Saturday, April 30, 2016

Can "Sore Loser" laws prevent Bernie Sanders from running as an Independent?

Among the world's democracies, the United States has by far the worst ballot access situation. Each state writes its own ballot access laws, even for federal office. Sometimes these laws clearly are intentionally written to force one- or two-party domination. Since there is no single standard for the whole nation, the public and even the media are generally ignorant about ballot access laws.

Georgia in 1943 required new party and independent candidates to submit a petition signed by 5% of the number of registered voters in order to get on the ballot for any office! Previously, any party could get on the ballot just by requesting it. (And all petition signers are subject to subpoena to determine if they actually signed.) Result: since 1943, zero third-party candidates have ever managed even to get on the ballot for a Georgia U.S. House of Representatives seat (in about 800 races total).
The ballot access laws for third parties and independent candidates have been very severe since 1931. Since then only two third party candidates for the U.S. House of Representatives and only one for the U.S. Senate have managed to get on the ballot. (And there has been no third party or independent candidate on the ballot for Governor of Florida since 1920.) As of 2005, a filing fee of 7% of the annual salary of the office is also required unless the candidate is a pauper, while a third party or independent candidate for any statewide office (other than US president) needs 196,255 valid signatures – beyond what any independent candidate in any state in the USA has ever obtained.
To run for Texas Governor as an Independent in 2006, Richard S. "Kinky" Friedman had to acquire 45000 signatures in a short time, all of them notarized. He accomplished that, but found it almost impossible and claims it had never been done before.
New parties, to get on ballot, require by 1971 law a petition signed by a number of voters exceeding 7% of the last vote cast. A court held that unconstitutional in 1977, so they changed it to 3%. Also, the petition must be completed in four months during the odd year before an election year. No political party has ever succeeded in getting on the Arkansas ballot, under either rule.
West Virginia:
This one is an elegant "catch-22." Third party and independent candidates for office (other than US president) must circulate their petition before the primary. It is a crime for any petition circulator to approach anyone without saying "If you sign my petition, you cannot vote in the primary." Furthermore, it is impossible for third party or independent candidates (not running for US president) to ever know in advance if they have enough valid signatures because if anyone who signs a candidate's petition then votes in a primary, the signature of that person is invalid. For candidates, it is impossible to know who will actually vote in the primary, and it is too late to get signatures after the primary. Also: petition circulators cannot leave their home precinct.
1961 law requires petition to be completed within a 2-week period.
1941 law requires all petition signers to be published in one newspaper in each county in the state, by the collector of the petitions.
Richard Winger of Ballot Access News says, "Massachusetts ballot access procedures for members of small qualified parties to get on their own party's primary ballot are a disgrace, the worst in the nation. They are so bad, they even injure Republicans in MA. In 2008, out of the 10 U.S. House races in MA, there was no Republican in six of them."

"Sore loser laws" designed to foster major-party rule and prevent dissent

In 2006, nationwide attention was focused on the Democratic Party primary for the Connecticut senate race. Newcomer Ned Lamont beat out incumbent senator Joe Lieberman. Lieberman then decided to continue to run as an independent, leading to a 3-way race between Lamont (D), Lieberman (I) and Alan Schlesinger (R). This made it a "spoiler" scenario likely in which Lieberman and Lamont would split the vote allowing the Republican Schlesinger (who was less popular than either and had been involved in big money gambling under the fake name "Alan Gold," causing State GOP Chair George Gallo to moan – quoted in the Hartford Courant – "Our mistake is that we only vetted candidates using their real names, not aliases"; the Courant further reported that Schlesinger had been sued twice by casinos to collect unpaid gambling debt) to win.

Actually, after all the top Republicans in sight endorsed Lieberman and abandoned Schlesinger, it became pretty much a 2-man race between L & L.

Lost in the furor surrounding this – which the US press kept remarkably silent about – was the fact that in most of America Lieberman would not even have had the option of pressing on as an independent. According to Richard Winger in Ballot Access news, 46 states have either explicit "sore loser laws" or simultaneous filing deadlines making a post-primary shift impossible for any candidate other than a presidential one. Only Connecticut, Iowa, New York and Vermont allow such a loophole for "sore losers." The previous 2 sentences were quoted from Troy Schneider's New York Times op-ed 16 July 2006. And in 11 states it is not permitted for anybody who is (or recently was) a member of a political party, to run independent for any seat!

