It is difficult to argue with the proposition that folks with power are, to say the least, reluctant to part with it. In our great American experiment, political power resides primarily in the ballot box. People often forget that those who created our system of ordered liberty at first restricted access to the ballot box to only white males who owned property. Eligibility to vote was eventually expanded and today no one seriously questions the proposition that all adults have the right to vote.
Of course, this expansion of eligibility to the ballot box was accompanied with obstacles to actually exercising that right through such shameful methods as literacy tests, arcane registration requirements, and outright intimidation. But that fight too has pretty much come to its final resting place and thanks to such things as the voting rights act and the motor voter law, today the folks in power have very little chance of preventing someone from voting.
As more and more Americans become dissatisfied with . . . the two main political parties, . . . the powers that be are utilizing the last real area under their control: they decide who and what gets on the ballot.
So what are the Republicrats/Democans to do? As more and more Americans become dissatisfied with the national party line of the two main political parties, and more and more third parties are appearing, the powers that be are utilizing the last real area under their control: they decide who and what gets on the ballot.
I and my good friend Guy Chichester of the New Hampshire Greens personally experienced this control of the ballot during the New Hampshire gubernatorial elections of 1990. I relay this story to the rest of you in hopes that you will learn from our experiences and that, in the long run, you will help make access to the ballot at least as easy as access to the ballot box.
In New Hampshire, a new political party seeking to be officially recognized and have a its own listing on the general election ballot can do so only if its nominee for governor received 3% or greater of the vote in the previous general election. To get your nominee on the ballot in the first place requires the submission of "nomination papers." Such papers shall "be signed by such persons only as are qualified to vote at the state general election." Each nomination paper must then be submitted "to the supervisors of the checklist of the town or ward in which the signer is. . .registered" five weeks before the election so that these "supervisors" can certify to the secretary of state whether the person who signed was, in fact, a registered voter. This is supposed to occur at least four weeks prior to the election. The papers must then be actually filed with the secretary of state three weeks prior to the election. Most states in America have similar kinds of legislation.
Well, I may have been a young lawyer, but I immediately realized that these requirements were full of potential traps. How we got stuck in one of those traps, and how we ultimately tried and failed to get out, is exhibit one in the argument that the future of the fight for greater political empowerment will be over access to placement on the ballot.
First the Greens had to deal with the Secretary of State, a nice fellow by the name of Bill Gardner. Throughout the initial process of collecting the signatures and presenting them to the "supervisors" Mr. Gardner seemed quite helpful: advising the Greens regarding the form of the papers, making sure they were aware of the deadlines and providing other little helpful hints about the process.
The trap lay in the dichotomy between the time frame contemplated and the words "shall certify whether or not the signer is a legal voter in said town or ward." What happened to the Greens in 1990 was that after collecting approximately 2,000 signatures from each of the two districts, after timely submitting them to each of the numerous towns and wards involved, despite the law, many of these "supervisors" failed to do their certifications on the fourth week prior to the election. The Secretary of State, however, kindly agreed to extend the deadline for filing with his office. When all was said and done, approximately three weeks before the election, the various "supervisors of the checklist" had ultimately disqualified over 1,400 of the 4,000 total petitions, a 35% reduction, wiping out the otherwise safe 25% redundancy. The Greens, therefore, would not be on the ballot.
What really hurt, however, was that once informed of this, the Greens did some "supervising of the voter checklist" themselves and found that, lo and behold, people who were not certified were swearing that they had been resident legal voters for years and were astonished that they were not so recognized by the "supervisors." Many of these people, as luck would have it, were neighbors of Green Party activists, and there was no question that they were telling the truth. Upon finding this out, the Greens turned to me and we reviewed their legal options.
The moral of this story is clear: no matter how nice and helpful the authority figures seem to be, never doubt that they will take every opportunity to protect their interests.
As usual in areas of election law that purport to allow challenges to the two party system, the legal options were few: we could sue in Court (under general Constitutional principles of Due Process) or we could initiate a challenge with the New Hampshire Ballot Law Commission.
