Supreme Court Of The United States - Ballot Access News: Fill & Download for Free

California passed a bill that would keep President Trump off the 2020 ballot unless he releases his tax returns. Is this something that's legal?Probably, as long as the same restriction is applied to all other candidates. That is to say, arbitrary state ballot access laws have consistently kept third party presidential candidates off many state ballots for decades. And if the Talented Mister Trump wants to appear on the California ballot, all he has to do to overcome such a limitation is release his tax returns. Like he said he would, back in 2016.But here's the thing: Trump lost California by a two to one margin in 2016, so not appearing on the ballot in the General Election wouldn't matter as far as capturing California’s Electoral College votes. Where it might matter is in California's potentially open primary, where people who are not Republicans could vote for a Republican candidate other than Trump, although the Republican Party would have to state its preference for an open primary for this to happen. On a related note, there is nothing stopping non-Republicans from registering as Republicans and voting for “anyone but Trump” as a Republican nominee while voting for other parties’ candidates down ballot in the “jungle primary.” Bottom line: If Trump is denied access to California’s primary ballot, he might not win any of California's Republican delegates, and might not be able to win the Republican nomination against Republican challenger William Weld.. . . Hey, it could happen!The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28—33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).Bush v. Gore, 531 U.S. 98, 104 (2000)Added 7:14am PDT Tue Jun 11 2009:In his answer to this question, Quoran Brad Smith, Professor of Law at Capital University Law School in Ohio and Former Chairman of the Federal Election Commission (FEC) under President George W. Bush [first appointed to the FEC by President Bill Clinton] failed to address my apposite citation to Bush v. Gore, which points to Article II, Section One of the United States Constitution as the relevant portion of the Constitution with regard to ballot access for presidential candidates. Bush v. Gore also cites the longstanding precedent of McPherson v. Blacker for the proposition that a State’s power to select the manner for appointing electors is plenary.Compared to Quoran Smith, I am little more than a punk with a law degree, but you don’t need to be a graduate of Harvard Law School and a law school professor to understand that a disclosure requirement for presidential candidates regarding income tax returns does not in any way preclude any presidential candidate from appearing on the ballot. This is analogous to ballot access laws that routinely require candidates to collect signatures, pay filing fees, etc., and it has nothing to do with the inapposite holdings in U.S. Term Limits, Inc. v. Thornton and Cooke v. Gralike cited by Quoran Smith, both of which deal with the unconstitutional imposition of term limits on Members of Congress. (Pursuant to the Twenty-Second Amendment of the United States Constitution, presidents are limited to two elected terms.) Apples and tomatoes, so to speak, both of which are fruits, but one of them sure doesn’t act like it, much like Powell v. McCormack, also cited by Quoran Smith, which has absolutely *NOTHING* to do with ballot access, holding that Congress could not prevent a duly elected Congressman from taking his seat in Congress.In other news, Abraham Lincoln did not appear on any of the ballots distributed to various Southern States in 1860, and that’s because the concept of “ballot access” did not exist prior to the introduction of state-sponsored secret ballots in 1880, making the issue of constitutionality utterly moot, even in the modern context of state ballot access laws. Simply put, the Founding Fathers had no concept of secret ballots, and they fully expected candidates and voters to provide their own ballots, cast openly. Prior to 1880, all ballots in the United States were printed and distributed by agents of the candidates and their parties, and Lincoln was so unpopular in Slave States that it was impossible to organize and distribute any ballots with his name on them, much less find someone who would openly cast a ballot for Lincoln in a Slave State, although anyone was supposedly free to do so. Similarly, anyone who wants to vote for Trump in California can simply write in his name, disemboweling almost any ballot access argument based on filing requirements.Added 7:43am PDT Wed Jun 12 2019:In a reply to a comment to his answer to this question, Quoran Brad Smith wrote:The Court says [in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)] the legislature can’t keep a person or persons off the ballot because it wishes to impose some qualification—say that he reveal his tax return, or whether he supports term limits—that is not in the Constitution.But that ain’t what the Court actually said in Thornton. And according to Quoran Smith’s answer, what would be at issue in the California statute under consideration is whether a disclosure requirement regarding tax returns to appear on the California ballot as a candidate for president is a “qualification.” (Pro tip: It ain’t.) This is categorically different from saying, as the Court *ACTUALLY* said in Thornton, that it is unconstitutional to say that people who have served in Congress a certain number of times cannot appear on the ballot, no how, no way.The provisions at issue in Storer and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates' support in the electoral process.(Quoran Smith, citing Thornton, Quoran Smith’s emphasis removed.)Again, Thornton had to do with electing Members of Congress, and is inapposite to the California statute under consideration, as a completely different set of laws, regulations, and rules applies for electing a President, laws, regulations, and rules that are rooted in Article II, Section One of the United States Constitution. To wit, as the Court unequivocally stated in Bush v. Gore, the States have plenary power regarding the selection of presidential electors, which is really what a presidential election is. That’s not to say that the United States Supreme Court might not decide otherwise if the California statute under consideration is challenged by Trump. However, the Court would be the one (or five of nine) to make that call, and I effin-guarantee you that any ruling by the Supreme Court striking down the proposed California statute would not be unanimous. Rather, quite obviously, such a cynical sell out by the Court would be partitioned along party lines, as was Bush v. Gore.In sum, the people of California want to see the tax returns of all presidential candidates who wish to appear on the California ballot so that they can make an informed decision when casting their ballots, and there is a better than 50/50 chance that the statute under consideration will soon be signed into law making this a filing requirement in California as well as dozens of other states. This filing requirement would clearly be permitted under the plenary powers granted to the States under Article Two, Section One of the United States Constitution, and supposedly “being under audit” won’t qualify as an exception to this disclosure requirement unless and until five United States Supreme Court Justices overrule longstanding Supreme Court precedent.Added 6:13am PDT Sat Jun 15 2019:In the comments section of his answer to this question, Quoran Smith responded to a question about what class of persons would be excluded from office by a requirement to provide tax returns:Those who did not provide tax returns.Ask yourself this: what if Ohio’s Republican legislature and governor had signed legislation before the midterms saying only candidates who took an oath to support Trump’s agenda could appear on the ballot? The only class of persons excluded would those who didn’t take the oath. So would that be a problem?In other words, “class” extends beyond immutable characteristics such as race or ethnicity.Needless