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Unopposed Candidates: The Denial of Your Vote!

17 Oct

“One Person, No Vote.”[1]

This is a republished excerpt. To read or download the entire article, click One person one vote_Article.

If there is any system that the Guarantee Clause forbids, short of a monarchy or dictatorship or other such totalitarian scenario, it is the system that allows unopposed candidates and uncontested elections to run for public office.


Listen up! New Baltimore voters and any other voters who are confronted with unopposed candidates in uncontested elections! You are being denied your right to vote! How Unopposed candidate statutes cut off the few available avenues by which voters in uncontested races can declare whom they want to govern them and how.

Unopposed Candidate Laws — and the Courts Interpreting those Laws — All Deny People The Right To Vote For The Concerned Offices

Our incumbent legislators and judges, the former making the laws and the latter interpreting them, have let the voter down and have avoided the question of denial or dilution of the legal citizen’s right to vote!

In thirty-eight states and the District of Columbia, laws allow candidates running unopposed for certain offices to be “declared elected,” some without even appearing on the ballot. These “unopposed candidate provisions” come in many varieties, but all deny people the right to vote for the concerned offices.

The New York law reads:

“All persons designated for uncontested offices or positions at a primary election shall be deemed nominated or elected thereto, as the case may be, without ballot.” (N.Y. Election Law, ELN § 6-160(2)) [emphasis provided]

So, the bottom line is this: If one party doesn’t have a candidate or chooses not to run a candidate, or by some backroom agreement the parties agree to run only one candidate, New York law denies YOU your right to vote for the candidate of your choice or not to vote for the candidate. That’s sweet little-known fact that you probably didn’t know about. But your legislators do know about it and so do your political party committees do and your board of elections officials!!!

My analysis views the unopposed candidate situation as an opportunity in which to examine several significant approaches to election law:

  1. Whether the purpose of voting is tabulative, that is, does voting answer the Question “How many?
  2. Does voting merely have a rallying purpose, showing solidarity either in political views or simply group-think?
  3. Or is voting expressive or symbolic, that is, a form of speech protected by the First Amendment, and sending a message or expressing an idea, or support for, opposition against, etc. a candidate, a political agenda, or a party.

Most of my readers do not realize that, buried deep within states’ election codes, a number of states accommodate a bizarre little provision of law, which is a very well-kept secret. That secret is that candidates who run unopposed for certain offices are simply “declared electedwithout having to appear on the ballot,[2] and even if they do appear on a ballot as unopposed, are already in office regardless of what voters say. If you find yourself shrugging your shoulders at this little tidbit of revelation, relax: You’re not alone.

For the past two elections the New Baltimore Democratic Party has been unable to produce an electable candidate, much less a competent public servant. This means that the so-called Democraps are so incompetent they can’t get their act together to provide voters with a choice, and fail to challenge Repukelicans with an opponent . So much for democracy. Not only is the New Baltimore Democrap Party and Committee a failure, they remain true to the Democraps’ history: they’re conniving and destructive!

Here’s an example: We recently contacted the New Baltimore Democrap Committee with some questions about candidates or the fact that the Democraps haven’t been able to come up with any candidates. They refused to answer!

But they sure but the “greed” in democracy when they extend an invitation to meet the candidate (Yes, there’s only one, Jim Eckl, a recycled loser from past elections!) for $30 a head (includes appetizers and a cash bar! Wow!) at the Boathouse Grill in New Baltimore. No, Thank you!

Both Republicans And Democrats Play The Same Game, Pointing The Finger At Each Other, While Screwing The Voters.

 

Each Unopposed Candidate “Is Deemed To Have Voted For Himself Or Herself”

Unopposed Candidate Statutes See Elections Only As A Method Of Outcome-Determination

Unopposed candidate statutes significantly affect the way in which people vote (rather, how they think they vote) in the United States, and how candidates can get into public office. People do not vote only when their vote matters, or only because it matters to the ultimate outcome— or so the great propaganda lie goes. All of the evidence suggests that voting is not a “rational” decision for most people, that is, most people don’t think about Why? they vote, they instead vote mainly because they believe they are expressing their beliefs or because it helps them feel like they are part of a larger community (I’m a Republican! I’m an Independent!).