These laws are of course specifically designed to safeguard the two major parties from those annoying "spoiler scenarios" of precisely this sort. But – is that fair and democratic? Lieberman, according to polls conducted in the very same week as his primary defeat, actually had more support Connecticut-wide, than either Lamont or Schlesinger! Later note: and he won the election! (But did he then propose liberalization of ballot-access laws? Not quite.) But under this sort of law, just because it was convenient for party leaders to brand Lieberman a "sore loser," the most popular choice of the voters would actually be prevented from running! This is the most undemocratic possible outrage!

Now there is a simple way that Connecticut could now solve this "problem" while in fact increasing democracy – adopt range voting, in which the "spoiler" phenomenon and "vote-splitting" both do not exist. Would the "Democratic" party (which controlled both CT state houses, although not the governorship) try to do that, or would they try to abolish democracy by ramming through a "sore loser law" for Connecticut?

The answer soon came. (Elected Democratic) Connecticut Secretary of State Susan Bysiewicz swam into this cesspit by proposing to the CT legislature a new law which would make it illegal for anybody who lost a primary, from then being an independent candidate. Read more about Susan Bysiewicz as a member of the club of the US states' maximally biased election supervisors, such as Katherine Harris in Florida 2000 and J.Kenneth Blackwell in Ohio 2004.

One-party domination via Ballot Access restrictions

Suppose one of the two major parties in a state gets weak. The other party then passes a highly restrictive ballot access law. That means the weak party will be able to get on ballot in comparatively few races. That means it will get weaker and the strong party stronger. Pretty soon we have pretty complete one-party domination.

Think it can't happen? Florida 1936: The Republican party failed to get 30% of the vote for a statewide office (this was the era of Democratic one-party domination of the South) therefore by Florida law was no longer a "political party." Furthermore, the only way a political party could get on the Florida ballot at that point was to get at least 30% of the vote – which was always still theoretically possible because Florida permitted "write in" candidates on ballots so that any voter could vote for anybody in any race. This of course was too ridiculous even for Florida so they in 1937 lowered the 30% bar to 15%.

In Louisiana, nearly all voters were registered Democrat (it was pointless to be anything else since the Democrats always won, therefore to have any voting power whatever you needed to register Democrat so you could vote in their primary, which effectively was the real election). That prevented La Follette from getting on ballot in 1924 because by law the signers of his petition had to be entirely nonmembers of any other party.

Today, approximately one third of all state-house elections are unopposed one-candidate races.

Q. Would anything horrible happen if we just let anybody get on any ballot just by asking?

A1. Not necessarily. Arkansas had exactly that policy up to 1997. The most US Presidential candidates Arkansas ever had on ballot was 13 (in 1996).

A2. But possibly. The 2003 California Governor-recall race won by Schwarzennegger had minimal requirements to get on ballot – and 135 people ran.

So we conclude that some requirements are necessary to stop there from being ridiculously high numbers of contenders. But not much.

In all US history since the age of preprinted ballots began (about 1890) up to 2005, there have only been two cases where a ballot for some statewide office (or US presidential race) has ever had more than 10 candidates on it, provided at least 2500 signatures were required to get on ballot (and even in those cases, there were ≤12 candidates). See Richard Winger's paper for details.

These ballot access facts mainly are extracted from issues of Ballot Access news.

Papers and books related to Range Voting

(Also includes "Approval Voting," the special case of range voting when only max/min votes are allowed; and voting fraud and democracy failure generally)

