Oklahoma law requires that presidential candidates of “new parties” obtain the valid signatures of registered voters equal to five percent of the of the total vote cast for President or Governor in the previous general election. Based on the 2006 General election that means about 46,000 valid signatures for the 2008 general election. But course, not all signatures will be valid for various reasons. Therefore, additional signatures must always be gathered to provide a cushion against disqualified signatures. The rule of thumb is to obtain at least fifteen percent more than the minimum. In this case that means at least 52,000 signatures and 54,000 is better to virtually guarantee 46,000 valid signatures of currently registered voters.
So let’s assume any party needs 54,000 signatures. How many registered voters are there in Oklahoma? ... The densest concentration of voters are in the major metropolitan areas: Oklahoma City, Tulsa, and Lawton. These three cities are where it is most efficient - lowest in costs - to obtain signatures. How many registered voters are in Oklahoma, Tulsa, and Comanche counties? ... This means that 80 to 90 percent of petitioners efforts must be focused in those three counties. This would appear to be advantageous for petitioners. But what about the people in the rest of the state?
Do voters in the metropolitan areas differ in the political attitudes from those in more rural areas? How do these differences affect the costs of obtaining signatures? If it is significantly more costly for petitioners to obtain signatures in rural areas than in metropolitan areas, or vice versa, then the effects of the ballot access law disadvantage one area over the other.
Let us be clear what the effect of ballot access restriction using petitioning for signatures accomplishes. It is what economists call an “in-kind” tax. A tax in-kind cannot be paid by simply writing a check. An in-kind tax typically involves performing some kind of labor or rendering up some commodity to the state. Petitioning for signatures to obtain permission for candidates to appear on the ballot is a tax (in-kind) to obtain a license to run for office. It is a tax in addition to any ordinary filing fees (taxes) which candidates must pay.
But it gets worse. Entrenchment is the term used to identify the use of state power to “dig in” or fortify certain groups in the government from peaceful, democratic challenge by other groups. The entrenched parties - Democratic and Republican - exempt themselves from the tax burden which they place on new competitors. They are exempt from petitioning. They get to simply pay filling fees with a guaranteed refund for almost every one of their candidates. Consequently they have legislated themselves a free ride on the ballot - a privilege status - an entrenchment.
However, even if one agrees that new parties deserve to be penalized for attempting to challenge the entrenched parties - because the petition only gets your candidate on the ballot - it doesn’t get any candidate any votes. The ballot petitioning tax violates one of the so-called canons of “fair” taxation. The idea embedded in the U.S. Constitution was that taxes should levied equally on all people. The idea was “No taxation without representation” and taxation proportionate to representation. The ballot petitioning tax is worse than taxation without representation, it is taxation on the opportunity to seek representation.
Nor is the tax on the opportunity to seek representation levied equally on all parties or all citizens. As indicated above, because it is an in-kind tax which cannot be paid with money (even though it necessitates money being spent to perform), the burden of the tax on opportunity does not fall equally on all citizens. Those citizens and voters living in less densely populated areas are taxed more for the opportunity to seek representation because the in-kind costs are higher for them than for persons in metropolitan areas, if for no other reason, the costs of travel to get where people can sign petitions are higher. It is obvious that gasoline cost more to day than it did in 1974 when this law took effect and even more than it did as recently as 2006. The political advantage for the Democratic and Republican politicians in office is that it makes rural legislators even more immune from competition than their metropolitan colleagues. That means rural voters have less opportunity than even metropolitan voters to throw a rascal out in either of the entrenched parties. Candidates who would run against an incumbent of their own party must run the gauntlet of the primary. Because of the way district boundaries are drawn by the legislators, many districts are “safe” for an incumbent indefinitely. That was one of the reasons why term-limits were enacted. But term-limits were only a partial remedy for the underlying inequity non-competitive ballots. Far, far too many incumbents have no opposition in either a primary or general election. Yet at the same time many public opinion polls indicate that citizens do not believe they are getting their money’s worth from the legislators. Sounds like a classic symptom of monopoly - an arbitrary supply of poor quality goods. That’s bad tax policy even if you approve of the penalty on new parties - unless you’re an incumbent politician in an entrenched party.