But the unopposed candidate statutes see elections only as a method of outcome-determination, ignoring the main reasons why people actually vote.

The harm these laws doing is diverse and significant but also insidious, because voters are unaware of the damage they’re doing. These laws are treacherous, crafty, and they do their damage in a gradual, subtle way, their harmful effects barely noticeable at any given time. Like undiagnosed cancer.

Thirteen To Sixteen Percent More Voters Cast Blank Ballots In Uncontested Races (“Unopposed Candidate”) Than In Races With Multiple Candidates.

For those who support an unopposed candidate, the statutes deprive them of their right to cast a vote for their chosen representative. For those who find the sole candidate unacceptable, the statutes likewise deprive them of their right not to vote for that person. Voters should take these deprivations seriously. Studies have shown that thirteen to sixteen percent more voters cast blank ballots in uncontested races than in races with multiple candidates. In the 2017 elections in New Baltimore that figure proved true and then some when more than 30% of voters did not cast votes for the unopposed candidates! All of the unopposed candidates were Republicans because the Democrats couldn’t come up with a challenger!


The Example of New Baltimore, New York

In the last elections in New Baltimore, for example, more than 30% of voters who went to the polls abstained from voting for Jeff Ruso, who ran unopposed for Town Supervisor, and the same figure applies to the other unopposed candidates in that election (the exception was Barbara Finke, who ran for reelection as Town Clerk, and whom we supported, even if unopposed). Local figures support the studies and vice versa. (See our Smalbany blog articles: Congratulations, New Baltimore! You did good!; Complacency is a Bad Thing…Especially in Local Government; No Choice! Unopposed Candidates? Here’s the Plan…; New Baltimore Elections: No Choice. The Sequel. (And Coeymans, too!); Today, Tuesday, November 7, 2017: Your To-Do List… )


Unopposed candidate statutes cut off the few available avenues by which voters in uncontested races can declare whom they want to govern them and how.

Unopposed candidate statutes deny individuals the right to vote for their supposedly “elected” officials, which in turn denies those officials the legitimacy conferred by popular election.

Unopposed candidate statutes deny individuals the right to vote for their supposedly “elected” officials, which in turn denies those officials the legitimacy conferred by popular election. And the parties conveniently do not use the campaign to provide voters with information about themselves or their candidate; the political parties fail to inform voters.

Whether unopposed candidate statutes survive or fall under the so-called Burdick test will likely depend on how judges view the character of the harm they impose on voters. And this inquiry itself depends largely on whether judges analyze voting.[3]

That unopposed candidate statutes could impinge on rights provided by Article I, Section 2 and the Seventeenth Amendment; the one person, one vote doctrine; and the Guarantee Clause.

The Supreme Court has declared that the purpose of voting is solely to whittle down the number of candidates until there is a winner

Unopposed candidate statutes throw this debate into stark relief because they translate lack of competition into a complete denial of the right to vote. The laws are uncontroversial because they appear harmless. But the logic underlying them—that we know who the winner will be, so holding an election for the office would be pointless—has potentially disturbing consequences if applied to uncompetitive elections more broadly. Unopposed candidate statutes also pose a challenge for those who would eschew competitiveness in favor of maximizing voter satisfaction, since creating politically homogenous districts could sound the death knell for elections in many instances.

Voting includes an informational and expressive component and that voters should be able to “participat[e] in . . . elections in a meaningful manner.”