to say, there is an obvious and categorical difference between disclosing tax returns and taking an oath. Any and all oath requirements are subject to “strict scrutiny” review for constitutionality by federal appellate courts. (See: Strict scrutiny - Wikipedia.)As for whether “people who don’t disclose their tax returns” would be members of a suspect class as far as constitutional law is concerned, a class like race or ethnicity that might invoke “strict scrutiny” of ballot access statutes, . . . of course not. (See: Suspect classification - Wikipedia.) According to the very case law cited by Quoran Smith, ballot access statutes are typically reviewed for constitutionality by federal appellate courts according to a highly deferential standard of review known as “rational relationship,” as the United States Supreme Court has consistently recognized the plenary power of the States with regard to ballot access for presidential candidates. (See: Rational basis review - Wikipedia.) It seems pretty obvious that the information in a presidential candidate’s tax returns would be “rationally related” to his or her fitness for office, and it is pointless sophistry to assert otherwise.Added 1:29am PDT Fri Jun 21 2019:In the comments section of my answer, Quoran Brad Smith asserted (in pertinent part):Adding a requirement that a person disclose tax returns has nothing to do with running an orderly election—the only reason that the court has held is valid in upholding ballot restrictions.I wholeheartedly disagree. Ballot access restrictions can be as arbitrary as the states desire, as long as they have a rational relationship to some sort of state interest and do not impinge upon a fundamental constitutional right. That is to say, “running an orderly election” might be *A* reason why a statute might pass constitutional muster, but it ain’t the *ONLY* reason.Quoran Smith also asserted (in pertinent part):If some people in California want to see tax returns, they can ask for them. But the state cannot deprive other candidates and voters of having a candidate on the ballot for that reason.Again, I wholeheartedly disagree. As long as all candidates are held to the same standard, no one is being “deprived” of ballot access. To wit, if two or three dozen states say, “Y’all are gonna have to release your tax returns to appear on our state ballots as a presidential candidate,” then presidential candidates are probably going have to release their tax returns to appear on those state ballots.Quoran Smith then also asserted (in pertinent part):Once you have an election, the state can’t discriminate against candidates based on qualifications not in the Constitution.Requiring the disclosure of tax returns is not in any way discriminatory, as long as all candidates are held to the same standard. Again, there is no suspect class at issue that would prompt a federal court to invoke strict scrutiny.Quoran Smith then also asserted (in pertinent part):Nor, I should add, does the state review ballot access requirements under “rational basis” review. See Anderson v. Celebrezze, 460 U.S. 780 (1983).Again, I wholeheartedly disagree, as did the United States Supreme Court in Burdick v. Takushi, 504 U.S. 428 (1992), 432–434:Petitioner proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Our cases do not so hold.[ . . . ]. . . A court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights." [Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Tashjian v Republican Party of Connecticut, 479 U. S. 208, 213-214 (1986).]Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to "severe" restrictions, the regulation must be "narrowly drawn to advance a state interest of compelling importance." Norman v. Reed, 502 U. S. 279, 289 (1992). But when a state election law provision imposes only "reasonable, nondiscriminatory restrictions" upon the First and Fourteenth Amendment rights of voters, "the State's important regulatory interests are generally sufficient to justify" the restrictions. Anderson, 460 U. S., at 788; see also id., at 788-789, n. 9.I suppose that there is a remote possibility that the federal courts might see the requirement to disclose tax returns at issue in the proposed California statute as an issue of first impression that might require strict scrutiny. However, there is absolutely no case law precedent that would prohibit the States from using their plenary power in such a manner, and there is no way that the filing deadline arbitrarily imposed against third party candidates in Anderson is analogous to a disclosure requirement that is applied uniformly to all candidates. That is to say, the plaintiff in Anderson claimed and proved that he was being discriminated against based on an early filing deadline, and that he had a cause of action rooted in the First and Fourteenth Amendments in that he could not obtain ballot access. That was how and why the court invoked strict scrutiny in that case. In striking contrast, the Talented Mister Trump could easily get himself placed on the California ballot by complying with the wholly reasonable and rational disclosure requirement set forth in the proposed California statute, gutting both the constitutional free speech claims and the constitutional due process claims set forth in Anderson.Added 7:35am PDT Fri Jun 21 2019:Quoran Brad Smith replied to my reply in the comments section of this answer:David, I’m sorry, you’re just wrong.You don't need to be sorry, Brad. 'Cause I'm not wrong!Quoran Smith continued:What you say is not what the cases say.It's like I'm looking in a mirror. To wit, you cited Anderson for the proposition that all ballot access cases were subject to strict or intermediate scrutiny, and I responded with a citation from Takushi which stated that Anderson stood for the exact *OPPOSITE* proposition. Sure, *SOME* ballot access cases are reviewed under strict scrutiny or intermediate scrutiny, "but when a state election law provision imposed only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally enough to justify' the restrictions." Burdick v. Takushi, 504 U.S. 428, 432-434 [citing Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)].Yeah, I get that the legislation in Takushi was held to an intermediate scrutiny standard, but that's *NOT* why I cited it. (See Intermediate scrutiny - Wikipedia.) I cited it to contradict the proposition that you set forth above regarding Anderson. To wit, Takushi specifically stated that the "Petitioner [in Takushi] proceed[ed] from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Our cases do not so hold." (Given its role at the top of the food chain, it is not uncommon for the United States Supreme Court to use obiter dicta to provide guidance for lower federal courts in the appropriate standard of review to use in future cases, which is essentially what the Court was doing here.)Quoran Smith continued:It doesn’t matter if a person “could easily” comply with a state law—the whole point is that they don’t have to comply if the law violates the constitution.Sure it matters, especially when the law in question is being reviewed by a federal court pursuant to a rational basis standard, or even intermediate scrutiny. That is to say, there ain't no First or Fourteenth Amendment issues at play with the proposed California statute. Or as I've heard one federal judge tell one federal barrister, "Sorry, counselor. That dog won't hunt."Quoran Smith continued:I give my students lots of exam points for making good arguments, but where a case or exam hypothetical has a clearly right or wrong answer, they eventually get dinged if they don’t come up with the right answer.Which is precisely why, when I was a law student, I would "dumb down" my arguments and tell my professors what they wanted to hear when writing my final exams, even when I knew that my professors were wrong. However, the one and only "A plus" that I earned in law school was in constitutional law, and I earned that grade because I knew that I had a professor who actually understood when and how federal courts would apply rational basis review, something that few law students, lawyers, or law school professors get. That is to say, getting