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Santorum, Gingrich belong on Virginia ballot

By Theresa Amato, Special to CNN
March 5, 2012 -- Updated 1857 GMT (0257 HKT)
Former. Sen. Rick Santorum, shown campaigning in Ohio, won't be on the Virginia ballot Tuesday.
Former. Sen. Rick Santorum, shown campaigning in Ohio, won't be on the Virginia ballot Tuesday.
STORY HIGHLIGHTS
  • Voters in Virginia won't be able to back Santorum or Gingrich on Super Tuesday
  • Theresa Amato says restrictive laws and court challenges keep candidates off ballots
  • She says other nations make it much easier to be listed as a candidate
  • Amato: Ballot rules are limiting voter choice, to the detriment of democracy

Editor's note: Theresa Amato, Ralph Nader's national presidential campaign manager and in-house counsel in 2000 and 2004, is the author of "Grand Illusion, The Myth of Voter Choice in a Two-Party Tyranny."

(CNN) -- American voters this presidential election year are still stuck with an archaic electoral process that artificially restricts our ballot choices.

January provided another glaring example when federal courts rejected the efforts of Newt Gingrich and Rick Santorum to appear on the Virginia ballot in the state's Republican primary. Virginia voters who go to the polls Tuesday are left with only two Republican primary options: Mitt Romney and Ron Paul.

Both Gingrich and Santorum have won substantial GOP victories in some states. After those victories, the Virginia ballot access restrictions are especially unfair to voters and the candidates.

Theresa Amato
Theresa Amato

Virginia also canceled the Democratic primary because no one dared to mount a primary challenge to President Obama, and it does not permit write-in votes in the primary.

These choice-restricted elections should make us wonder how far we are from a Soviet-style system where the competition is pruned such that the election merely ratifies the controlling party's choice. Our election rules have so burdened potential competitors from being able to mount a national presidential campaign that state governments might as well just tell non-"front-runner" two-party candidates, third parties and independents: "Don't bother."

The courts are not helping. A lower-court decision upheld Virginia's requirement that presidential candidates collect 10,000 valid voter signatures, using only in-state circulators, with at least 400 signatures from each of 11 congressional districts, even as it noted that Virginia's circulator provision was "likely" unconstitutional. Four of five other appellate courts reviewing similar provisions have said so. Both the lower and appellate courts reasoned that regardless of the constitutionality of the Virginia law, the candidates waited too long to challenge the rules.

These courts have now placed the burden on candidates at the outset of mounting a presidential campaign to challenge everything that may be unconstitutional with state ballot access laws, lest any potentially unconstitutional feature should prevent giving candidates access to the ballot.

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The Virginia decisions help perpetuate a system that places an unconstitutional burden on presidential candidates of any stripe to navigate 51 different sets of state (and D.C.) rules. The burden falls hardest on third-party and independent candidates who generally face much higher hurdles and discriminatory laws than the two-party candidates. Indeed, Santorum and Gingrich should phone home, as Pennsylvania and Georgia are among he worst-offending states.

As Ralph Nader's national campaign manager in 2000 and 2004, I became aware of several states whose election officials knew that aspects of their laws had already been ruled unconstitutional but couldn't get their state legislatures to change the outdated statutes.

Election administrators would have to send court decisions out to candidates seeking ballot access to explain the legal status of their published statutes. In some states, overtly partisan election officials could not agree on the meaning of their laws or made up new ballot access procedures via internal office memorandum -- mid-election.

Federal candidates and their campaigns should not also be burdened with spending precious time and resources at the beginning of their campaigns to clean up unconstitutional state ballot laws. Candidates with resources would probably use the money to hire more petition collectors to triple or quadruple their signature collection totals -- and thereby have so many excess signatures, they could avoid court challenges that might otherwise knock them off the ballot.

Candidates without resources would be required to fix the unconstitutional features of state laws first to have a chance to get on the ballot. If resource-strapped candidates are unwilling to mount those challenges, the likely result would be that the unconstitutional laws remain unfixed, even as they continue to chill political speech and association.

Our frequently criticized ballot access laws are among the most restrictive in the world: England requires 10 signatures and a fee to stand for Parliament, and Canada requires at most 100 signatures. Why should U.S. federal candidates have to collect tens or hundreds of thousands of valid signatures and do the work that a responsible legislature should do to fix or reform these laws?

The flip side of candidate rights is voter rights. Why don't we have a uniform federal ballot access law for all federal elections that will permit any candidate with demonstrated community support to gain ballot access and expand voter choice? Our ballots are not overcrowded. As Fair Vote documents in its Dubious Democracy reports, in many elections, gerrymandered, winner-take-all districts leave voters with little or no choice other than the major-party incumbent who invariably wins in a landslide.

Byzantine state electoral laws, overseen by thousands of electoral jurisdictions of varying competency and partisanship, unduly restrict the ability of candidates to present their candidacies to voters.

Democracies should make electoral participation easy and not stifle competition in an already uncompetitive system that rewards incumbents and the wealthy candidates who are able to buy their way around state-imposed ballot access tyranny.

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The opinions expressed in this commentary are solely those of Theresa Amato.

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