Fair is Fair for Everyone!

by Harry Kresky

The Supreme Court settled the issue of who our president is. But it left unsettled some important questions about how our elections should be fairly conducted.

Third-party candidates and their supporters have been raising issues of fairness for years. For us the question is: How can an electoral framework that treats us like second-class citizens be reconciled with the ideals set forth in the Declaration of Independence and the Constitution? A game in which the rules are rigged so that one of the same two teams wins every time is not fair.

Some progress was made this year in our battle for fairness, although it wasn't discussed on "Larry King Live." The U.S. Court of Appeals for the Second Circuit struck down a New York Law that severely limited the capacity of candidates of smaller parties to collect the petition signatures needed to appear on the ballot.

A number of candidates, political parties and third-party activists went to court to gain access to the presidential debates. None of them succeeded. But for the first time, in every case, the court found the plaintiffs had standing to sue. "Standing" means that you have a sufficient interest in the outcome of the litigation to be permitted to go to court. In electoral politics, courts have uniformly ruled that a voter does not have standing to challenge unfair laws and regulations unless he or she can demonstrate that the laws actually prevent the casting of a vote for the candidate of his or her choice. Whether the rules and regulations made it impossible for that candidate to win or significantly affected the process was not something the voter was permitted to question in a lawsuit.

Regarding presidential debates, standing had in the past been denied not only to voters who wanted to see a particular candidate included in the debates, but to the excluded candidates and the parties they represented. The rationale was that even if a particular debate sponsor could be shown to have acted illegally in excluding them, that sponsor could simply not hold a debate at all and, therefore, winning the lawsuit did not mean gaining access to the debate.

But in Boston, the U.S. Court of Appeals ruled that Ralph Nader had standing. And in New York, a judge ruled that Cathy Stewart, the Manhattan chairwoman of the Independence Party, had standing because her efforts to build the Independence Party were impeded by regulations that prevented debate access by its candidates.

To a large extent we have had to fight these battles with one hand tied behind our back. The U.S. Supreme Court has examined the laws and regulations governing elections from the vantage point of the First Amendment guarantee of freedom of speech and association. The court has asked whether a particular law imposes an "undue" burden on these rights. It has not, however, applied the test of the 14th amendment: Does the double standard (for Democrats and Republicans vs. minor parties) violate the guarantee of equal protection of the laws? Perhaps this is because to ask the question would be to answer it.

Yet the Supreme Court's decision resolving the Florida battle in favor of George W. Bush was based on equal protection, with the majority stating: "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.

Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another. It must be remembered that the 'right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting free exercise of the franchise.'"

Here in New York, the Green and Independence parties have joined forces in a lawsuit in federal court that challenges two-party domination of the Empire State's electoral apparatus. In each county the Commissioners of Elections are, by design, Democrats and Republicans. The people who run the polling places on election day are chosen by local Democratic and Republican party officials and paid for their services by local governments. In primaries you must declare your party affiliation before voting. Poll workers have regularly told these voters that there is no such thing as a Green or Independence Party primary.

Surely this reflects a lack of training. But there is a deeper problem that the lawsuit raises. Can you have an election that is fair to all voters when it is run by partisan major-party operatives? We think the right to equal protection of independent and third-party voters shouldn't be systematically violated.



Harry Kresky is a member of the Independence Party's Executive Committee.

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Go to Harry's other essay: "Campaign Finance Reform and the Major Parties"

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