After doing some legal research I realized that the existence of the Ballot Law Commission, along with the tight time frame we had before the ballots were printed, would almost for certain prevent us from being successful. In a Court, the judge would allow the lawsuit to go forward and decide the issue for future elections (we all know how slow courts are, don't we?), but would not issue an emergency injunction as long as there was the opportunity to raise the issue before the commission.
So, off to the Ballot Law Commission we went. I drafted a petition detailing our concerns, explicitly referring to our information that the "supervisors" had made numerous errors in their rejection of our nomination papers. I was notified shortly thereafter that we would be given a hearing before the full commission. Strategically, that hearing was scheduled for a Friday approximately five days before the ballots were to be printed.
The hearing in front of the Ballot Law Commission was my first real experience in dealing with the group of power brokers in New Hampshire I like to refer to as "good old boys." The commission was named, no lie, Mr. Bigg. In this progressive modern era the good old boys know that the key to their survival is in keeping from the public the truth of just how much they do, in fact, continue to control. They do this, just as they first prevented voting eligibility and then voting access, through obfuscation and complex regulations.
I wish I had a transcript of that hearing as the slow development of a classic catch-22 situation was an intellectual beauty. The hearing began with my presentation of the issue. Mr. Bigg appeared concerned, asking me if I had proof that the checklist supervisors had made errors. Luckily, a handful of the disqualified voters were personally known to some of the Green activists and had given statements to me directly. "Yes," I answered, "we had proof of mistakes." Then the web began to be spun. "How many?" I was asked.
"Several" I replied.
"Well," I was told "that's very disconcerting. . .however by the numbers supplied by the Secretary of State the Greens are over 500 nomination papers short. . .do you have evidence of over 500 mistakes?"
That was when I knew we were had. The whole problem with the checklist supervisors had only become known a week or so before the hearing. The evidence we had was irrefutable but anecdotal. There simply had not been enough time to investigate all the disqualified papers.
Having spent most of my professional life engaged in criminal defense, I was quite used to fighting hopeless cases. So I continued with a different argument: even though I do not have the evidence today to establish enough valid signatures, I certainly have enough evidence to show that the issue is a legitimate one. I therefore demanded the opportunity to review all the papers disqualified and come back with evidence of enough mistakes to justify placing Mr. Chichester on the ballot.
That argument did trouble them for a few moments. After a huddled conference followed by a closed door session of the committee, they returned and to my surprise agreed with me! They gave us until Tuesday of the following week to double check the actual voter registration of approximately 1400 people.
"Tuesday?" I responded incredulously. There was no way we could check that many people by Tuesday.
"Tuesday" they said. The ballots have to be printed by Wednesday.
I ended my presentation by stating that there was no need to schedule a Tuesday hearing, we would accept not being on the ballot this time around. I then implored the committee to review this process, and issue a formal opinion concerning the adoption of methods that could double-check the checklist supervisors in a timely fashion so that this situation would not happen in the future, I think they sensed my submission to the powers that be at that point and agreed, full of pity and seriousness, to study the matter and issue such an opinion. Of course to this day I have never seen such a document.
The moral of this story is clear: no matter how nice and helpful the authority figures seem to be, never doubt that they will take every opportunity to protect their interests. And, as a practical matter, when getting nomination papers, don't just get a few extra numbers, get lots. And keep good records of the people who sign. And get everything done early so as to allow sufficient time to make challenges. Of course, that involves a lot of extra work, but nobody ever said breaking into the turf of the two national parties would be easy.
One final note, Mr. Chichester and I did get our revenge: a few years later, despite intense political pressure, a jury of his peers acquitted him of the charge of criminal mischief for cutting down a Seabrook station siren pole as an act of political protest. Just as my efforts before the ballot commission were one of the times in my career that made me most cynical of the system, being Guy's lawyer on the day he was acquitted was the greatest example in my career of the system actually producing a just result.