for major parties [1]. In 2020, Democrats engineered the removal of Green Party candidates from Wisconsin and Pennsylvania to direct more votes to Democratic candidates [2], while Republicans litigated to stave off Libertarian party challengers in selected jurisdictions [3]. In this article, I will examine the Wisconsin Election Commission’s (WEC’s) decision to invalidate signatures gathered in favor of placing the Green Party’s candidates for the 2020 Presidential election on the ballot and explain the unfortunate implications of excluding independent parties from elections.

The question of the validity of Green Party signatures was brought to the WEC by Allen Arnsten, a Democratic attorney in Madison. He filed a verified complaint that the Green Party’s Vice Presidential nominee, Angela Walker, had moved addresses during the gathering of signatures, invalidating signatures submitted with documents citing her previous address [4]. Catching the Green Party on a technicality in the battleground state of Wisconsin was no accident; in 2016, Clinton lost Wisconsin to Trump by a slim margin of 22,748 votes, just 1% of statewide voters [5]. That same year, the Greens picked up 31,072 votes. In 2020, the Democrats wanted to make sure that it would not happen again, so the party that champions voters’ rights suppressed the rights of an independent political party and its supporters rather than risking a chance of losing the race.

The 2020 election was unusual due to the COVID-19 pandemic, leading states to rely heavily on mail-in ballots. Thus, when Green Party nominees Howie Hawkins and Angela Walker filed their case to the Wisconsin Supreme Court on September 14, 2020, the court ruled in a 4-3 decision that they “would be unable to provide meaningful relief without completely upsetting the election,” given that many mail-in ballots had already been sent out [4]. Setting aside the technicalities of Wisconsin election laws, Allen Arnsten likely did not have substantive concerns over Angela Walker’s address change. Neither did the 2,046 people whose signatures were invalidated based on address inconsistencies for Walker. In addition to exclusion of the Green Party on frivolous charges, Kanye West’s name was excluded from the Wisconsin ballot because his attorney turned in his petition 14 seconds late [6]. According to the WEC, turning in a petition at 5:00:14 gives ample reason to disqualify a petition due “no later than 5:00.” With the Greens and Kanye West knocked out of the race, the two major parties solidified their positions on the ballot.

Through ballot access laws, major party politicians write the rules of their own game. These laws are often implemented by elected state officials and elected judges are, themselves, affiliated with the major parties. State legislators largely fall into one of the two major camps and benefit from the continued success of the two-party machine. The higher the threshold for third parties, the more secure their seats become. This creates situations such as the legal battles in Wisconsin, in which a major party can point to a technicality in intricate election laws, catch a third party not meeting one of the burdensome requirements for their appearance on the ballot, and get them thrown out before the race begins. This behavior is anticompetitive and directly counter to the democratic principles that should be governing our elections. Without independent parties, elections can be reduced to merely choosing between the lesser of two evils.

Ballot access laws should be sensible enough to allow legitimate candidates with widespread support to compete in elections. Unfortunately, third parties must face the reality of litigation as a political maneuver and anticipate legal attacks from the two major parties. To fight a political duopoly with access to abundant money and legal resources, lawyers who want to defend the involvement of third parties in the US political arena should step up to help them navigate election law.

References

[1] Hall, Oliver. “Death by a Thousand Signatures: The Rise of Restrictive Ballot Access Laws and the Decline of Electoral Competition in the United States.” Seattle University Law Review 29:407. Accessed March 3, 2021. https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1859&context=sulr

[2] Doonan, David. “Democrats’ Efforts to Deny Ballot Lines to Green Party Is Voter Suppression.” Gp.org, August 18, 2020. https://www.gp.org/dem_voter_suppression.

[3] Sparber, Sami. “Texas Supreme Court Rejects Republicans’ Attempt to Remove 44 Libertarians from the November Ballot.” The Texas Tribune, September 5, 2020. www.texastribune.org/2020/09/05/Republicans-libertarians-ballot-remove/.

[4] Sheila T. Reiff, Clerk of the Supreme Court. Howie Hawkins and Angela Walker, Petitioners, vs Wisconsin Elections Commission, Ann S. Jacobs, in her official capacity as Chair of the Wisconsin Elections Commission, Mark L. Thomsen, in his official capacity as Vice-Chair of the Wisconsin Elections Commission, Marge Bostelmann, in her official capacity as Secretary of the Wisconsin Elections Commission, Julie M. Glancey, in her official capacity as Commissioner of the Wisconsin Elections Commission, Dean Knudson, in his official capacity as Commissioner of the Wisconsin Elections Commission, Robert F. Spindell, Jr., in his official capacity as Commissioner of the Wisconsin Elections Commission and Allen Arntsen, Respondents. Accessed March 3, 2021.

[5] “Wisconsin Canvass Results for 2016 General Election,” November 8, 2016. https://elections.wi.gov/sites/default/files/Statewide%20Results%20All%20Offices%20%28post-Presidential%20recount%29.pdf.

[6] O’Donnell, Dan. “How The Wisconsin Elections Commission Destroyed Fair Elections In Wisconsin.” MacIver Institute, November 5, 2020. https://www.maciverinstitute.com/2020/11/how-the-wisconsin-elections-commission-destroyed-fair-elections-in-wisconsin/