What is the purpose of voting? The Supreme Court has declared that the purpose of voting is solely to whittle down the number of candidates until there is a winner.  Voting includes an informational and expressive component and that voters should be able to “participat[e] in . . . elections in a meaningful manner.” If this conception of voting is correct, then unopposed candidate statutes are more troublesome. The laws prevent voters from expressing their preferences, whether through fusion voting, write-in voting, or simply voting for (or refusing to vote for) the candidate. They also prevent the voters and the candidates from gaining valuable information about one another through the ballot box. By studying these statutes, we can gain insight into the state of American election law.

In Thirty-Eight States And The District Of Columbia, Certain Candidates Who Run Unopposed Can Simply Be “Declared Elected.”

These laws have one thing in common: when they apply, the voters have no say.

Unopposed candidate statutes play an important if underappreciated role, since local or municipal races tend to be even less competitive than partisan state or federal races.

States Update Their Election Codes To Further Entrench The Unique Perks Of Running Unopposed

Unopposed candidate statutes are not merely a set of quirky legal oddities, lying staid and dormant, to be safely ignored. These statutes haunt the legal codes of three-quarters of the states, with the potential to affect thousands of elections. Unopposed candidate statutes remain a dynamic part of the law, as states update their election codes to further entrench the unique perks of running unopposed.

Given the general lack of awareness of the harmful effects of unopposed candidate laws, the average voter and even the average local elected official could be almost forgiven for thinking of the laws as quaint products of a colonial town-meeting-style preference for consensus (New Baltimore, NY), or of ruthless machine politics (Albany County, NY).[4]

The courts are always standing ready to complicate a matter, especially if there’s political capital to be gained.

Anyone with eyes to see and ears to hear cannot help to admit that there is an obvious adverse effect of the unopposed candidate laws on the fundamental right to vote, and on the freedom to associate with candidates and fellow voters, as protected by the First and Fourteenth Amendments.

The Unopposed Candidate Laws Flatly Deny The Constituents Of Unopposed Candidates The Right To Vote For Uncontested Offices

Under the fundamental rights view, we have to focus on the voters whose officials were either directly or indirectly “declared elected,” since those voters would face a disproportionate harm. The unopposed candidate laws flatly deny the constituents of unopposed candidates the right to vote for uncontested offices. The effect is that no voter can cast ballots for anyone but the unopposed candidate(s); they may in some cases not even be able to cast blank ballots, or write in name! In other words, these laws prevent citizens from associating with their preferred candidates and their parties “at the crucial juncture at which the appeal to common principles may be translated into concerted action.” Furthermore, unopposed candidate laws impose significant burdens on voting rights, and states must demonstrate compelling interests to justify the harm. But our legislators, political party puppets that they are, conveniently keep the situation under wraps. They have a vested interest in the survival of unopposed candidate laws, and there are obvious benefits in keeping the voting public ignorant of the harm these laws do.

Let’s now have a look at the so-called “one person, one vote doctrine.”

At the practical level, the Court’s one person, one vote cases are not actually limited to vote dilution. Rather, the Court has said, the doctrine “requires that each qualified voter must be given an equal opportunity to participate in [each] election.”

Unopposed candidate statutes allow the switch of elective office to be turned on and off based on how many people decide to run for election for a given public office.

Unopposed Candidate Statutes Create Officials Who Are Not Accountable To Anyone For Their Positions

The Guarantee Clause[5] is the next desperate attempt if the one person, one vote doctrine is not effective in voiding an unopposed candidate election law. The clause provides that “[t]he United States shall guarantee to every State in this Union a republican form of government.”[6]

By almost any definition, a republican form of government includes state and municipal (local) officials who are accountable to the people. But unopposed candidate statutes create officials who are not accountable to anyone for their positions.

