Opinion: Not Happy With Election? Don’t Wait for Viable 3rd Party in NJ

Andrew Sidamon-Eristoff | November 1, 2016 | Opinion
Daunting obstacles to mounting a challenge by a third party almost guarantee that the state’s two-party hegemony is here to stay — for the time being

Andrew Sidamon-Eristoff
It’s an obvious question: If a majority of the American electorate is at least somewhat dissatisfied with the current choices for president — not to mention the choices for other federal, state, and local offices — why doesn’t a viable new political party emerge?

With apologies to eminent political scientists who have devoted entire careers to this topic, the basic answers are fairly straightforward.

At one level, notwithstanding the few significant realignments in American political history, the two major national parties have a fairly successful record of adjusting to, incorporating, and even co-opting emerging political movements that otherwise might have evolved into competitive third parties. For example, in recent years the Republican Party has largely absorbed (if not entirely digested) the Tea Party movement and the anti-trade component of Ross Perot’s 1992 Reform Party campaign while the Democratic Party establishment is still negotiating an awkward embrace of Occupy Wall Street and related “progressive” movements. Some (including this author) would argue that, over time, this evolutionary dynamic has promoted relatively stable coalition politics, and thus represents the genius of the American two-party system.

At another level, however, there is no avoiding the fact that state legal structures and longstanding practices have enabled and protected the two major parties’ hegemony over our political process. New Jersey provides some excellent examples.

Beginning at the beginning, in most states it’s deliberately difficult to achieve and maintain legal recognition as a political party. For example, New Jersey law defines a “political party” as a party “which, at the election held for all of the members of the General Assembly next preceding the holding of any primary election … polled for members of the General Assembly at least 10 percent of the total vote cast in this State.”

As a practical matter, garnering 10 percent of the total vote for members of the General Assembly is a very steep hill to climb for a new party organization. Let’s use the 2014 election cycle as an example. (1) A total of 3,721,971 votes were cast in the 2013 general election for General Assembly, meaning that any new political organization would have had to receive at least 372,197 votes (10 percent) for its General Assembly candidates to qualify as a political party for the 2014 primary and general elections. The expense and organizational effort required would have been prohibitive.

Recognized political parties enjoy the right to nominate candidates via primary elections and a range of important privileges that tend to reinforce the established parties’ hegemony. The first, and arguably most important, is a provision in the State Constitution that gives the chairs of the two political parties whose candidates for governor receive the largest number of votes at the gubernatorial election before the decennial census the right to appoint members of the New Jersey Apportionment Commission, which in turns draws the boundary lines of legislative districts for the next 10 years. One can easily question whether any such Apportionment Commission would ever make it a priority to maximize an aspiring third party’s vote for General Assembly.

Another key privilege of party recognition is institutionalized ballot position. Political pros know that whether a candidate’s name appears on Column A, Column B, or somewhere else matters a great deal. In most states the rules for determining ballot position typically favor the two major parties. New Jersey law, for example, provides that only the nominees of the two recognized political parties are entitled to have a “party column” (or row) on the official ballot. The names of all other nominees must be printed in the column or columns designated “Nomination by Petition”. Thus the Republican and Democratic nominees for any office always enjoy relatively prominent ballot position (that is, Column A or Column B). It’s no accident that New Jersey voters face a challenge simply in locating a favored independent or third-party candidate on a crowded official ballot. For example, the 2016 ballot will feature seven “Nomination by Petition” candidates for president listed on Columns C through I.

Of course, ballot position is only important if your candidate’s name is actually on the ballot. Given that successful write-in candidacies are almost as rare as free and fair elections in North Korea, it’s practically impossible to win an election without having your name appear on the official ballot. In most states candidates who are not supported by an established or recognized political party face tougher informal, if not formal, hurdles. In New Jersey, for example, the petition-gathering and filing requirements for major party and nonmajor party candidates are substantially equal in law but not necessarily equal in practice. In reality, major party candidates enjoy a distinct organizational advantage in obtaining petition signatures, not to mention more convenient access to legal and other resources necessary to challenge or defend the validity of petitions and otherwise maintain compliance with the elections law.

The issue of ballot access leads to the related matter of multiparty nominations. In a deliberate reaction to the rise of significant third parties in the late 19th century, a large majority of states including New Jersey adopted “anti-fusion” laws that prohibit multiparty nominations (that is, candidates nominated by more than one party). (2) This makes it much more difficult for new parties to build organizational strength and influence elections by nominating or “cross-endorsing” established parties’ candidates. (3)

Finally, what about the administration and oversight of elections themselves? Most states give the two established national parties de facto control over the conduct of elections. Under New Jersey law, for example, each county has a board of elections made up of an equal number of Republicans and Democrats who exercise jurisdiction over such matters as recruiting, training, supervising, and appointing poll workers and receiving, canvassing, and counting paper ballots. Independent or third-party candidates might be excused for regarding this as a less-than-welcoming environment.

As the foregoing examples demonstrate, law and practice in New Jersey and elsewhere strongly favor the two major parties’ continued organizational hegemony. At the same time, however, the traditional two-party system is clearly losing popular confidence if not breaking down altogether. If the emergence of viable new party is unlikely, it’s fair to ask: what lies ahead?

1. Example from Democratic-Republican Organization of New Jersey v. Guadagno, N.J. Super, Docket No. A-0 (2015).

2. As per Wikipedia

3. By contrast, New York allows multi-party nominations. Combined with a law that allocates a recurring ballot line to any political party whose nominee for governor received at least 50,000 votes on that party’s ballot line in the last gubernatorial election, this has led to a lively and ideologically diverse array of parties on New York’s ballot.