  1. Amy, D.: Real Choices/New Voices: The Case for Proportional Representation Elections in the United States, Columbia Univ. Press, New York, 1993.
  2. Bailey, Martin J. (with editing by Nicolaus Tideman): Constitution for a future country, Palgrave 2001.
  3. M.L. Balinski & H. Peyton Young: Fair Representation: Meeting the Ideal of One Person, One Vote (2nd edition), Brookings Institution Press 2001. Young also wrote a more accessible essay summarizing his thoughts for the layman.
  4. Robert J. Barro: Determinants of Economic Growth: A Cross-Country Empirical Study, MIT Press, Cambridge MA 1997, ISBN=0-262-02421-7.
  5. Bordley, Robert F.: A pragmatic method for evaluating election schemes through simulation, Amer. Polit. Sci. Rev. 77 (1983) 123-141.
  6. Brams, Steven J. & Fishburn, Peter C.: Approval Voting, Birkhauser, Boston 1983.
  7. Brams, Steven J. & Fishburn, Peter C.: Going from Theory to Practice:The Mixed Success of Approval Voting [Downloadable!]
  8. Brams, Steven J. & Fishburn, Peter C.: Approval Voting in Scientific and Engineering Societies, Group Decision and Negotiation 1 (April 1992) 44-55. [Downloadable!]
  9. Brams, Steven J. & Hansen, M.W., and Orrison, M.E.: Dead Heat: The 2006 Public Choice Society Election, to appear in Public Choice 2006-2007. [Downloadable!]
  10. Campbell, Donald E. & Kelly, Jerry S.: A strategy-proofness characterization of majority rule, Economic Theory 22 (2003) 557-568. [Downloadable!]
  11. Campbell, Tracy: Deliver the Vote A history of election fraud, an American Political tradition – 1742-2004 Carroll & Graf NY 2005. ISBN=0-7867-1591-X.
  12. Caro, Robert A.: Means of Ascent (The Years of Lyndon Johnson, Volume 2), Alfred A. Knopf; Vintage (reprint edition 1991).
  13. deHaven-Smith, Lance: The Battle for Florida: An Annotated Compendium Of Materials From The 2000 Presidential Election, University Press of Florida (June 2005), ISBN=0813028191.
  14. Klaus Deininger & Lyn Squire: New ways of looking at old issues: inequality and growth, J. Development Economics 57,2 (1998) 259-287. There is also a "layman's summary."
  15. Feinberg, Barbara Silberdick: American Political Scandals, Franklin Watts 1992.
  16. Peter C Fishburn & William V Gehrlein: An analysis of simple two-stage voting systems, Behavioral Science 21,1 (January 1976) 1-12.
  17. Gumbel, Andrew: Steal This Vote: Dirty Elections and the Rotten History of Democracy in America, Nation Books 2005, ISBN=1560256761. (If your computer has speakers, you can listen to this RadioNation podcast of Gumbel discussing the contents of his book:
  18. Hain, Peter: Proportional MISrepresentation, The case against PR in Britain, Wildwood House 1986.
  19. Phillips, Richard Hayes: Witness to a Crime: A Citizen's Audit of an American Election, Kent State University Press will release it in spring 2007.
  20. Hillinger, Claude, 2005. "The Case for Utilitarian Voting," Discussion Papers in Economics 653, University of Munich, Department of Economics. [Downloadable!]
  21. Hillinger, Claude, 2004. "On The Possibility Of Democracy And Rational Collective Choice," Discussion Papers in Economics 429, University of Munich, Department of Economics. [Downloadable!]
  22. Hillinger, Claude, 2004. "Voting and the Cardinal Aggregation of Judgments," Discussion Papers in Economics 353, University of Munich, Department of Economics. [Downloadable!]
  23. Hillinger, Claude, 2004. "Utilitarian Collective Choice and Voting," Discussion Papers in Economics 473, University of Munich, Department of Economics. [Downloadable!]
  24. Hillinger, C, 1969. "The Measurement of Utility," Review of Economic Studies, Blackwell Publishing, vol. 36(105), pages 111-16.
  25. E.V.Huntington: The Apportionment of Representatives in Congress, (pdf) Transactions Amer. Math'l. Soc. 30,1 (Jan 1928) 85-110. [Downloadable!]
  26. Johnson, Paul E.: Voting Systems (pdf). [Downloadable!]
  27. Katz, Richard S.: A theory of parties and electoral systems, Johns Hopkins Univ. Press 1980.
  28. Kennedy, Robert F. Jr.: Was the 2004 Election Stolen?, Rolling Stone Magazine, 1 June 2006. Prof. Dan Tokaji's detailed response to the Kennedy piece
  29. Kolesar, Robert J.: Communism, Race, and the Defeat of Proportional Representation in Cold War America, New England Historical Association Conference (Amherst College, Massachusetts, 20 April, 1996). [Downloadable!]
  30. Lakeman, Enid, & Lambert, James D: Voting in Democracies, Faber & Faber, London 1955 and 1959.
  31. Laslier, Jean-Francois & Karine Vander Straeten: Approval Voting: An Experiment during the French 2002 Presidential Election. That as an English-language abbreviated version. The full French-language version is #2003-007 here. [Downloadable!]