I can hopefully simplify an understanding of this scenario by using a fictional example: In the above example of the Florida debacle, over one-third of Florida’s state legislators were not actually elected to their current terms of office. Now, what if, sometime in the future, fifty-one percent of the legislators ran unopposed and were “declared elected?” as is already the reality for the current Louisiana House of Representatives! A majority of the legislature would then hold power without receiving a single vote. What if two-thirds of the legislators were so “elected” (as is already the case for the Arkansas State Legislature)? Seventy-five percent? All of them? At what point do unopposed candidate statutes, by removing voters from the electoral process, transform a state’s government from a republic into something else? Like A NoKo dictatorship or a Stalinist Russia?

As James Madison wrote in Federalist, a republican government requires that “the persons administering it be appointed, either directly or indirectly, by the people.” Founding-era Americans “clearly believed that ‘the right of representing is conferred by the act of electing’” — that “the elected are not representatives in their own right, but [only] by virtue of their election.” The Founding Generation believed that “the process of voting was not incidental to representation but was at the heart of it.”

It quickly becomes clear that democratically elected state officials and local officials are a requirement for republicanism. The Federalist declared accountability to the people to be the very definition of a republic.

“The right of the people to choose their own officers for governmental administration” — so that power “is exercised by representatives elected by them” — is “the distinguishing feature of” the republican form.

 “The right to vote freely for the candidate of one’s choice,” the Court declared, “is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

Put simply, the Guarantee Clause guarantees a government accountable to the people.

Elected officials — even those who are unopposed — ultimately owe their positions to, and are thereby accountable to, the people. Those who are appointed owe their positions to other government actors, who are then accountable for their choices of appointees come Election Day. Those who are “declared elected” thanks to the harmful unopposed candidate laws, on the other hand, are accountable to no one for their offices. If there is any system that the Guarantee Clause forbids, short of a monarchy or other such scenario, it is the system that allows unopposed candidates to run for public office.

Editor’s Afterword

People vote for a number of reasons, some of which traditional psychology would classify as irrational: the desire to participate in the democratic process, the feelings of civic duty and American-ness that voting engenders, and the pleasure of expressing one’s support for or opposition to particular partisan preferences. Voter satisfaction theory, premised on the idea of preexisting, immovable beliefs, denies this reality. Political competition theory, focused on the potential expressive benefits of hard-fought campaigns, ignores it. The Supreme Court’s approach to the electoral process, which limits voting to a winnowing function, rejects it. Regardless of the political and philosophical theories or the opinions of the judges, the act of voting does have meaning independent of the ultimate outcome. It is this fact for which unopposed candidate statutes fail to account—and for which they should be held to account.

If there is any system that the Guarantee Clause forbids, short of a monarchy or dictatorship or other such totalitarian scenario, it is the system that allows unopposed candidates to run for public office.


NOTES

[1] I would like to gratefully acknowledge Mr. Noah B. Lindell, Esq., Law Clerk to the Hon. John D. Bates, U.S. District Court for the District of Columbia, who inspired this article and provided much of the material for it in his own exemplary scholarship evidenced in his 2017 published commentary, “One Person, No Vote.” (Lindell, N.B. “One Person, No Votes: Unopposed Candidate Statutes and the State of Election Law.” Wisconsin Law Review. 2017.5 (2017): 885-954.)

[2] A full list of these laws is as follows can be found in Lidell’s fine article ; I am listing only the NewYork statutes here:; N.Y. Elec. Law § 6-160(2) (McKinney 2017); (See the complete list in Lindell, ibid. fn 1 at 886)

[3] For the sake of simplicity I will simply note that the two approaches are  the fundamental rights strand or the suspect class strand of equal protection.

[4] For example, when Indiana passed an election reform package, into which one legislator slipped a provision that required county clerks to remove unopposed municipal candidates from the ballot, and when state legislative leaders found out about the provision, they raised hell, with the Speaker of the House calling it “terrible public policy.” The sponsor of the law defended it as an efficient measure that would save counties money. Didn’t anyone think of the fact that voters’ rights might have been protected. Of course not. The bottom line was to “save mone

“One Person, No Vote.”[1]

Listen up! New Baltimore voters and any other voters who are confronted with unopposed candidates! You are being denied your right to vote! How Unopposed candidate statutes cut off the few available avenues by which voters in uncontested races can declare whom they want to govern them and how.

