The 2016 presidential primary race is just four months in, and already the Republican Party is worrying about once again shooting itself in the foot. There is, of course, reasonable cause for concern: Their frontrunner is the xenophobic, filterless Donald Trump, a candidate who began his campaign on the premise that Mexican immigrants are rapists, and followed it up by saying Arizona Senator John McCain was not a war hero because he was captured by the enemy during Vietnam.
Trump has made so many absurd remarks over his candidacy that maybe the most important one went largely under the radar. During a speech from the United States-Mexican border in mid-July, Trump criticized the Republican National Committee of not treating him "fair," and threatened to run as a political independent for president, should such malarky continue.
If Trump comes through on his threat (a big if), it may help to exploit America's historically weird and contentious relationship with third-party politicians. Although a record 43 percent of Americans identify as politically independent, according to a 2015 Gallup poll, many states' laws are seemingly designed to uphold the two-party status quo, giving most independent voters a choice of just two political options. In the end, independent candidates are often left holding the bag, and the bill, before campaigning can even begin.
Independent candidates are often left holding the bag, and the bill, before campaigning can even begin.
The epicenter of these oddly specific legal controversies may be Pennsylvania, where major parties have spent large political, and monetary, capital keeping independent opponents off the ballot.
There's a reason the RNC has been mostly mum on their frontrunner. Currently leading by a large margin in the just about every poll, Trump's switch to a third party could potentially act as a political spoiler next November, splitting the Republican vote and handing the election to the Democratic nominee, a la Teddy Roosevelt in 1912; Ross Perot in 1992; or, from the left, Ralph Nader in 2000. Trump is threatening to single-handedly quash any hopes the Republicans have to take back the White House, unless they play nice.
But what if? What if Trump isn't bluffing? What if he really does decided to go rogue? Trump would be, in fact, a pretty competitive and quintessential third-party candidate, having embraced both far-right and far-left positions over his career.
And given his seemingly endless amount of cash and resources, it may not be too difficult for Donald Trump to gain access to the presidential ballot in all 50 states.
The same cannot be said for other independent parties in the U.S., like the Green, Libertarian and Constitution Parties who, year in and out, become victims of partisan trickery in a system designed to keep them isolated from political contests via laws authored during times of high World War II and Cold War paranoia.
History was not on Ralph Nader's side while vying for the presidency in 2004. Just four years removed from his 2000 Green Party run, many within the Democratic Party still blamed Nader for siphoning votes away from Al Gore in Florida, in the process handing the state—and the presidency—to George W. Bush.
So, when Nader decided to run again, the Democrats were ready. After his campaign gathered signatures and filed them in all 50 states, the Democratic Party and its allies filed 29 complaints against Nader's campaign in 19 states, always with one goal in mind: getting Nader's name removed from the ballot, and making his campaign a non-issue. As a result, Nader was off the ballot in Pennsylvania, Oregon, Missouri, Virginia, Ohio, and several other states.
In Oregon, Nader was disqualified from the ballot even after the signatures his campaign gathered had been authenticated by state election officials. In Pennsylvania, his signatures were challenged, defeated, and then he was given a large bill for his troubles, thanks to Reed Smith, the law firm representing the state's Democratic Party. Nader's challenge to this ruling, and law, would become a battle cry for the state's independent parties—and with good reason.
"Nader became the first candidate in American history to be penalized financially by a state for attempting to run for public office."
Before Nader's candidacy in Pennsylvania, the state's laws regarding independent parties went largely unnoticed. The lack of media attention is sort of baffling, because the state legislation here is totally insane. Pennsylvania law considers any party in which state registration is below 15 percent to be an Independent Party, and, therefore, subject to a different set of rules than Republicans and Democrats. In order to get on the ballot as an independent, per a 1971 state statute, you need to collect enough signatures to total two percent of the highest candidate's vote in the previous statewide election. In recent elections, that requirement has meant anywhere between 20,000 and 70,000 signatures, compared with just 2,000 total for Democrats and Republicans. If an independent's signatures are challenged by a major-party candidate—and they usually are—and the independent loses the challenge, the aspiring candidate may be required to pay an opponent's legal fees associated with that challenge.
Independent parties also don't file their signatures until the August before the November election. In statewide races, therefore, such candidates aren't considered official candidates until then, and often suffer from a lack of media coverage.
In 2004, the Democratic Party of Pennsylvania challenged Nader's 51,000 signatures. Reed Smith was able to convince the Supreme Court that "more than 30,000 signatures on his nomination petitions based on technicalities—because signers used a nickname like 'Bill' instead of the formal name 'William,' for example, or because their current and registered addresses didn't match," according to Oliver Hall, Nader's attorney, writing for the Harvard Law Record this month.