  32. Levin, J. & Nalebuff, B.: An introduction to vote-counting schemes, Journal of Economic Perspectives, 9, 1 (1995) 3-26.
  33. Lines, Marji: Approval voting and strategic analysis, a Venetian example, Theory & Decision 20,2 (1986) 155-172.
  34. Merrill, Samuel: Making multicandidate elections more democratic, Princeton Univ. Press 1988.
  35. Miller, Mark Crispin: None Dare Call It Stolen – Ohio, the election, and America's servile press, Harpers Magazine (August 2005). This article is available online. [Downloadable!]
  36. Nurmi, Hannu J.: Comparing Voting Systems, Kluwer 1987.
  37. Nurmi, Hannu J.: Voting paradoxes and how to deal with them, Springer 1999.
  38. Overton, Spencer: Stealing Democracy, the new politics of voter suppression, W.W. Norton 2006.
  39. Palast, Greg: The Best Democracy Money Can Buy: The Truth About Corporate Cons, Globalization and High-Finance Fraudsters Penguin 2003. (Paperback best seller by superb investigative reporter. Highly educational and myth-busting.) ISBN=1841197149.
  40. Perkins, John: Confessions of an economic hit man, Berrett-Koehler Publishers, ISBN=1576753018
  41. Poundstone, William: Gaming the Vote, Hill & Wang 2008. "Not a review"
  42. Prados, John: Presidents' secret wars, William Morrow NY 1988.
  43. Reilly, Benjamin: Social Choice in the South Seas: Electoral Innovation and the Borda Count in the Pacific Island Countries, International Political Science Review 23,4 (Oct. 2002) 355-372. [Downloadable!]
  44. Simmons, Matthew R.: Twilight in the Desert: The Coming Saudi Oil Shock and the World Economy, J.Wiley 2005.
  45. Smith, Warren D.: Range Voting, #56 here. (There are plans to revise this paper...) [Downloadable!]
  46. Smith, Warren D.: Voting schemes based on candidate-orderings or discrete choices regarded as harmful, #59 here. [Downloadable!]
  47. Smith, Warren D.: Candidate incentives under different voting systems, and the self-reinforcing deterioration of US democracy, #76 here. [Downloadable!]
  48. Smith, Warren D.: Reweighted range voting -- new multiwinner voting method, #78 here. [Downloadable!]
  49. Smith, Warren D.: The voting impossibilities of Arrow and of Gibbard & Satterthwaite, #79 here. [Downloadable!]
  50. Smith, Warren D., Quintal, Jacqueline N., Greene, Douglas S.: What if the 2004 US presidential election had been held using Range or Approval voting?, #82 here. [Downloadable!]
  51. Straffin, Philip D.: Topics in the Theory of Voting, Boston Birkhauser 1980.
  52. Tavits, Margit: The size of government in majoritarian and consensus democracies, Comparative Political Studies 37,3 (April 2004) 340-359.
  53. Tideman, Nicolaus: Collective Decisions and Voting: The Potential for Public Choice, Ashgate 2006, ISBN=0 7546 4717 X. Advertising flyer (pdf), Table of contents (pdf), Preface (pdf), Index (pdf). BOOK REVIEW by us.
  54. Tatu Vanhanen (with contributions by other authors): Prospects of democracy, a study of 172 countries, Routledge, London & NY 1997.
  55. Tatu Vanhanen: Democratization: a comparative analysis of 170 countries Routledge (Research in comparative politics #7) London & NY 2003.
  56. Tatu Vanhanen: The Emergence of Democracy: A comparative study of 119 states, 1850-1979 (Helsinki, 1984).
  57. Weber, Robert J.: Approval voting, Journal of Economic Perspectives 9, 1 (1995) 39-49. [Downloadable!]
  58. Winger, Richard: How many parties ought to be on ballot? Election Law Journal 5,2 (2006) 170-200.
  59. Woodall, Douglas R: Monotonocity of single-seat preferential election rules, Discrete Applied Maths 77 (1997) 81-98. [Downloadable!]
  60. Yergin, Daniel: The Prize: The Epic Quest for Oil, Money and Power, Simon & Schuster, NY 1991.

Other bibliographies

* Original source: Ridiculous USA Ballot Access Laws designed to discriminate against third parties


  1. Now #BernieSanders should run with #JillStein as VP in the #GreenParty in the general election. #RalphNader and #RobertReich can hold posts.

  2. Some states bar candidates who sought, but failed, to secure the nomination of a political party from running as independents in the general election. Ballot access expert Richard Winger has noted that, generally speaking, "sore loser laws have been construed not to apply to presidential primaries." In August 2015, Winger compiled a list of precedents supporting this interpretation. According to Winger, 45 states have sore loser laws on the books, but in 43 of these states the laws do not seem to apply to presidential candidates. Sore loser laws apply to presidential candidates in only two states: South Dakota and Texas. See the table below for further details.[1][2][3]

    1. So Bernie can run as an Indy if the superdelegates choose Clinton at the July convention??