Unopposed Candidate Laws — and the Courts Interpreting those Laws — All Deny People The Right To Vote For The Concerned Offices

Our incumbent legislators and judges, the former making the laws and the latter interpreting them, have let the voter down and have avoided the question of denial or dilution of the legal citizen’s right to vote!

In thirty-eight states and the District of Columbia, laws allow candidates running unopposed for certain offices to be “declared elected,” some without even appearing on the ballot. These “unopposed candidate provisions” come in many varieties, but all deny people the right to vote for the concerned offices.

DENIED!!!

The New York law reads:

“All persons designated for uncontested offices or positions at a primary election shall be deemed nominated or elected thereto, as the case may be, without ballot.” (N.Y. Election Law, ELN § 6-160(2)) [emphasis provided]

So, the bottom line is this: If one party doesn’t have a candidate or chooses not to run a candidate, or by some backroom agreement the parties agree to run only one candidate, New York law denies YOU your right to vote for the candidate of your choice or not to vote for the candidate. That’s sweet little-known fact that you probably didn’t know about. But your legislators do know about it and so do your political party committees do and your board of elections officials!!!

My analysis views the unopposed candidate situation as an opportunity in which to examine several significant approaches to election law:

  1. Whether the purpose of voting is tabulative, that is, does voting answer the Question “How many?
  2. Does voting merely have a rallying purpose, showing solidarity either in political views or simply group-think?
  3. Or is voting expressive or symbolic, that is, a form of speech protected by the First Amendment, and sending a message or expressing an idea, or support for, opposition against, etc. a candidate, a political agenda, or a party.

Most of my readers do not realize that, buried deep within states’ election codes, a number of states accommodate a bizarre little provision of law, which is a very well-kept secret. That secret is that candidates who run unopposed for certain offices are simply “declared electedwithout having to appear on the ballot,[2] and even if they do appear on a ballot as unopposed, are already in office regardless of what voters say. If you find yourself shrugging your shoulders at this little tidbit of revelation, relax: You’re not alone.

For the past two elections the New Baltimore Democratic Party has been unable to produce an electable candidate, much less a competent public servant. This means that the so-called Democraps are so incompetent they can’t get their act together to provide voters with a choice, and fail to challenge Repubicans with an opponent . So much for democracy. Not only is the New Baltimore Democrap Party and Committee a failure, they remain true to the Democraps’ history: they’re conniving and destructive!

Here’s an example: We recently contacted the New Baltimore Democrap Committee with some questions about candidates or the fact that the Democraps haven’t been able to come up with any candidates.

But they sure but the “greed” in democracy when they extend an invitation to meet the candidate (Yes, there’s only one, Jim Eckl, a recycled loser from past elections!) for $30 a head (includes appetizers and a cash bar! Wow!) at the Boathouse Grill in New Baltimore. No, Thank you!

Both Republicans And Democrats Play The Same Game, Pointing The Finger At Each Other, While Screwing The Voters.

Each Unopposed Candidate “Is Deemed To Have Voted For Himself Or Herself”

Unopposed Candidate Statutes See Elections Only As A Method Of Outcome-Determination

Unopposed candidate statutes significantly affect the way in which people vote (rather, how they think they vote) in the United States, and how candidates can get into public office. People do not vote only when their vote matters, or only because it matters to the ultimate outcome— or so the great propaganda lie goes. All of the evidence suggests that voting is not a “rational” decision for most people, that is, most people don’t think about Why? they vote, they instead vote mainly because they believe they are expressing their beliefs or because it helps them feel like they are part of a larger community (I’m a Republican! I’m an Independent!).

But the unopposed candidate statutes see elections only as a method of outcome-determination, ignoring the main reasons why people actually vote.