the standard of review right in the real world is typically what determines the outcome of a constitutional challenge. I'm sure that we can both agree on that.Quoran Smith continued:Quoarans[sic] who have read all this can decide for themselves who they think has it right, looking at our comparative credentials, expertise, citations, and arguments.Comparative credentials? I already gave you that point, more than once, but that's a losing argument in federal court, every time. I specifically remember waiting for my friend United States District Court Judge Vaughn R. Walker to go to lunch with me as I watched a federal barrister make that sort of argument while asking for a temporary restraining order in a complex intellectual property case. "Pulling rank" didn't fly there, and it won't fly here on Quora. But if you want people on Quora to review your credentials and evaluate expertise, I think that's a great idea, and I suggest that they start with the Wikipedia article covering you. (See Bradley Smith (law professor) - Wikipedia.) Meanwhile, I am of the opinion that people can read the case law for themselves and determine who’s right and who’s wrong, credentials notwithstanding.Yes, you are an expert in election law. But so are the experts whom I have known and broken bread with for decades, and we all put our pants on one leg at a time. And while I am not at liberty to drop their names, *ALL* of the experts I know disagree with you on this issue. And these experts - not me - will be the ones who will be defending the State of California and the two or three dozen other states which may pass legislation requiring presidential candidates to release their tax returns.Added 9:55am PDT Mon Jun 24 2019:In a comment to Quoran Brad Smith’s answer to this question, Quoran Alan Tufft wrote:Brad, I looked up your Wiki vita, and recommend to readers as a matter of transparency your routine opposition to regulation of corporate contributions to political campaigns, and agreement with Citizens United decision that made the bizarre equivocation between abstract corporate entity and individual human voter despite fact that corporations can’t vote. In his dissenting opinion, Associate Justice John Paul Stevens argued that Court's ruling represented "a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government."Let’s be honest, your opinion is critical of progressive multi-cultural, environmentally friendly Climate Change tech leader, economic powerhouse, and Democratic juggernaut state of California. Your elections commission experience has roots in swamp of Ohio politics, a historically dysfunctional state politically, more completely disrupted environmentally by corporate greed than any other state for being married to fossil fuels, alteration of waterways, and replacing woodland with corn and soybean fields. Ohio is contributor of more than its fair share of mediocre presidents. Might be worthwhile to put on a filter mask, take a deep breath, stand back and admire the landscape of what your corporate based realpolitik has achieved for the Ohio and wants to impose on the nation.Added 9:30pm PDT Mon Jun 24 2019:In the comments section of his answer to this question, Quoran Brad Smith asserted (in pertinent part) in reply to a comment by Quoran Rick DeMent:[R]equiring candidates to disclose information or possess attributes not in the Constitution violates the qualifications clause.There is a categorical difference between disclosure requirements and “possessing attributes not in the Constitution,” a difference that Quoran Smith repeatedly and consistently elides. On this note, Quoran Smith has yet to cite a single case where disclosure requirements such as those in the proposed California statute were held to violate the United States Constitution. A federal court might so rule someday, but probably not, and certainly not unanimously, if and when such a case ultimately reaches the United States Supreme Court. Such a case would involve (at best) an issue of first impression, and - absent a justiciable First or Fourteenth Amendment claim - a federal court would probably review such a statute under the rational basis standard. Specifically, an Equal Protection claim would probably not be cognizable by someone who is not a member of a suspect class (i.e., e.g., a minority).Even under intermediate scrutiny, disclosure requirements such as those found in the proposed California statute would probably be found constitutional, unlike unconstitutional qualifications for ballot access like real property ownership. To wit, “The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.” Turner v. Fouche, 396 U.S. 346, 362–63 (1970) (voiding a property qualification for appointment to local school board). See also Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977)(voiding a qualification for appointment as airport commissioner of ownership of real or personal property that is assessed for taxes in the jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95 (1989)(voiding property ownership requirement for appointment to board authorized to propose reorganization of local government). Cf. Snowden v. Hughes, 321 U.S. 1 (1944).Added 2:13pm PDT Wed Jun 26 2019:In a reply to a comment to his answer to this question, Quoran Brad Smith wrote:As a rule of thumb, any candidate who has a remote chance of getting about 5–10% of the vote will be ordered on the ballot. See Williams v. Rhodes, 393 U.S. 23 (1968); Norman v. Reed 502 U.S. 279 (1992), holding signature requirements were so large as to be unconstitutional, and compare them with Jenness v. Fortson, 403 U.S. 431 (1971), holding signature requirement was a reasonable administrative provision.Sort of. “Sore-loser” laws can and often do prevent major party presidential candidates from switching parties and/or running as independent candidates, regardless of how many votes they might receive in the general election after failing to win a major party nomination. I might add that all of the cases cited by Quoran Smith are cases that address the constitutionality of excluding *third party* and *independent* candidates from the ballot. To wit:Williams v. Rhodes was brought by third parties who plead and proved an Equal Protection claim in that the ballot access provisions involving signature requirements expressly treated potential third party presidential candidates harsher than it treated Republican Party candidates and Democratic Party candidates, an invidious form of discrimination.Norman v. Reed also involved invidious discrimination against a third party that was hoping to qualify for ballot access for candidates in state elections, and the Court held such signature requirements invalid on both Free Speech and Equal Protection.In striking contrast, the primary reason that Jenness v. Fortson upheld signature requirements, in spite of potentially justiciable First and Fourteenth Amendment claims, was that Georgia’s write-in provisions were considered sufficient to overcome both Free Speech and Equal Protection challenges:Unlike Ohio, Georgia freely provides for write-in votes. Unlike Ohio, Georgia does not require every candidate to be the nominee of a political party, but fully recognizes independent candidacies. Unlike Ohio, Georgia does not fix an unreasonably early filing deadline for candidates not endorsed by established parties. Unlike Ohio, Georgia does not impose upon a small party or a new party the Procrustean requirement of establishing elaborate primary election machinery. Finally, and in sum, Georgia's election laws, unlike Ohio's, do not operate to freeze the political status quo. In this setting, we cannot say that Georgia's 5% petition requirement violates the Constitution.