9.32.1 MYTH: Major parties will be taken off the ballot because of National Popular Vote.
- The fact that the major political parties are usually unable to keep minor parties off the ballot in presidential elections indicates that it would be very difficult for one major party to keep the other major party off the ballot in any state.
- The public would not tolerate having only one presidential candidate on the ballot even in states where one political party is dominant.
- The Equal Protection Clause and the Guarantee Clause of the Constitution provide a strong legal basis for thwarting any attempt to create a one-party state.
On September 13, 2012, the Kansas State Objections Board (consisting of Republican Secretary of State Kris Kobach and two other Republican statewide officeholders) considered a motion to keep Democrat Barack Obama off the presidential ballot in Kansas.
The New York Times reported that the motion was abandoned a day later as a result of “a wave of angry backlash.”
The Board’s short-lived effort to turn Kansas into a one-party state immediately generated speculation on an elections blog that the National Popular Vote plan would result in major political parties being thrown off the ballot in states dominated by the other political party, thereby preventing the removed party from getting any substantial number of votes in the state.
On one blog, Valarauko said:
“A state dominated by one party could try to use NPV to rig a presidential election, by setting ballot qualification requirements that would be very tough for the other party to meet (e.g., Massachusetts could grant general election Presidential ballot status automatically only to parties that have >20% of the registered voters, and impose a huge signature-gathering requirement for ballot status on any that don't), thus knocking the other party's votes in that state to 0.”
Creation of a one-party state as a result of the National Popular Vote plan should not be a realistic concern for several reasons.
First, major political parties frequently use sharp-elbowed tactics to try to keep minor parties off the ballot; however, these efforts generally fail. For example, in October 2012, the Pennsylvania Republican Party tried to keep Libertarian presidential nominee Gary Johnson (a former Republican governor of New Mexico) off the presidential ballot in Pennsylvania.
“The Pennsylvania Republican Party chairman said he was not about to give Mr. Johnson an easy opening to play a Nader to Mr. Romney’s Gore in Pennsylvania this year.”
Despite Pennsylvania Republican Party efforts, Johnson appeared on the 2012 ballot in Pennsylvania (and in a total of 48 states).
Similarly, despite vigorous opposition from the Democratic Party, Ralph Nader (who received 2.7% of the vote in 2000) got onto the ballot in 47 states and the District of Columbia in his race for President.
John Anderson (who received 7% of the national popular vote in 1980) was on the ballot in all 50 states.
Ross Perot (who received 19% of the national popular vote in 1992) was on the ballot in all 50 states in both 1992 and 1996.
In summary, third-party presidential candidates who had substantial support (such as John Anderson in 1980 and Ross Perot in 1992 and 1996) got on the ballot in all 50 states, and third-party candidates with low-single-digit support succeeded in getting onto the ballot in almost every state (e.g., 47 or 48).
The lack of success by major political parties in keeping minor parties off the ballot indicates that it would be even less likely that a major party could be taken off the ballot in any state.
Second, the immediate and harsh public reaction to the Republican challenge to Obama in Kansas in 2012 is a reminder of the fact that the public (even in a state that votes heavily Republican) would not tolerate the creation of a one-party state in the United States.
Despite the impression created by the bloggers, there is political diversity and competition in both Kansas and Massachusetts. Kansas had Democratic governors from 20032011 (Kathleen Sibelius from 20032009 and Mark Parkinson from 20092011), and Massachusetts had Republican governors from 19912007 (most recently Mitt Romney from 20032007).
Third, the Equal Protection Clause of the 14th Amendment to the U.S. Constitution provides a strong legal basis for challenging any attempt to create a one-party state.
“No state shall deny to any person within its jurisdiction the equal protection of the laws.”
Fourth, the Guarantee Clause of the U.S. Constitution provides an additional legal basis for challenging any attempt to create a one-party state.
“The United States shall guarantee to every State in this Union a Republican Form of Government.”
In summary, speculation that the National Popular Vote would create one-party enclaves is a parlor game having no connection to real-world political reality, the legal environment in which American elections are conducted, or the sense of fairness demanded by the American people.
 Eligon, John. Kansas ballot challenge over Obama’s birth is ended. New York Times. September 14, 2012.
 Valarauko. October 20, 2012. http://www.volokh.com/2012/10/30/the-popular-vote-and-presidential-legitimacy/
 Rutenberg, Jim. Spoiler alert! G.O.P. fighting Libertarian’s spot on the ballot. New York Times. October 15, 2012.
 U.S. Constitution. Article IV, section 4, clause 1.