The harm these laws doing is diverse and significant but also insidious, because voters are unaware of the damage they’re doing. These laws are treacherous, crafty, and they do their damage in a gradual, subtle way, their harmful effects barely noticeable at any given time. Like undiagnosed cancer.

Thirteen To Sixteen Percent More Voters Cast Blank Ballots In Uncontested Races (“Unopposed Candidate”) Than In Races With Multiple Candidates.

For those who support an unopposed candidate, the statutes deprive them of their right to cast a vote for their chosen representative. For those who find the sole candidate unacceptable, the statutes likewise deprive them of their right not to vote for that person. Voters should take these deprivations seriously. Studies have shown that thirteen to sixteen percent more voters cast blank ballots in uncontested races than in races with multiple candidates.

In the last elections in New Baltimore, for example, more than 30% of voters who went to the polls abstained from voting for Jeff Ruso, who ran unopposed for Town Supervisor, and the same figure applies to the other unopposed candidates in that election (the exception was Barbara Finke, who ran for reelection as Town Clerk, and whom we supported, even if unopposed). Local figures support the studies and vice versa. (See our Smalbany blog articles: Congratulations, New Baltimore! You did good!; Complacency is a Bad Thing…Especially in Local Government; No Choice! Unopposed Candidates? Here’s the Plan…; New Baltimore Elections: No Choice. The Sequel. (And Coeymans, too!); Today, Tuesday, November 7, 2017: Your To-Do List… )

Unopposed candidate statutes cut off the few available avenues by which voters in uncontested races can declare whom they want to govern them and how.

Unopposed candidate statutes deny individuals the right to vote for their supposedly “elected” officials, which in turn denies those officials the legitimacy conferred by popular election.

Unopposed candidate statutes deny individuals the right to vote for their supposedly “elected” officials, which in turn denies those officials the legitimacy conferred by popular election. And the parties conveniently do not use the campaign to provide voters with information about themselves or their candidate; the political parties fail to inform voters.

Whether unopposed candidate statutes survive or fall under the so-called Burdick test will likely depend on how judges view the character of the harm they impose on voters. And this inquiry itself depends largely on whether judges analyze voting.[3]

That unopposed candidate statutes could impinge on rights provided by Article I, Section 2 and the Seventeenth Amendment; the one person, one vote doctrine; and the Guarantee Clause.

The Supreme Court has declared that the purpose of voting is solely to whittle down the number of candidates until there is a winner

Unopposed candidate statutes throw this debate into stark relief because they translate lack of competition into a complete denial of the right to vote. The laws are uncontroversial because they appear harmless. But the logic underlying them—that we know who the winner will be, so holding an election for the office would be pointless—has potentially disturbing consequences if applied to uncompetitive elections more broadly. Unopposed candidate statutes also pose a challenge for those who would eschew competitiveness in favor of maximizing voter satisfaction, since creating politically homogenous districts could sound the death knell for elections in many instances.

Voting includes an informational and expressive component and that voters should be able to “participat[e] in . . . elections in a meaningful manner.”

What is the purpose of voting? The Supreme Court has declared that the purpose of voting is solely to whittle down the number of candidates until there is a winner.  Voting includes an informational and expressive component and that voters should be able to “participat[e] in . . . elections in a meaningful manner.” If this conception of voting is correct, then unopposed candidate statutes are more troublesome. The laws prevent voters from expressing their preferences, whether through fusion voting, write-in voting, or simply voting for (or refusing to vote for) the candidate. They also prevent the voters and the candidates from gaining valuable information about one another through the ballot box. By studying these statutes, we can gain insight into the state of American election law.

In Thirty-Eight States And The District Of Columbia, Certain Candidates Who Run Unopposed Can Simply Be “Declared Elected.”

These laws have one thing in common: when they apply, the voters have no say.

Unopposed candidate statutes play an important if underappreciated role, since local or municipal races tend to be even less competitive than partisan state or federal races.