[ . . . ]The appellants' claim under the Equal Protection Clause of the Fourteenth Amendment fares no better. This claim is necessarily bottomed upon the premise that it is inherently more burdensome for a candidate to gather the signatures of 5% of the total eligible electorate than it is to win the votes of a majority in a party primary.Worthy of note is the Court’s use of the language “inherently more burdensome” with regard to the Equal Protection claim in Jenness v. Fortson. Indeed, this is how and why most ballot access laws succeed or fail when reviewed by federal courts, as there is absolutely nothing in the United States Constitution about whether or not a state can impose signature gathering requirements. Similarly, any disclosure requirements that are equally applied to all presidential candidates would not be “inherently more burdensome” to any one candidate, and thus would probably pass constitutional muster, a fortiori under the States’ plenary power over choosing presidential electors. On this note, the information in a presidential candidate’s tax returns are wholly relevant to their suitability as a candidate. I mean, how could that information *NOT* be relevant?In a comment to Quoran Brad Smith’s answer to this question, Quoran Ryan Morillo writes:Being the FEC chairman doesn't give you a standing in relation to the constitutionality of a states laws. Your experience does sound like you have a good idea, but either you intellectually are in favor of invalidating it, or you haven't really worked through an argument that could make a compelling case in favor.In all fairness, Quoran Brad Smith is, in fact, a widely recognized expert in election law, although many of his positions are extremely controversial among the election law scholars whom I know. To wit, Quoran Smith is widely recognized as the intellectual architect of Citizens United v. FEC, 558 U.S. 310 (2010), as well as being the author of legal textbooks on election law.That having been said, the case law that Quoran Smith has been citing regarding ballot access is (at best) inapposite to his assertion that the disclosure requirements in the proposed California statute would be an unconstitutional restriction on ballot access for presidential candidates. I’d say the same thing if it were Laurence Tribe, Alan Dershowitz, or Akhil Amar making that sort of assertion. In sum, there are no sacred cows in the legal profession, and I simply don’t cotton to irrational appeals to authority. We all put our pants or trousers on one leg at a time.Added 7:42am PDT Sat Jun 29 2019:In a comment to Quoran Brad Smith’s answer to this question, Quoran Arthur Clifford asks:Would a state be allowed to put a section in the ballot or at least in the ballot info package that has state standards and whether the candidates meet them?And Quoran Smith answered:Possibly in a ballot info package but not on the ballot itself. That latter case is Cook v. Gralike, discussed in the opinion. See also Bramberg v. Jones, a California Supreme Court decision on a similar law.I don’t disagree with Quoran Smith’s conclusion, but Bramberg v. Jones is inapposite to such a question. At issue in Bramberg was a California ballot initiative that exceeded the proper scope of direct democracy by directing California legislators to seek an amendment to the United States Constitution, and was thus illegal. As such, the California Supreme Court never reached the issue of whether such information could be put on the ballot. (Prior restraint of direct democracy, which is astonishingly permissible, was the topic of a law review article that I wrote as a Member of the UC Davis Law Review.) As a practical matter, most challenges to the proper scope of a ballot initiative are litigated after an illegal ballot initiative garners enough votes to pass.As we shall explain, we agree with [the] principal contention that the proposition violates Article V of the United States Constitution, which prescribes the method of amending the federal Constitution.   For this reason, we need not and do not reach [the] additional contentions that Proposition 225 also denies the rights to freedom of speech, to vote, to seek public office, to the equal protection of the laws, and to a republican form of government, all as guaranteed by the federal Constitution (U.S. Const., art.   I, § 6;  id., art.   IV, § 4;  id., 1st Amend.;   id., 14th Amend.), and that it also denies the rights to freedom of speech, to vote, to seek public office, and to equal protection of the laws as guaranteed by the California Constitution.   (Cal. Const., art.   I, §§ 1, 2, 7.)BRAMBERG v. JONES | 86 Cal.Rptr.2d 319 (1999)Added 10:33pm PDT Sat Jun 29 2019:Quoran Brad Smith replied (in pertinent part) to a comment to his answer to this question:[T]his is clearly an attempt to influence the outcome of elections by keeping candidates off the ballot if they do not disclose their tax returns.Not so clear. And this sort of conclusive language is *EXACTLY* the sort of conclusive language that would make me spill red ink all over the papers of my students when I was a teacher’s assistant for legal writing. That is to say, if it’s so damn obvious, why not just state the evidence that makes it so damn obvious?To be “clear,” Quoran Smith is making the extraordinary claim - without any proof - that he is able to divine an insidious legislative intent in the proposed California statute, something that federal courts are loathe to do, especially when there is a much more obvious and innocent explanation for something like requiring presidential candidates to make factual disclosures, and when complying with a statute requiring such disclosures would be so damn easy.Added 2:39pm PDT Thu Sep 19 2019:A federal judge ordered a temporary injunction Thursday against California’s first-in-the-nation law requiring candidates to disclose their tax returns for a spot on the presidential primary ballot, an early victory for President Trump but a decision that will undoubtedly be appealed by state officials.[ . . . ][U.S. District Judge Morrison England Jr.] spent much of the court proceeding on the question of whether a longstanding federal financial disclosure law preempts any additional rules that a state could impose.The federal law, known as the Ethics In Government Act, or EIGA, was originally passed in 1978 and applies to a range of top federal officials. Trump has filed the annual report, most recently in May, which provides an overview of his finances.“Do we even need to get here if EIGA preempts [the new California law]?,” England asked attorneys for the state. “Is that it?”Federal judge blocks California law to force disclosure of Trump's tax returnsRound One to the Talented Mister Trump, as Judge England sidesteps the issue of whether California’s new law is constitutional. I might add that it is not unusual for judges to completely ignore the issues brought before them and rule on unrelated grounds, which is what happened here. I seriously doubt that EIGA will be the final word on the matter, as a ruling on a preliminary injunction can and in this case almost certainly will appealed to the Ninth Circuit, which is what Judge England plans to issue by October 1, 2019. I’m sure the Ninth Circuit will sort things out.

To be absolutely sure, I feel like a true revolution in the US is a remote possibility even under the most volatile conditions. The American people have over 225 years of experience with respecting democratic traditions and the principle of laws above men, to include a bloody Civil War to look back on if ever in doubt of the consequences of failing to resolve differences peacefully (as well as a bloody Revolution that left America devastated, but that aspect of our fight for freedom does not get taught in schools as much).In short, Americans vastly prefer to resolve issues at the ballot box rather than with the ammo box.However, the question does not ask whether a revolution is likely (that’s elsewhere), or whether it would be successful, but what might trigger it. So that’s what I have limited my response to. Although the following scenario might not be probable, I feel it’s the most plausible for what could trigger a revolution in modern America.It’s 2020, and Americans have had it with the two-Party system. Two decades of “Do Nothing” Congresses fighting with successive Administrations, who have turned increasingly to governance by executive decree rather than by law, have left America with no clear domestic agenda while economic and social pressures mount.For decades, major polling firms have tracked the plummet of Americans’ attitudes