Slashing the Gordian Knot of Bipartisan Ballot Access Censorship

in Issue Analysis
Alexander Cutting the Gordian Knot by H A Guerber
Illustration by H A Guerber

According to Article I, Section 4, of the United States Constitution, the authority to regulate the time, place, and manner of federal elections is up to each State, unless Congress legislates otherwise. However, the final authority on regulations of the time, place and manner of elections are the citizens who have natural, inherent and constitutionally recognized rights that neither the Congress nor any state legislature may violate. The right to vote is one of those natural, inherent individual rights which is protected by the First, Ninth, and Fourteenth Amendments by implication elsewhere in the U S Constitution.

How did Americans exercise their individual right to vote before and after the ratification of the Constitution? To begin with when voting with paper ballots the paper each voter used to publish his vote (only males voted back then) was the private property of the voter. The voter could write the name of anyone he pleased on his ballot and transfer that published preference to state authorities for tallying with the published preferences of all others who voted in an election. This straightforward exercise of the voter’s right worked satisfactorily for 100 years until the 1880s when the notion was spread that voters were influenced or intimidated too much by some partisans and need protection at the ballot box when the voter cast his ballot (still only males voted). The solution to this alleged crisis was to adopt the balloting procedures invented and adopted in Australia in the 1850s – the secret ballot reform.

How was enabling the voter to cast his ballot anonymously implemented? By monopolizing the claim of ownership for production of ballots and compelling all voters to vote using only the state monopoly ballot. Where in U S constitutional documents can the power to seize ownership of the private property, the ballot, found? Nowhere. Nevertheless, in a short period of time beginning in 1888 in Massachusetts and New York the socialized ownership of the ballot by state governments as a suddenly public utility was adopted and is now the regime in all states and U S possessions. By the way, there was no just compensation for the taking of ballots from voters as one might think was due as stated in the Fifth Amendment.

The monopolization of the ballot created an artificial scarcity. The state must bear the costs of paper and ink to print ballots. The costs of printing ballots was directly related to the number of offices and candidate names which must appear on the ballot from whom voters were compelled to choose. The state asserted the power to limit how many candidate names they are obligated to print to give the voters a “fair” range of choices. The relief valve from this rationing of ballot space was to continue to allow voters to write-in the name of any candidate which was not printed on the ballot by the state. This relief valve avoided a confrontation over ballot censorship so long as it was also easy for candidates to also meet very lenient quotas to have their names printed as “official” candidates on the ballot.

For a couple of decades until into the 20th century the relief valve of the write-in vote and lenient quotas for candidates and parties to be advertised on the ballot as officially “recognized” was accepted by voters and endorsed by the judiciary.

Then came the Red Scare of the 1920s. The idea was spread in the media to the public that “the Russian Communists and their socialist fellow travelers are coming” and they will use the ballot to overthrow the Constitution. The reflexive action was to centralize power in the status quo by imposing new more difficult and expensive quotas on access to the list of recognized official candidates and minimize the value of the write-in vote to zero or as close as the courts would allow to zero. Some states have succeeded in enforcing an absolute ban on the right to vote by write-in. One of those states is Oklahoma where the author was born and has resided most of his life.

We have summarized the history of the monopolization of the ballot and the rise of censorship at the principal to which has entrenched two and only the two same [political parties in power for the last 100 years in all states and nationally. The result of ballot access laws which effectively censor voter rights has been progressive corruption of government which the institution of a duopoly of parties which act as quasi-governmental agencies almost totally unaccountable to voters.

Hyperbole? Then why is ballot access reform to strike down the barriers to maximizing the voter’s right to choose so vociferously defended in the legislatures and the courts? All we are asking is to let the voter choose without the censorship of fees, petitions, deadlines, and discriminatory “regulations” which favor the candidates of two particular and suppress all other candidates partisan and independent. The present electoral system is authoritarian and rigged to the extent that it raises questions of the legitimacy of the entire government.

There is a sword which can slash this authoritarian Gordian Knot. An open all write-in ballot. One can find a working example of such a ballot in the Federal Write-in Absentee Ballot. There is a catch. Only American citizens who are residing abroad are allowed to use this ballot. All domestic voters must use the ballots of the state monopolies or their votes are null and void. The adoption by the Congress of the format for the FWAB, as it is called, as the universal ballot which all states and territories must use would defeat the rationale for rationing ballot access by censorship. All voters would have the same unlimited power to write-in candidates and that means to power to overthrow governments without overt violence. That is the purpose of voting which our forefathers presented to their posterity. Today, their posterity votes in circles in a blind ballot alley.

I have legal standing and I want to sue the state of Oklahoma in federal court to present this argument and seek to effectively abolish all ballot access laws. To my chagrin, a majority of the present composition of the Libertarian National Committee refuse to support my complaint and join with me as a co-plaintiff. The most I have been able to glean from my presentation to them in 2018 is that they believe my strategy is too radical and too far outside of conventional legal dogma. But as I contend it the voters who are the final arbiters of the extent of their own political rights and not the courts staffed by adherents of the duopoly parties. The people can be roused to speak if someone asks them to speak for their rights. The history of civil rights in the U S makes evident. Raising voting rights as a major issue is consistent with the Libertarian Party’s founders pledge to “challenge the cult of the omnipotent state and defend the rights of the individual.” I was there.

What I want to know is can a majority of Libertarian party members support my challenge to the cult of the omnipotent state and the sect of slicing all challenges as thinly as will fit in the duopoly ideology democracy?