States Update Their Election Codes To Further Entrench The Unique Perks Of Running Unopposed

Unopposed candidate statutes are not merely a set of quirky legal oddities, lying staid and dormant, to be safely ignored. These statutes haunt the legal codes of three-quarters of the states, with the potential to affect thousands of elections. Unopposed candidate statutes remain a dynamic part of the law, as states update their election codes to further entrench the unique perks of running unopposed.

Given the general lack of awareness of the harmful effects of unopposed candidate laws, the average voter and even the average local elected official could be almost forgiven for thinking of the laws as quaint products of a colonial town-meeting-style preference for consensus (New Baltimore, NY), or of ruthless machine politics (Albany County, NY).[4]

The courts are always standing ready to complicate a matter, especially if there’s political capital to be gained.

Anyone with eyes to see and ears to hear cannot help to admit that there is an obvious adverse effect of the unopposed candidate laws on the fundamental right to vote, and on the freedom to associate with candidates and fellow voters, as protected by the First and Fourteenth Amendments.

The Unopposed Candidate Laws Flatly Deny The Constituents Of Unopposed Candidates The Right To Vote For Uncontested Offices

Under the fundamental rights view, we have to focus on the voters whose officials were either directly or indirectly “declared elected,” since those voters would face a disproportionate harm. The unopposed candidate laws flatly deny the constituents of unopposed candidates the right to vote for uncontested offices. The effect is that no voter can cast ballots for anyone but the unopposed candidate(s); they may in some cases not even be able to cast blank ballots, or write in name! In other words, these laws prevent citizens from associating with their preferred candidates and their parties “at the crucial juncture at which the appeal to common principles may be translated into concerted action.” Furthermore, unopposed candidate laws impose significant burdens on voting rights, and states must demonstrate compelling interests to justify the harm. But our legislators, political party puppets that they are, conveniently keep the situation under wraps. They have a vested interest in the survival of unopposed candidate laws, and there are obvious benefits in keeping the voting public ignorant of the harm these laws do.

Let’s now have a look at the so-called “one person, one vote doctrine.”

At the practical level, the Court’s one person, one vote cases are not actually limited to vote dilution. Rather, the Court has said, the doctrine “requires that each qualified voter must be given an equal opportunity to participate in [each] election.”

Unopposed candidate statutes allow the switch of elective office to be turned on and off based on how many people decide to run for election for a given public office.

Unopposed Candidate Statutes Create Officials Who Are Not Accountable To Anyone For Their Positions

The Guarantee Clause[5] is the next desperate attempt if the one person, one vote doctrine is not effective in voiding an unopposed candidate election law. The clause provides that “[t]he United States shall guarantee to every State in this Union a republican form of government.”[6]

By almost any definition, a republican form of government includes state and municipal (local) officials who are accountable to the people. But unopposed candidate statutes create officials who are not accountable to anyone for their positions.

I can hopefully simplify an understanding of this scenario by using a fictional example: In the above example of the Florida debacle, over one-third of Florida’s state legislators were not actually elected to their current terms of office. Now, what if, sometime in the future, fifty-one percent of the legislators ran unopposed and were “declared elected?” as is already the reality for the current Louisiana House of Representatives! A majority of the legislature would then hold power without receiving a single vote. What if two-thirds of the legislators were so “elected” (as is already the case for the Arkansas State Legislature)? Seventy-five percent? All of them? At what point do unopposed candidate statutes, by removing voters from the electoral process, transform a state’s government from a republic into something else? Like A NoKo dictatorship or a Stalinist Russia?

As James Madison wrote in Federalist, a republican government requires that “the persons administering it be appointed, either directly or indirectly, by the people.” Founding-era Americans “clearly believed that ‘the right of representing is conferred by the act of electing’” — that “the elected are not representatives in their own right, but [only] by virtue of their election.” The Founding Generation believed that “the process of voting was not incidental to representation but was at the heart of it.”