towards and confidence in their government, and in recent years their moods have been at record lows. At times, even “0%” confidence has been within some polls’ margins of error.Meanwhile, gerrymander-protected Congressmen cushioned by generous campaign donations continue to protect those with access rather than advocate for the nation as a whole. “We’re just responding to the will of our constituents,” they say, even though ever more of them run in decreasingly competitive elections.The disputes in domestic policy are no longer ideological – it is no longer a matter of parties disagreeing with their vision for America – but truly the advantaged versus the disadvantaged. Wealth inequality has transformed from a topic of conversation to something people confront on a daily basis.The 2016 election was one of the most uninspiring in most Americans’ memories, with voter turnout at an historic low and enthusiasm gone beyond the Parties' truly faithful.Two years after the election, faced with still more of the same, the American people decided to make their frustration more apparent, and their resolve channeled into several victories for dark horse, third-party candidates in the 2018 Midterms. It was only a handful of members, but enough to reduce the Republican majority in the House to single-digits. Third-party wins in New England Senate races denied both Parties a majority in the Senate.Political observers expressed their hopes that the voters’ clear message of frustration with the lack of progress in government would force the parties to be more compromising in their agendas, but it did not come to pass. The president, too, did not back down in the face of the independent victories, and continued to use Congressional paralysis as reason to govern by executive order.Going into the presidential election, a charismatic, independent candidate who promises to take the fight to the established Parties grows a large following. His campaign is dubbed “Shock Therapy” for a “flat-lining” America.Despite rising support in the polls over the spring, the Commission on Presidential Debates, controlled by the Democratic and Republican Parties, goes on record as saying that it will exclude the candidate from the debates. This sparks outrage from multiple quarters – not just the candidate’s supporters – and after a demonstration outside the first debate turns violent, the CPD extends the Independent an invitation for the subsequent two debates.The Independent shines on the national stage, eviscerating the Democratic and Republican contenders, who come across as tired advocates for the status quo, unable to rise above ideology for the good of all. He surges in the polls, money and volunteers flood his campaign, and by October there are projections that he could, against all odds, secure an electoral victory.Party stalwarts and pundits, however, cast off these projections as wishful thinking, and claim that their internal polls show no signs of a mass defection towards the Independent.For the remainder of the month, Americans are bombarded with campaign rhetoric that oscillates from combative to panicked, with partisan commentators going well out of their way to demonstrate just why their candidate is all but assured of victory and what that will mean for the country.November 3, 2020Voter turnout in 2016 was down dramatically from 2012, as neither Democrats nor Republicans were particularly enthusiastic about their candidate – to say nothing of the independents’ thoughts – but early signs are that this year’s election has surged to 2008’s level, if not higher.The first polls close at 6 p.m. Eastern time, but it is not until 7 p.m. that results can be announced for certain States. Whereas in elections past the networks are easily able to declare a slew of winners at this hour, the only state they call with certainty is Vermont for the Democratic candidate.It is not necessarily a cause for alarm, though, the pundits say. Voters should be used to the traditional battlegrounds of Virginia, Ohio, and North Carolina being called later in the evening. They gloss over that the reported vote tallies are alarmingly low for the traditional Parties. After some nail-biting, however, Kentucky and West Virginia are sorted into the Republican column soon after 7:30.When 8 p.m. rolls around, normalcy appears to return to the electoral landscape. The traditional Northeast, Democratic strongholds roll over to the Democrats. Mississippi, Tennessee, Alabama, and Oklahoma are called for the Republicans. Battleground states Michigan, New Hampshire, Pennsylvania, Florida, and Missouri are too close to call, but as the pundits stated before, this should not be unexpected.But when a wave of votes comes in from Virginia, the status quo narrative comes to an abrupt end.The Independent candidate has won the Commonwealth with over 40 percent of the vote. At 8:30, when Arkansas predictably goes for the Republican candidate, North Carolina and Georgia are called for the Independent.Then Ohio goes.Then Florida.Commentators try to remain confident as they make projections about what the rest of the country might do, but it becomes apparent in just a matter of minutes that the electoral math is not looking good for the major Parties. Most concede that the Republican candidate will be unable to get the 270 votes needed to win the election, but surely the Democrats will hold Michigan, Pennsylvania, and Wisconsin, among others, and have a narrow victory.However, too many States remain in play, and the uncertainty grows the longer they remain uncalled.Late in the night, the math becomes clear: In order for the Democrats to win the election outright, they must take at least eight of the twelve outstanding States. Their window narrows once it appears that Missouri will be a toss-up between the Independent and the Republican. More results come in, and New Hampshire, Pennsylvania, and Colorado fall convincingly for the Independent.There’s no way around the reality of the election’s results anymore. Bewildered pundits declare an event that has not happened in the United States in almost 200 years: Nobody has won a majority of the Electoral Vote, and so the election will have to be decided by the next Congress.On Wednesday morning, the final results are even less comforting to any American who went to bed hoping the election would be settled definitively.Americans split their vote almost perfectly three ways, but the Democratic candidate edged out a slight victory in the popular vote: 35.8 percent against the Independent’s 32.3 and the Republican’s 31.9. The Independent candidate, however, appears to have prevailed with the electoral vote, earning 198 votes to the Democrat’s 186 and the Republican’s 154.Down ticket, a wave of third party candidates have been elected to the House of Representatives, but still nowhere near enough to secure an outright majority. Republicans, still benefiting from the redistricting that followed the 2010 Census, while no longer in the majority, control the most seats.Only one more third-party candidate is elected to the Senate, but the chamber’s edge is to the Democrats.Across the country, the Parties mobilize armies of lawyers and volunteers to dispute the election results before the States can certify them. Yet even if the Democratic and Republican Parties won all of the legal contests where there’s the best chance of victory, the Independent still won too many States indisputably for either of them to secure a majority in the Electoral College. It’s obvious to all that the best they can do is weaken the Independent’s position before the matter is taken up by the incoming Congress.The legal battles continue through December until, as happened 20 years prior, the Supreme Court forces the States still in contest to end their recounts and certify winners so that the incoming Congress can perform its Constitutional duty and elect the next heads of government.The result of their decision causes Missouri to flip to the Republicans, while New Mexico and Michigan edge to the Democrats. This causes the Independent to fall to second place in the electoral count, to only 3 above the Republicans, with the