Suppose one is not concerned with ballot access restrictions as a tax on opportunity. It is interesting to note that many people adamantly support the idea of freedom of religion because they would not want to see their church suppressed by other sects. The policy adopted by the authors of the Constitution was open access - Congress shall make no law respecting the establishment of a religion, nor prohibiting the free exercise thereof. Perhaps the respect for this idea helps to explain why no one has to circulate a petition asking for permission to worship as they choose. The same First Amendment that proclaims freedom of religion also proclaims freedom of speech and association and the right to petition for a redress of grievances. A redress of grievances is most effectively done today through a political party putting candidates on the ballot for election to public office. It is difficult to see why open access for religious diversity has worked so well, but open access for political diversity cannot be allowed. Unless, one concludes that what we really have is an establishment of political doctrine settled in two sects. Of course, if an established state church could tax and suppress it’s competitors like our politicians’ do, then we could advance our society to resemble the 1400s in Europe - wars and inquisitions. Let’s keep that from happening in our politics.
If one agrees that present ballot access restrictions are undesirable and against the spirit, if not the letter, of the Constitution, then are any ballot access restrictions justifiable?
One of the principal arguments of the entrenches is that voters - you - will be confused if there are “too many” candidates on the ballot. Of course, few, if any, of you are confused by the variety of churches in your neighborhood. But it is a real stretch to imagine that the United States would ever have as many political parties as there are religious sects. But even if there were, where’s the harm to you?
Another of the entrenches arguments is that the “two-party system” is uniquely a stroke of genius which makes our government more stable than foreign multi-party countries. This is an assertion of fact that can be verified within certain limits. The first limit is that we compare our apple against someone else’s apple. What other nation has a Constitution identical or nearly identical to ours, but has a multi-party system? That apple seems hard to find, so they substitute parliamentary oranges. OK. We may as well forget about any other hypothetical limits since the entrenches cannot clear the first hurdle of logic. But we won’t.
The U.S. Constitution does not predispose the government to entrenched “two-party” rule. In fact, persons from other parties have been elected to the U.S. House and Senate, as well as state legislatures, rather often - in the past. In the past two parties did indeed dominate the government, but they were not entrenched by the electoral system and they came and went. The present Democratic/Republican entrenchment has occurred only in the last eighty years or so. How and when it came about has been fairly well understood by historians and political scientists for some time. Why it came about is a matter of some controversy still- there are contending interpretations. I will burden you only with this author’s interpretation.
In my opinion, the tools of the present “two-party” entrenchment are, first, the arbitrary abuse of the principle of the secret ballot which was introduced at the end of the 19th century to remedy genuine election corruption. The government monopolized the production of ballots. In the century before individuals, candidates and parties printed and distributed the ballots for voters to use. This practice worked against privacy in voting and allowed vote-buying and intimidation of voters. It could have been remedied by simply requiring uniformity in the ballots produced by candidates and parties. Why was there a complete government takeover?
Printing and distributing ballots was a cost that had been voluntarily born by private individuals, they invented the mass production of ballots in the first place. The costs were acceptable because few people believed the costs should not be a burden on those taxpayers - who may not vote for any of the candidates in a given election or any election. In other words, printing ballots was a normal cost of campaigning born by candidates. It was a proportionate, voluntary “tax”. Ballots were produced by parties for their candidates - where and as needed. The government takeover of the ballot industry had significant advantages for the largest political parties - subsidy and control of access. They were able to shift the costs of ballot production and marketing on to the general population. But more important was their claim that economy in costs required that mere “expressive” voting for candidates deemed unlikely to win was now a costly and unjust “subsidy” to such candidates - candidates which are “frivolous” and the voters no longer had any need to consider. So the ballot produced by the government must be short on candidates and frugal for the taxpayers. This was described as a policy of impartiality. Cute, eh? The need for ballot uniformity was used as a pretext to enforce control of access to the ballot itself. Entrenchment? Yes.
