Constitutional Law Expert Mark Brown Advocates for Third Party Candidates in Ballot Access Issues

October 30, 2008

Newton D. Baker/Baker and Hostetler Chair of Law Mark R. Brown

For Capital University Law School Professor Mark R. Brown, Newton D. Baker/Baker and Hostetler Chair of Law, democracy would be better served if more third party presidential candidates appeared on the ballot.

“The protection of individual rights comes from minor parties,” says Brown, who, since 2003, has taught constitutional law and constitutional litigation at Capital and has a long resume as a pro bono proponent and attorney in well-known ballot access issues for independent candidates.

“Americans are taught that anything that has to do with minor candidates is a bad thing,” Brown says. “The voter needs to be reconditioned to accept that minor parties are not spoilers; they are not irrelevant; they are not a nuisance. Once we create a culture of acceptance, we are on a path to a better democracy.”

In describing the importance of minor candidates in the American political process, Brown wrote in a Columbus Dispatch editorial this year, “Their presence facilitates political evolution and keeps the powers-that-be honest. Minor candidates are an important check on political tyranny.”

In his pro bono work (he describes as “a moral responsibility for attorneys”) to address ballot access issues, Brown, in collaboration with other attorneys throughout the country, has been involved with the following recent noteworthy cases which impact this November’s presidential election in Ohio and other states:

Moore v. Brunner, No. 08-224 (S.D. Ohio 2008), invalidated Ohio’s statute requiring that the circulators of candidates’ petitions be residents who are registered to vote in Ohio. Invalidation of the law makes it easier for independents to qualify for the Ohio ballot.

Libertarian Party of Ohio v. Brunner, 567 F. Supp.2d 1006 (S.D. Ohio 2008), invalidated Secretary of State Brunner’s 2007 Directive that required minor parties to collect and file more than 20,000 signatures 11 months before the election, and ordered the Libertarian Party onto Ohio’s ballot.

Moore v. Brunner, No. 08-224 (S.D. Ohio 2008), ordered the Socialist Party USA presidential candidates onto Ohio’s ballot.

Because of the Moore v. Brunner and Libertarian Party of Ohio v. Brunner rulings, there will be four minor-party candidates on Ohio’s presidential ballot: Chuck Baldwin and Darrell L. Castle (Constitution), Cynthia McKinney and Rosa A. Clemente (Green), Bob Barr and Wayne Allyn Root (Libertarian), and Brian P. Moore and Stewart Alexander (Socialist).

Brown’s other ballot access issue cases throughout the country include:

In a Feb. 12, 2008 editorial in the Columbus Dispatch, Brown wrote:

“America, unfortunately, has devolved into a two-party (and two-candidate) system. The benefits behind this approach - efficiency and fidelity - do not outweigh it costs. In particular, America’s political duopoly suppresses free thought. The two major parties silence dissident voices with promises and penalties; sacred party beliefs and “taboo” topics are squelched in the name of loyalty. An austere marketplace of slogans and codes has consequently emerged, with two parties marginally competing over voters in the middle. I say marginally because the modern Republican and Democratic platforms are not that different.”

[ Read the Editorial ]

Libertarian Party of Louisiana v. Dardenne, No.08-582 (M.D. La. 2008), invalidated the Louisiana Secretary of State’s new deadline issued after Hurricane Gustav that required filing by Sept. 8, the day the state office re-opened. The office informed the Libertarian Party at 3:15 p.m. that day that the filing was needed by the end of day.

The governor of that state had extended other administrative deadlines to Sept. 12 and the Libertarians filed on Sept. 10. However, the District Court found that the Secretary did not have the authority to set a deadline and therefore ordered the Libertarian Party candidates onto the ballot. Unfortunately, the United States Court of Appeals for the Fifth Circuit stayed the order, concluding that forcing the state to correct its ballots would be costly and disruptive. The Supreme Court denied an Application for a Stay.

Stevo v. Keith, F.3 rd (7 th Cir. 2008), sustained an Illinois law requiring independent congressional candidates to collect a number of signatures equal to 5 percent of the vote cast in the District in the last election, in years ending in 0, 4, 6, 8. Meanwhile, election years that end in a 2, following a Census, require 5,000 signatures.

Brown, et. al., argued unsuccessfully against the 10,000+ signature requirement, using the 5,000 signature requirement as a benchmark. He says he has petitioned for a rehearing, but it is unlikely to happen before the election.

Moore v. Hosemann, No. 08-573 (S.D. Miss., 2008), rejected a challenge to the Mississippi’s Secretary of State’s refusal to accept the Natural Law Party’s filing at 5:01 p.m. on Sept. 5, 2008. The Secretary’s office closed at 5 p.m. The suit argued that Mississippi law does not specify time of day for filing, and the Secretary cannot change the rule without violating Article II of the Constitution. The Court refused to issue an injunction and the Fifth Circuit also rejected a Motion for a Preliminary Injunction. Brown says he will pursue the case after next week’s election.

Nader v. Blackwell, 07-4350 (6 th Circuit), challenges former Ohio Secretary of State Kenneth Blackwell’s application of state residence and registration requirements to Ralph Nader in 2004. Nader had sought injunctive relief, but after the election the 6 th Circuit concluded it moot. Nader re-filed seeking financial damages from Blackwell personally. On appeal, Brown argued the case before the Sixth Circuit. On Oct. 29, 2008, the court ruled in favor of Nader stating that Blackwell violated Nader’s First Amendment rights by excluding thousands of signatures he collected in 2004 based on circulators not being residents and registered voters.

“The Sixth Circuit specifically ruled that these unconstitutional requirements, and not “massive fraud” as repeatedly alleged by Democrats, are what caused Nader’s removal,” says Brown. “This decision is a decisive victory for Nader. It proves he was wrongly removed in 2004.” [ Read the Ruling (PDF) ]

What’s a voter to do? Brown suggests:

Support third parties and minor candidates.
Sign petitions circulated by minor candidates.
Ask favored candidates about laws that make it difficult for third-party candidates to run.
See that ballot-access laws are repealed or amended.

Because regulations for ballot signatures, filing dates and fees vary from state-to-state, independent candidates will continue to be at a disadvantage, Brown says.

He compares the political process of two major political parties to choosing a car. “You wouldn’t want to pick between only a GM and a Ford. You want to look at Subarus, Toyotas, Hondas, etc. So why would you want to pick between only two candidates? If the marketplace is good enough for cars, why wouldn’t it be good enough for more than two parties?”

Brown believes the framers of the Constitution had not envisioned a presidential election with only two candidates, because Article II states that if there is no majority, the House of Representatives will select the winner from the five highest on the list.

Brown has taught at the Stetson University College of Law, The Ohio State University College of Law, the University of Illinois College of Law, was a judicial fellow at the Supreme Court of the United States, and a clerk to the Hon. Harry W. Wellford of the United States Court of Appeals for the Sixth Circuit.

He is a graduate of the University of Illinois College of Law (LL.M.) and the University of Louisville School of Law (J.D.) He has co-authored Constitutional Litigation Under § 1983, and he has served on the board of directors for the ACLU foundations of Florida and Ohio.