Democrats climbing to above 200.A week following the Supreme Court’s decision, the electors of the Electoral College meet in their respective State capitals. Throughout the week, many commentators have used their respective media platforms to urge the Independent’s electors to be faithless, believing that he will have no mandate to lead, and spare the country the agony of having Congress decide the election.Between having lost the lead in the Electoral College through partisan, acrimonious recounts and a Supreme Court ruling and being bombarded daily by pundits who believe their candidate should simply concede, the tens of millions of Americans who voted for the Independent begin to stitch a narrative together that the Parties are conspiring to nullify the impact of their votes. If anybody should bow out of the election, they say, it should be the Republicans, who placed third in both the electoral and popular votes.There are faithless electors in late December, but not from the Independent camp – and not many. Only one elector from each of the major Parties casts a vote for the Independent, which is not enough to skew the expected outcome: The Democrat leads, but not enough for victory.Americans now get a sobering lesson in the little-regarded Twelfth Amendment.With none of the candidates receiving a majority of electoral votes, the House of Representatives will be given the task of selecting the President of the United States. The Senate, the Vice President. But whereas each Senator is given the power to vote, in the House, each State Delegation gets a single vote. Moreover, the Twelfth Amendment restricts the selection of Vice President to the candidates who received the two highest numbers of electoral votes, thus eliminating the Republican candidate from consideration. In the House, all three leading presidential candidates are eligible for consideration.The Independent won the most electoral votes before the recounts, but there are only a handful of senators unaffiliated with the major Parties, and are no third party-dominated Delegations in the House. The Democrat won the greatest share of the popular vote before leading in the Electoral College, and the Democrats have the most Senators; but the Republicans, who lost both the popular and electoral votes, control an outright majority of Delegations in the House.January 4, 2021The new Congress convenes and immediately passes a resolution to meet in two days to count the electoral votes. Knowing the electoral situation, the House adopts rules for the counting of ballots that are identical to those passed in 1824, to respect the historic precedent and ensure consistency. After these votes and the recess of Congress, quietly, the Republican and Democratic Congressional leaders meet to discuss a compromise.The leaders agree that nobody wants to see the Independent candidates secure high office, but the question is how to block this from happening without upending the other Parties.In the Senate, the Republicans are urged to support the Democratic candidate for Vice President, as theirs is ineligible for consideration anyway. Republican leaders balk at the proposal, but are eventually persuaded to provide enough support for the Democrats to secure a one or two-vote victory – provided there are no Democratic defections.But what do the Republicans get in return? Democratic support in the House for the selection of the Republican candidate as President? The Democrats reject this. The Republicans trailed too far in the polls for that to be a legitimate possibility.Then what?If the Republicans in the House support the selection of the Democrat as President, then the Democrats will, in turn, support the election of the Republican Speaker of the House. In turn, the Vice President will resign – perhaps in exchange for a high profile cabinet position – and the then-President will select the Speaker as the new Vice President – the Speaker then replaced by another Republican. This would give the Republicans control of House leadership and tie-breaking capacity in the Senate which, given its narrow divide, would not be insignificant.The Republicans are less than convinced and offer no promises.January 6, 2021In the days since Congress convened, it appears to be ever more apparent that House Republicans are poised to select their candidate as President. Even though they came last in the election, they retained control of a large majority of State Delegations in the House. While only a few Republicans have gone on record with their express intent to vote for the Republican candidate, others point to the rules laid out in the Constitution and the necessity of honoring the law.Some Democrats and independents flirt with the possibility of a walkout unless Republicans agree to choose between the leading two candidates, but they simply do not have the numbers to deny the Republicans a Quorum and stall the vote.Tens of thousands of Americans have descended on Washington and Capitol Hill, demanding that their votes be respected. But as the demonstrators come from all camps, and the pressure on Congress already enormous, the protest does not appear to be a particularly persuasive force for those in the Capitol’s halls.A few minutes after 1 p.m., the joint session of Congress convenes in the House of Representatives to verify and count the electoral votes for President and Vice President. As expected, the result is206 for the Democratic candidates169 for the Independent candidates163 for the Republican candidatesThe joint session concludes, and the Members of Congress return to their respective chambers to select the President and Vice President.The Senate is first to go, not as a matter of custom – when the Senate was called upon to select the Vice President in 1836, the Presidential contest was not in doubt at the same time – but because it is easier to organize the roll call necessary to elect the Vice President than it is for the House to take the roll of Members, appoint Representatives as State tellers, cast and tabulate its ballots.By the time the House has confirmed that all 435 voting Members are present, the Senate has, by a larger than expected vote of 78-22, supported the Democratic candidate for Vice President. The news is instantaneously received in the House as its Members mull over their votes.One by one, Members hand their ballots into the Deans of their Delegations, each of whom then proceeds to quietly tabulate the States’ votes with another Member observing. They then wait for the Clerk to call the roll by State.As each State is called, the Sergeant-at-Arms carries two boxes to Delegation, wherein are placed two, identical ballots which declare the States’ selection. He carries one box to each side of the Rostrum, and once all boxes have been collected, 100 Members, two from each State, divide equally to tally and verify the vote of the House.The Republican candidate has prevailed.The presiding officer struggles to bring order to the Chamber as Democrats and independents loudly protest the result. Democratic leaders corner their Republican counterparts to demand answers, but are stonewalled. What are they going to do? Reveal their conspiracy to the public?Outside the Capitol, the scene is even more raucous, and several protesters are detained over the next several hours as many attempt to strike out at Members or otherwise make their disapproval known more physically. Many more protesters are hospitalized as fights break out between rival camps.On the airwaves, commentators and pundits try to play down the shock and anger. “This is how the system works,” they say. “Who should be surprised? Shouldn’t we be relieved that the Constitution has prevailed through this crisis?”Mere hours after Congress’ selection, the President and Vice President-elect hold a joint press conference in which they pledge to help bridge partisan divides and work for all Americans. “We have heard you,” they say. “Now it’s time to move forward.”In other days, these arguments might have prevailed, but Americans no longer believe in “the system.” The system has sheltered the advantaged while doing less and less for those trying to get ahead or scrape