Green Party Ticket Denied Ballot Access in Pennsylvania and Wisconsin
GOP effort to undermine Democratic ticket fails in two battleground states
This week, two state supreme courts issued rulings against Republican-backed efforts to put Green Party presidential nominee Howie Hawkins and vice presidential nominee Angela Walker on the ballot. In both cases, the candidates failed to comply with state ballot access laws. In Wisconsin, this played out in a charged partisan environment in the court. Many Democratic activists were nervous when the court ruled 4-3, based on strict partisan lines, to order (1) a halt to the production of absentee ballots and (2) an accounting from all local election officials as to how many ballots had been mailed to voters already. It will come as a relief to those activists, that the court eventually ruled to lift the earlier order and against the Green Party also by a 4-3 margin (but with a different line-up; one conservative joined the liberals in the majority).
In Wisconsin, the state election agency denied the Green Party ticket a place on the ballot. The agency ruled that the party had not submitted enough valid signatures under state law. The party filed a complaint with the court and asked for injunctive relief (i.e., ordering the state to put the ticket on the ballot). This week, the state supreme court dismissed the complaint because its lateness prevented the court from reaching a decision in its favor because of the confusion it would cause. It claimed it did not base its ruling on laches, which election officials had argued applied here, but rather due to preventing voter confusion.
Laches is a legal concept that that a case should be dismissed where the plaintiffs waited too long to file their complaint (essentially, a common law version of the statute of limitations). In this case, the plaintiffs waited two weeks from denial of ballot access to filing the complaint. Since time is of the essence in all ballot access cases, particularly ones that arise at the end of August before a November election, and the plaintiffs were candidates and aware of the election schedule, waiting two weeks to file could have been considered laches. But, for some reason unexplained, the court did not rule on that.
In Pennsylvania, the facts are probably a little confusing for the lay person. The Green Party selected two “placeholder candidates” to put on its state nomination papers to circulate for voter signatures. This was done to ensure that the party would not be left off the Pennsylvania ballot, presumably due to a conflict between the party’s own nominating schedule and the signature submission deadline. The signature papers were submitted on the day of the deadline. Afterwards, the party attempted to “substitute” Hawkins and Walker for the placeholder candidates. Although there is apparently nothing in state law that explicitly allows for this, the state supreme court did not see this as a problem as the placeholder candidates complied with state ballot access law. They did not – as they did not properly submit the presidential candidate’s supporting affidavit. On Tuesday, the court ruled in a 5-2 decision that since the placeholder candidate’s nomination papers were defective that means that she was never the party’s presidential nominee in Pennsylvania. As a result, there could be no substitution for a candidacy that does not exist under the law. The entire facts are even stranger, but the above are the only important things to know about this case.
In both states, the Green Party was represented by Republican Party lawyers. Green Party representatives claimed they reached out to both major parties for assistance and only the GOP responded. The reason is clear: in both states in 2016 the margin of victory for Trump was less than the number of votes for the Green Party ticket. Whether this really made a difference in the outcome is unclear because we have no reliable way of knowing whether, in the absence of a Green Party option on the ballot, these voters would have (1) voted at all, (2) voted for another third party ticket, (2) voted Republican, or (4) voted Democratic. Nevertheless, it is commonly believed among major party activists that third party candidates are spoilers even though there is little polling support for potentially successful spoiling this year. However, the ballot access problems for the Green Party in Wisconsin and Pennsylvania this year are of their making. The Wisconsin case is the trickier one, but in both states the party did not comply with state law.
In both of these states, the circumstances surrounding the cases show differing levels of disingenuous legal arguments among all the parties.* This is what third parties have become in today’s American democracy: weapons to peel off voters from one of the major party’s candidates. The partisanship over how the major party’s line up with the denial of ballot access in the first place and later supporting the Greens’ claim are evident. (For instance, we might have seen a reversal of the positions if the Libertarian Party was a perceived threat to throw either state to the Democrats – and had screwed up the nomination process, which the Greens definitely did in both states.) However, this partisanship is rational and understandable considering the United States is officially, not just functionally, a two-party system. (See the 1997 US Supreme Court decision in Timmons v. Twin Cities New Party.)
The Greens are not free from blame in this disingenuous ballot access game. This is because third parties cannot win national elections thanks to the first-past-the-post nature of our electoral process. Therefore, the only thing they have to offer at the presidential level is giving voters a chance to make a symbolic vote. While that is not unimportant, since Timmons third parties cannot work towards meaningful coalitional relationships with major party candidates absent states voluntarily adopting fusion voting (which only two have done). Under our currently existing constitutional arrangement third parties can never be more than spoilers in our presidential elections.** Almost by definition, third parties in America represent small factions of voters. For instance, if the Greens could represent 50% of voters they would presumably just take over the Democratic Party. Since there are so many barriers to entry for third parties, it would be the more practical thing to do. And if the Greens took over the Democratic Party they could rename it the Green Party if they wanted to, but it might make more sense to just use what exists, including the name.***
I have been working on analysis of Timmons and its impact on the party system in the United States (and why it is not just rational, but essential, for independents like Bernie Sanders and Mike Bloomberg to run for major party nominations if they hope to win). I hope to share that after the election – or earlier if there is a slow day in the campaign, but I doubt that will happen.
There are less than 50 days until November 3rd!
* To be clear, “disingenuous” is not frivolous. Lawyers make arguments all the time on behalf of clients that fit a theory of the case, but that might not be related to the clients’ actual motives. In the end, for the courts it is about getting the law correct.
** This phenomenon is much more salient at the presidential level. More local seats can offer opportunities for third party candidates to win, but very few have ever done so.
*** Names don’t always telegraph the ideological orientation of political parties. For instance, the Jamaican Labour Party just won their national election. The Labour Party is not a social democratic party, but a conservative one.