Ballot Battles: A Conversation With Richard Winger

Richard Winger has been fighting for fair ballot access laws for decades. He spoke with us by phone.

By: The Captive American Staff

If you want to find out about third parties or independent political movements in America, past and present, there is one man to talk to: Richard Winger of San Francisco. For four decades now, Winger has been regarded as the prime expert on people and groups that attempt to expand the two-party system.

Winger is also a foremost authority on exclusionary ballot access laws. These laws, passed by Republicans and Democrats in state legislatures over the last hundred years, make it all but impossible for independent or third party candidates to appear on election ballots. Thanks to Winger’s efforts, and those of like-minded activists, many of these laws have been reformed. But dozens of states still force potential challengers to pay exorbitant costs and gather tens of thousands of signatures just for the right to compete.

Since 1986, Winger has published the monthly newsletter, Ballot Access News, which chronicles the ongoing fight for equitable elections. He also produces the website, ballot-access.org. He spoke with us by phone.

Question: How did you get involved in studying election law, particularly ballot access rules?

Richard Winger: When I was young, in the early 1960s, I was fascinated by people in minor parties. But I was frustrated because, in my own state of California, [these parties] weren’t on the ballot and I couldn’t get any data. So that deflected me into wondering why these parties were on the ballot in some states and not others.

Every state has its own separate rules and requirements for political candidates to qualify for the ballot, right?

Yes. We’re one of only two countries in the world where there’s no uniform ballot access law for national offices. When I was young [and first started finding out about this], I thought, “This is crazy. If you’re running for president, you ought to be on the ballot in all states. I mean, you’re running for president of the whole country!”

What is the history of ballot access in this country? How did we get stuck with this crazy, patchwork system?

Before 1888, there was no such thing as a government-printed ballot in the United States. Voters could make their own ballot and put them in the ballot box; although, realistically, most voters didn’t want to go to all that trouble so the parties printed ballots and distributed them to anyone that wanted them. The typical voter would just pick up a ballot that was printed by a party and if that voter didn’t like all the names on that ballot, he was free to scratch off the names he didn’t like and write in the names of people from the other party or whatever.

I’m not saying it was a good system. But it was certainly a free system. The government couldn’t prevent people from voting for anyone they wanted. There was no such thing as a filing fee, or a ballot access petition, or a Declaration of Candidacy. The government was just completely out of the picture.

And under that system, we had much more fluidity. Three times in the 19^th Century, a major party died off and another one rose up to take its place. The Federalists died and in its place was the National Republican Party. And that died off and the Whig Party rose up. And then that died off and the Republican Party rose up.

And yet we’ve had the same two parties in power since then. And one of the main reasons for that is because they’ve conspired to pass very restrictive ballot access laws, right?

You’re right. North Carolina, when they printed up their first government-printed ballots, said a party could only be on the ballot if it had polled 50,000 votes for governor in 1900. Well, that was only the Republicans and Democrats and that could never ever change because nobody can change the past.

And the independent candidate petition for the government printed ballots in North Carolina was 10 percent of the last gubernatorial vote. [Meaning anyone who wanted to run for office had to collect valid signatures from 10 percent of the people who had voted in the last election for governor.] And they increased the independent petition in 1935 from 10 percent to 25 percent!

What kind of numbers are we talking about in terms of the number of signatures needed to get on the ballot then?

Hundreds of thousands. And it’s still bad in North Carolina. North Carolina has never, ever had an independent candidate on the ballot for either house of Congress. We have a lawsuit pending right now against the current U.S. House requirement, which is 4 percent of the total number of registered voters in the district, which in some districts is over 20,000 signatures. In all history, no independent or minor party candidate for U.S. House has ever met a petition requirement greater than 13,000 signatures.

How do we fight this? Is there any way to overcome the stranglehold that Democrats and Republicans have on our ballots?

There are two ways to ease the laws. One is by persuading state legislatures to ease them and that does work if people would just try. In half the states, the legislatures have made improvements in their ballot access laws in the last 25 years. And the other way is to sue. There’s some court protection against really bad access laws. In 1968, the U.S. Supreme Court said that if it’s a really tough law, it’s unconstitutional.

Do you have much hope that things will change and ballot access will be reformed in this country?

Oh yes. Things are slowly getting better. They were getting better at a very brisk clip in the 1990s. Legislatures were making good changes to the laws. We’ve had some successes in the 2000s, too, but it’s really slowed up.

Is there a particular group that is filing these court cases? Is there a unified ballot access movement?

Yes, it’s pretty loose, but it’s called the Coalition for Free and Open Elections, or COFOE for short. [Find their website here] It’s existed since 1985 and it’s basically a coalition of nationwide minor parties.

What about on the federal level? Why don’t we have uniform rules nationwide?

Congressman John Conyers of Detroit, Michigan introduced a bill to outlaw restrictive ballot access laws in federal elections … at its peak, it got 40 cosponsors in 1990.

It didn’t pass?

No. [laughs] If it had passed you’d know it. That would be a revolution … The bill has been introduced by three different members of Congress. In 1998, Ron Paul actually got a vote on the House floor. But it only got 60 or so votes.