by. The system is defending its stagnation and the status quo. The system has obliterated tens of millions of votes for new representation and handed the government over to the minority.Nor do they believe that those in power are capable of bridging partisan divides. They have heard this rhetoric before, and ad nauseum, for far too long and with far too little to show for it to believe it this time.The Independent candidate, though incensed by him and his running mate being shut out by Congress, tries to appeal to people to respect the rule of law and challenge “the corrupt bargain” in coming elections. He promises to form a stronger Party to secure electoral gains in the years ahead and forever shatter the current system.Americans, by and large, are not having it. They no longer want to wait for the next election, or the next, to sort things out. Their anger is real, in the moment, and on the surface.On social media, a passage from America’s most sacred document goes viral:We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.It is soon, and then often, accompanied by an amalgamation of quotes from revered Founding Father, Thomas Jefferson:Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right. . . . It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. . . . Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents.The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.January 20, 2021Seven-hundred thousand people are in the nation’s capital to attend the country’s 58th Inauguration, but it is hard to find the relatively few people who are there to celebrate if not the incoming leaders, the nation’s tradition of peaceful transfer of power. In cities around the country, millions more have gathered in public areas in protest to the incoming administration.At noon, when the President begins the oath of office, he is almost drowned out by the rise of jeers and curses from the crowd. These persist through his very short address to the agitated masses, in which he seems to be begging them to believe that a new age of unity is at hand that will benefit all Americans.When he and the Vice President retreat into the Capitol at the conclusion of the ceremony, their security advises that they forego the parade down Pennsylvania Avenue. The number of arrests has already hit triple-digits, and the crowd moving from the Mall to the route threatens to overwhelm the security in place.They dismiss the recommendation – cowering in the Capitol might only provoke further anger – but they agree to delay the start of the parade, in the hopes people will surrender to the bitter cold and begin to disperse, and to remain in the limousine.The parade was supposed to begin around 2:30 p.m., but does not commence until an hour and a half later. The strategy of hoping the combination of cold and impending sunset would help disperse the crowds has worked to an extent, but it has meant that the devoted demonstrators still lingering are even more riled up.As the motorcade makes its way down Pennsylvania Avenue, the protesters’ response is intense, but mostly vocal – at first. Farther down the road, crowds begin to push against the barricades as the motorcade comes in sight, only to be pushed back by police.Between 9th and 10th Streets, eggs and, in defiance of the cold, shoes are thrown at the presidential limousine, and the motorcade begins to accelerate. But before the President and Vice President can make it to the safety of the White House, a protester becomes the spark that ignites the conflagration.At 13th Street, the corner of Freedom Plaza, as the barricades fail, a man is able to break through the police line and charges at the presidential limousine, rock in hand. He lets it fly, managing little more than to scratch the limousine’s paint, but in a fraction of a second is tackled by a combination of police and Secret Service.That alone might not have been enough to enrage the witnessing crowds, but the law enforcement officers, themselves riled by the hours of confrontation they have endured, break discipline and launch into a brief but brutal assault on the president’s assailant. It looks less like the protester is being arrested and more as though he is receiving a summary punishment.More protesters break free of the barricade in order to rescue their comrade, only to in turn be tackled and assailed. Pushing and shouting gives way to punches, and in minutes Freedom Plaza and the avenue are the site of a melee.Media outlets try to avoid broadcasting scenes of the violence to reduce the risk of provoking the millions watching at home; but as law enforcement and crowd control units rush down Pennsylvania Avenue to contain the violence, those who had remained after the limousine had passed take advantage of the thinning police lines and spill out onto the parade route.There’s no hiding the crumbling security situation anymore, and the nation’s capital is plunged into rioting not seen since 1968.Across the country, most of the crowds dispersed soon after the President was sworn in, but many remain in lasting protest, and are mostly peaceful. Once violence erupts in the capital, however, many local law enforcement agencies attempt to preempt the risk of disorder in their own cities and move in to clear the crowds.In all cases, their plans backfire. City after city witnesses the emergence of riots, until soon there’s hardly a State untouched by the anger spilling out from a fed-up population.Road to RevolutionThe Inauguration Day Riots are mostly quelled by week’s end, with isolated incidents lingering through to the end of the month. The final toll is comparable to a natural disaster. Dozens have been killed, with thousands more seriously injured. Property damages surpass one billion dollars.Although the violence has subsided for now, most recognize that Pandora’s Box has been opened. Grievances against the government are spilling out from all quarters, and respect for lawful authority has plummeted. More and more rallies turn violent at the merest hint of a crackdown, which creates a feedback cycle: Law enforcement arrives to the subsequent rally in bigger numbers and with more gear, convincing the protesters that their rights will not be respected, agitating them to violence, provoking a larger response, and so forth.Eventually, jurisdictions begin denying all demonstration permits in order to ease tensions, but this only sparks a rise in illegal protests and acts of civil disobedience.Congress, in the meantime, has ground to a halt. Democratic leaders, still chaffed by the Republican rejection of their compromise offer, refuse to support any scrap of the Republican agenda in the House and use an array of tactics to stall business in the Senate. Moreover, they refuse to confirm any of the Republican President's Cabinet nominations without concessions, leaving the whole of government starving for leadership. The handful of third party Representatives and Senators have given up on attempting to bridge the divide, and instead serve as conduits of public anger at the intransigent government.Meanwhile, down Pennsylvania Avenue in the White House, the President and Vice President often quarrel on the rare occasions where they speak, and the Administration has yet to put forward a clear agenda for moving the country out of its crisis of confidence.Americans’ largest, collective disapproval of their government comes in April, as a record number individuals “fail” to file tax returns. Recognizing the tax revolt, in a rare act of bipartisanship, Congress first passes a law to extend the filing date to the end of June with no penalties for those who did not file by April 15 – but with increased penalties thereafter.The June deadline, however, is not met with an increase in tax returns being filed, but a several-million strong protest on the National Mall. It is the first protest since the Inauguration Day Riots that articulate national demands for changes to the government. There are calls for a Constitutional Convention.Their demands are met with regurgitated rhetoric.In August, after a summer of news about tax evaders being arrested, redistricting favoring incumbents, and the failure of