For some time, other parties continued to stagger on. In time some simply died a natural death, as their single-issue fervor was absorbed by the fattening “major” parties. The more doctrinaire parties continued on until swamped by anti-immigrant and pro-imperialist propaganda by the “major” parties. Some parties simply gave up or were suffocated in their cribs. Potential candidates, no matter what their own convictions, realized that there were only one game with two teams to play on. So controversy was largely moved from the general election campaign to the party primary elections or further hidden inside party councils. After a century of this arrangement candidates today campaign mainly on personality and personal scandal and attacking and defending the presidential candidates of the “major” parties. Some candidates have as their platform simply that they are for or against the President. Cute, eh? Another symptom of entrenchment. No candidate independence or originality and damn paltry representation. Political entrenchment has an irresistible momentum toward dictatorship. This momentum was not totally unforeseen by the Founders of the Republic. The Jeffersonians advised “rotation in office” to prevent entrenchment. It took nearly a century to overcome their advice and rig the entrenchment of two particular parties into one nearly impregnable coalition.
Today, we have an almost perfect black hole of entrenchment. All power flows to the center. As wise as we would like to believe they were the Founders and authors of the Constitution did not and could not anticipate the consequences of the flaws they placed in their document. And I say “their” document deliberately. The alleged Constitution of today is the one which the two entrenched party elites want. They “interpret” it to mean whatever is expedient for them. It has now reached the point of mindlessness. Consider the decision of the Oklahoma Supreme Court in 2007 to refuse to hear a case for more open ballot access brought by the Libertarian Party from 2004. Note that opening the ballot to wider access for other parties would gain no particular advantage for the Libertarians over any other “minor” party. The sole effect of more open ballot access would be to restore to voters the power they once possessed to control the government. The voters could accept or reject any candidates of any parties. Instead of “splitting their ticket” just one way or the other between the entrenched parties, voter could “split their ticket” six ways to Sunday if the wished. In fact, in earlier times when ballot access was far more open, it was unusual for more than five parties’ candidates to appear on the ballot and then only for a few select offices. The ballots were never “a mile long” as the entrenches charge would happen.
It all comes down to this: The entrenched parties lie to stay in power - they even lie to themselves. Someone will always believe what they say and vote for them. But your right to say “NO!” is not a privilege which they may allow or not as they please. If you want to say “yes” that’s your business, but if you have ever just once wished you had another choice on the ballot in an election, then you should understand why you didn’t see it. Not voting is a valid protest against our rigged system of elections, but it is a weak form of protest. A stronger form of protest is to support open ballot access for all candidates, so you can sort them out for yourself on election day. That’s not an exclusively Libertarian position, the Green Party, the Constitution Party, and other parties now unknown support that position. We must or we will be politically exterminated - figuratively speaking - for now.
What can you do to open up the system? First, sign any petition to put a party on the ballot and sign any petition that asks for open ballot access. Second, penalize the entrenches by any peaceful means you can. Don’t give them any campaign donations, don’t vote for them. Ridicule them, shun them and make them the butt of your jokes. Third, stop rubber stamping judges for retention on the ballot. Vote against retention for all Justices of the Oklahoma Supreme Court. That is what your ballot is for, use it. That message will be heard. Tell people to vote against the Justices and explain how the Oklahoma Supreme Court is bulldozing anyone who is trying to challenge the entrenches. This is a fundamental issue not a narrow case with equal merits on both sides. The Court has failed to uphold the “free and equal” provision for elections in the Oklahoma Constitution and sought cover themselves behind the U.S. Supreme Court’s maximum limit for restrictions. The Oklahoma State Supreme Court is the core bastion of the two-party entrenchment in Oklahoma. They serve political ends and they must suffer political consequences.
All other states are far less restrictive than Oklahoma and the Oklahoma’s Supreme Court has the discretion to measure the law against the state’s own “free and equal” provision. You, the voter’s have the discretion to remove them from office for that lack of due diligence and prejudicial partiality to entrenched partisan interests. No “free ride” for judges; no entrenched parties.
Here's the list:
JUSTICES OF THE SUPREME COURT OF OKLAHOMA
District 1 - Robert E. Lavender, Claremore
District 2 - Steven W. Taylor, McAlester
District 3 - Marian P. Opala, Oklahoma City
District 4 - Yvonne Kauger, Colony
District 5 - James R. Winchester, Chickasha
District 6 - Tom Colbert, Tulsa
District 7 - James E. Edmondson, Muskogee
District 8 - Rudolph Hargrave, Wewoka
District 9 - Joseph M. Watt, Altus