A Second Look at Third Parties: Correcting the Supreme Court's Understanding of Elections

Abstract

This Article presents a comprehensive overview of the Supreme Court's ballot-access jurisprudence as it relates to minor political parties, and challenges the conventional "structuralist" view that ascribes shortcomings in the Court's approach to the doctrinal constraints of an individual-rights-based analysis. Structuralist critics correctly observe that the Supreme Court's ballot-access rulings almost always disfavor minor parties and protect the two dominant parties. Because these decisions appear to rely on an unduly narrow understanding of the expressive value of voting and on a misunderstanding of the role played by minor political parties within the context of a predominantly two-party system, scholars have proposed a number of alternative frameworks to guide the Court's inquiry. However, if the problem is indeed one of the Justices' faulty background assumptions about the political process, it is unlikely to be solved by the wording of any particular test, structuralist or otherwise. This Article attempts to demonstrate that a willing court could easily apply the conventional balancing test in Anderson v. Celebrezze in a manner that would encompass most of the inquiries necessary for a more accurate weighing of the interests at stake. The difficult task suggested, though barely attempted, here is to persuade judges to re-examine their assumptions to the extent that they conflict with contemporary scholarly understandings of the electoral process.

Keywords: Political parties, minor parties, ballot-access, elections, supreme court