It quickly becomes clear that democratically elected state officials and local officials are a requirement for republicanism. The Federalist declared accountability to the people to be the very definition of a republic.

“The right of the people to choose their own officers for governmental administration” — so that power “is exercised by representatives elected by them” — is “the distinguishing feature of” the republican form.

 “The right to vote freely for the candidate of one’s choice,” the Court declared, “is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

Put simply, the Guarantee Clause guarantees a government accountable to the people.

Elected officials — even those who are unopposed — ultimately owe their positions to, and are thereby accountable to, the people. Those who are appointed owe their positions to other government actors, who are then accountable for their choices of appointees come Election Day. Those who are “declared elected” thanks to the harmful unopposed candidate laws, on the other hand, are accountable to no one for their offices. If there is any system that the Guarantee Clause forbids, short of a monarchy or other such scenario, it is the system that allows unopposed candidates to run for public office.

Editor’s Afterword

People vote for a number of reasons, some of which traditional psychology would classify as irrational: the desire to participate in the democratic process, the feelings of civic duty and American-ness that voting engenders, and the pleasure of expressing one’s support for or opposition to particular partisan preferences. Voter satisfaction theory, premised on the idea of preexisting, immovable beliefs, denies this reality. Political competition theory, focused on the potential expressive benefits of hard-fought campaigns, ignores it. The Supreme Court’s approach to the electoral process, which limits voting to a winnowing function, rejects it. Regardless of the political and philosophical theories or the opinions of the judges, the act of voting does have meaning independent of the ultimate outcome. It is this fact for which unopposed candidate statutes fail to account—and for which they should be held to account.

If there is any system that the Guarantee Clause forbids, short of a monarchy or dictatorship or other such totalitarian scenario, it is the system that allows unopposed candidates to run for public office.

This is a republished excerpt.
To read or download a PDF of the  entire article, click One person one vote_Article.


Notes

[1] I would like to gratefully acknowledge Mr. Noah B. Lindell, Esq., Law Clerk to the Hon. John D. Bates, U.S. District Court for the District of Columbia, who inspired this article and provided much of the material for it in his own exemplary scholarship evidenced in his 2017 published commentary, “One Person, No Vote.” (Lindell, N.B. “One Person, No Votes: Unopposed Candidate Statutes and the State of Election Law.” Wisconsin Law Review. 2017.5 (2017): 885-954.)

[2] A full list of these laws is as follows can be found in Lidell’s fine article ; I am listing only the NewYork statutes here:; N.Y. Elec. Law § 6-160(2) (McKinney 2017); (See the complete list in Lindell, ibid. fn 1 at 886)

[3] For the sake of simplicity I will simply note that the two approaches are  the fundamental rights strand or the suspect class strand of equal protection.

[4] For example, when Indiana passed an election reform package, into which one legislator slipped a provision that required county clerks to remove unopposed municipal candidates from the ballot, and when state legislative leaders found out about the provision, they raised hell, with the Speaker of the House calling it “terrible public policy.” The sponsor of the law defended it as an efficient measure that would save counties money. Didn’t anyone think of the fact that voters’ rights might have been protected. Of course not. The bottom line was to “save money.”

[5] For an “interpretation” of the Guarantee Clause see https://constitutionallawreporter.com/guarantee-clause/

[6] A republican form of government has nothing to do with the repugnant Republican party as we know it today. Rather, a republican form of government is understood to be associated with the term “republic,” and commonly means a system of government which derives its power from the people rather than from another source.

y.”

[5] For an “interpretation” of the Guarantee Clause see https://constitutionallawreporter.com/guarantee-clause/

[6] A republican form of government has nothing to do with the repugnant Republican party as we know it today. Rather, a republican form of government is understood to be associated with the term “republic,” and commonly means a system of government which derives its power from the people rather than from another source.

 
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Posted by on October 17, 2018 in Uncategorized

 

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