Libertarians and other political third-parties will soon find out if fairness in federal courts extends to political third-parties, or is fairness confined to major party candidates. The answer will establish the degree of loyalty each branch of government has to political parties over the Constitution.

On the week of February 10, 2020 the U.S. Court of Appeals for the 11th Circuit, will hear argument in Jacobson v. Lee. This case is on appeal from a district court ruling that held unconstitutional a Florida statute that granted top ballot position to all candidates of the Governor’s political party. In Florida there has been a Republican Governor since 1998.

The Democrats argue that granting the top spot on all ballots to Republicans gives them an electoral advantage. Expert evidence at trial established that “… first listed candidates have gained an average electoral advantage of five percentage points due to ballot position.” Since Governor Scott was elected in 2010 by a 1.2% margin and in 2018 Governor DeSantis won with only a 0.4 % margin, ballot position determined the outcome of both races.

In down-ballot races, the effect gives a 3.1% to 5.6% advantage to top spot candidates.

In Jacobson, the lower court found the impact of ballot placement based on the outcome of the last Governor’s race to be a denial of equal protection and discriminatory because it selects ballot position based solely on party affiliation.

The lower court offers solutions; “… at least 29 states either “rotate” or “randomize” the order of candidate names in general elections … to neutralize the effects of position bias.” For example, Ohio requires candidate ballot position be “rotated from one precinct to another.” Hawaii requires candidates be in alphabetical order. Colorado arranges candidate ballot position by lot, however, it undercuts its neutrality by dividing the candidates into two groups: major party and minor party candidates.

Jacobson is important to every minor party. For decades minor parties have fought merely to secure ballot access. A few have gained access in many states, but usually not all states. Now, minor parties have evidence that ballot placement is a critical matter once ballot access is secured.

Rigging elections occurs in many ways, not just intimidation and fake news. Denying fair ballot position also manipulates votes. The impact of these discriminatory actions is to limit the votes received and the fundraising potential of minor parties, while denying attention to their ideas.

Many articles ago, I addressed the monopoly the two major parties have over our political system.

The two major parties manipulate election laws to ensure one of their loyalists almost always wins the election. Controlling who wins directly translates into what laws are enacted, which citizens or corporations receive subsidies, who is taxed more or taxed less, how commerce is regulated and who will judge us should we violate any command.

According to an article in the Daily Kos ,there are 519,682 elected officeholders in the United States. Of this total, the Libertarian Party, in 2017, claims 168 of these officeholders; the Green Party in 2016 held 143 offices, and the Constitution Party holds 12 offices. Many of these positions are non-partisan offices. There are also, at least 26 Independent office holders, including 2 U.S. Senators who caucus with the Democrats, and 26 Democratic Vermont Progressives. A basic calculation places the third-party competitors’ share of the political market at 0.0006754%; almost zero.

What makes the power of the major parties so baffling is that political parties are not mentioned in our Constitution. Political parties are merely groups of individuals who organize to control government. In fact, for the first several years of our Republic, there were no political parties. Moreover, the major parties maintain complete control of the political marketplace against the fact that 57% of Americans believe a third political party is needed, according to a Gallup poll.

Again, I ask: does judicial fairness apply to minor political parties?

It may not, but the ballot position cases offer clear evidence of discriminatory impact on minor parties and open up a new line of attack for minor parties to seek fairer elections and greater voter participation.

A November 1, 2019 report in Ballot Access News illustrates how discriminatory our electoral system is against minor parties. It found “[t]he U.S. Supreme Court has refused to hear every election law cert. petition presented by a minor party or independent candidate starting in 1992, unless the Republican Party or the Democratic Party was also a party to the same case.”

Action

Since Jacobson is only a dispute between the major parties, both having a great stake in the outcome, it is likely to be resolved by the Supreme Court. This gives the minor parties a chance to file Friends of the Courts briefs to educate the court on the plight of minor parties in ballot cases and the impact of discrimination on the voice of voters.

Party affiliation should not guarantee a 3.1% to 5.6% vote advantage to the two major parties; they have legislated themselves too many electoral advantages. Elections are for citizens to elect their representatives, not for political parties to control the nation.