At the time, in addition to the high signature threshold, there were other odd laws that hurt the independent campaign: The state did not allow people from out-of-state to collect signatures on behalf of a candidate; every signature sheet had to be notarized.
The Nader campaign was then—as per Pennsylvania code—required to pay all of the Democratic Party's legal costs; a sum totaling $81,102.19.
"Nader thus became the first candidate in American history to be penalized financially by a state for attempting to run for public office," Hall writes, "an outcome rendering the majority's novel misconstruction of the statute 'most certainly unconstitutional,' according to constitutional law professor Mark Brown."
But the alleged political trickery was just beginning. Nader's 2004 case later became the basis for a titanic corruption scandal, which ultimately put members of both parties behind bars. Then-Pennsylvania attorney general (and later governor) Tom Corbett found that the Democratic Party of Pennsylvania had illegally used "a veritable army," according to the indictment, of state employees to challenge Nader's nominating petitions at taxpayer expense, and the state employees were later given bonuses for their troubles, totaling about $2.3 million. Pennsylvania media later titled the resulting scandal "Bonusgate." Despite evidence that Nader's petitions were challenged via illegal means, his $81,000 bill stood.
Two years after Nader's failed bid, the Pennsylvania Green Party tried to run Carl Romanelli for U.S. Senate against Democrat Bob Casey and Republican Rick Santorum. Romanelli turned in more than 100,000 signatures (after being required 67,000), and was, like Nader, challenged and knocked off the ballot, then given a hefty $89,000 legal bill. Like Nader, Romanelli has never paid up.
"Crimes were committed against my right to speak and run for office, so I refuse to pay the attorneys, co-conspirators for the pleasure of being a victim, for a state-funded crime."
"I did nothing wrong," Romanelli told me in 2012. "Crimes were committed against my right to speak and run for office, so I refuse to pay the attorneys, co-conspirators for the pleasure of being a victim, for a state-funded crime."
In years since, Pennsylvania has seen numerous independent candidates try and fail to run for office. The most recent such independent statewide candidate, Paul Glover, was not able to collect enough signatures, about 21,000, in time for the 2014 gubernatorial race.
"Statewide races are a dead end for independent parties," Glover tells me today, noting fewer requirements and signatures are required in local elections. Glover says he ran in order to offer a new perspective on the Marcellus Shale hydraulic fracturing issue, in which both Pennsylvania Democrats and Republicans agree the state should drill for natural gas—although they don't agree on how to tax it. "Pennsylvania's huge anti-fracking movement failed to put forward a Democratic candidate so that their basic message would have been noted and the movement expanded," Glover says.
Pennsylvania's rules may have led to the most high-profile media storms, but it is far from the only, or worst, state on these issues.
Richard Winger, editor of Ballot Access News, recently put together a list of the 19 worst states for independent candidates for the Center for Voting and Democracy. He found that Alabama might be the worst. Alabama requires a petition of three percent of the last gubernatorial vote—which has only been met once in the history of the law. "Furthermore, if a party does get on, it needs to poll 20% of the vote for any statewide office to stay on," Winger writes.
Other states have their own out-of-touch laws: Maryland requires four times as many signatures for an independent running for statewide election than mainstream-party candidates; an independent presidential candidate running in Florida needs 110,000 signatures by early July; Texas requires presidential independent candidates to collect a number of signatures equaling one percent of the previous presidential vote—by far the largest vote count in one of the largest states in the country; and in Arizona, although declared unconstitutional in 1973, the law's language "bans the Communist Party from the ballot and also says no one has a right to try to persuade someone of the virtues of communism."
But changes are happening, albeit slowly. After several years of legal arguments, decisions, and appeals, Hall sent an email to members of the Green Party of Pennsylvania last week with the not-so-subtle subject line, "WE WIN!"
U.S. District Court Judge Lawrence Stengel has just issued an opinion on a lawsuit brought by the Constitution, Green, and Libertarian Parties, which found Pennsylvania's system of charging costs against petitioning candidates violates the U.S. Constitution—something Hall has been working on since 2005.
"This decision today, unfortunately, does not render that judgment, or the one against Carl Romanelli, unconstitutional," Hall says, "though I would think it will make it that much more awkward for the law firms to enforce the judgments."
While this is considered a big win for third parties in a country where victories are scarce, it's actually up to the legislature to enact remedial legislation that is not unconstitutional and makes the petitioning costs illegal. Until that happens (and other states follow suit with their own hindrances against independent parties), a competitive third-party run in the U.S. is unlikely.