bipartisanship to make meaningful progress in Congress, the electorate’s anger erupts again as Members of Congress, on recess, duck and dodge at town hall meetings and other public events. Several events turn violent. Eventually, Congressmen stop appearing in public altogether.When Congress reconvenes in September, there are angry crowds at Capitol Hill to demand why the Congress has failed to act on an array of measures, with bills to approve a Constitutional Convention among them. Physical confrontations are rare at first – the police are quick to isolate and remove troublemakers – but the thin veneer of peace does not last long against the storm of discontent.On the afternoon of Friday, September 17, as Congress tries to rush through morning business so they can head back to their districts, protesters are successful in surging past the police lines and force their way into the Captiol Building, storming the House Chamber. The Floor is empty, as it usually is during business hours, but their occupation is a major victory in its symbolism and effect.Energized by the scene of their compatriots in command of the halls of Congress, protesters across the country storm and occupy their State assemblies, forcing legislatures in most States to follow in Congress’ footsteps and hastily adjourn.The message is clear: Americans no longer support the rules of the status quo, and no amount of rhetoric will be sufficient to placate them. Two centuries after the end of its first revolution, the American people have risen up again to revoke their consent to be governed under the ruling order.The Second American Revolution has begun.

Adding to what Ernest W. Adams said about gerrymandering and disenfranchising, I must add that any bipartisan system is inherently unfree, unfair and undemocratic.Of course there are three types of bipartisan systems, one in which we have two major parties just because of ideology polarisation (like Britain, with the Conservatives and the Labour) and one in which there are formal restrictions either to the formation or the development of new parties. The USA falls on the third category.In the USA you are "free" to form any party you wish. There is a Communist Party, a Green Party, a Liberal Party, a Gay Party, an Anarchist Party, a Progressive Party etc. Wikipedia lists 73 political parties in the United States (by my counting, but I was in a hurry), however you only hear about two: Republicans and Democrats. Why are the other parties so absent from news and so far away from prospective power. Don't they have popular support? Are they fringe parties advocating joke ideas? No. They just can't get elected because the system is rigged against them.These two parties (D and R) have won every presidential election since 1852 and dominated congress since 1856. This is a result of several barriers:Winner-takes-all electoral system. For every constituency only one candidate is elected. This means that parties with wide popular support (up to 25% of the general population) may fail to elect a single representative if their support is evenly distributed.Gerrymandering. As Ernest W. Adams mentioned, constituencies are constantly changed, but not only to disenfranchise blacks and elderly people, they are also changed to split across different constituencies areas with a high percentage of sympathy for a third party.Ballot access laws, which require hefty fees for registration (barring smaller, underfunded and newly-founded parties) or require a petition signed by a large number of registered voters. I have seen people complain that in some states the petition must be signed by votes enough to almost win the election already. Although this requirement will not stop one third-party from winning ballot access in a district, it will stop a fourth or a fifth party from gaining it.Debates. The supreme court has upheld the decision from media outlets to block access to them for minorty, third-party or independent candidates. If they can't be heard and seen, they can't pass their message, their ideas cannot be spread and their ideology is lost.Longtime predominance of bipartidarism. A new party will have to face an enormous structure already in place, with little hope of gaining anything.When you compare this system to whatever other country of the world (including some very imperfect democracies, like Brazil) it's easy to see how it is unfree and oligarchic.Proportional (or mixed-proportional) systems allow for runners-up and third-parties to gain some seats in parliament. Though minoritary, these parties have a chance to use their weight to influence the political debate by forming coalitions, which means that, usually, more different ideas are discussed in a typical European parliament than in the USA.For instance, right now the parliament of Germany (Bundestag) is composed by: CDU (Christian Democratic Union), 254 seats, SPD (Social-democratic Party of Germany), 193 seats, CSU (Christian Social Union), 56 seats, Die Linke (The Left), 64 seats and Die Grünen (The Green), 63 seats. CDU and CSU historically are one and the same (CSU only operates in Bavaria and CDU does not operate there) and SPD is their ally. The other parties are in opposition.Meanwhile, this is the Parliament of Australia: Liberal Party (58 seats), Liberal-National Party (22), National Party (9), Northern Territory Country Liberal (1). There is some odd relationship between these that I should ask Quora to explain... Meanwhile there is the Labour Party in opposition and 5 undecided representatives, two of which are independent and 3 belong (one each) to the Greens, the United Party and the Australian Party (these last two seem to be vanity parties).Australia has a winner-takes-all system, which explains the greater polarisation, but it is still more diverse than the USA.In the USA there are no restrictions of party formation but it is quite hard for a party to reach the ballots. Elsewhere it is is usually quite difficult to form a party, but access to ballots is either easy or automatic.In Brazil, for instance, to form a party you need a petition signed by 0.5% of the people who voted the previous election (for the last party formed the requirement was met with 487,000 signatures). Such people must not be concentrated on a single state, but spread across the country, in at least one state of every region. After you form your party you are able to set up local and state chapters and run for every office you wish. No one charges you a fee to print the name of your candidates on the ballots. And if your presidential candidate gets past the 1% mark every debate must include him/her. Usually small parties set up majoritary candidates to "draw votes" for their proportional candidates and these small parties often bring fresh ideas to the debate.This is the current composition of the Brazilian congress:Government: PT (Workers' Party), 70 seats, PMDB (Democratic Movement Party), 66 seats, PSD (Social Democrats), 37 seats, PP (Progressive), 36, PR (Republic Party), 34, PRB (Republican Party), 21, PDT (Democratic Labour), 19, PROS (Social Order Republicans), 11, PCdoB (Communists), 10.Opposition: PSDB (Social Democratic Party), 54, PTB (Labour Party), 25, Democrats (no initials), 22, SD (Solidarity Party), 15, PTN (National Labour), 4, PMN (National Calling Party), 3, PEN (Ecologic Party), 2, PTC (Christian Labour), 2, PTdoB (Brazilian Labour), 1.Other Opposition: PSB (Socialist Party), 34, PPS (Popular Socialists), 10, PHS (Humanists), 5, PRP (Progressive Republicans), 3, PSL (Social-Liberal), 1.Independents (usually in opposition): PSC (Social-Christians), 12, PV (Greens), 8, PSOL (Free Socialists), 5, PSDC (Christian Social-Democratic), 2 and PRTB (Labour Renewal), 1.While this is far from a desirable situation (28 parties in Congress is a too much fragmentation), it shows that the Brazilian democracy (with all its flaws) is far more plural than American democracy.Ballot restriction laws have also the side-effect of making the support of billionaires an essential asset of American politics. A grassroots party will never have enough revenue to form local chapters in enough places to win important elections.