A Meaningful Franchise
The voter's complete choice
Among the tactics for achieving liberty put forth in recent years is the idea of adding "None of the Above" to all ballots, to allow voters a chance to express their dissatisfaction with either (1) the lack of choice between the opposing candidates, or (2) their more general disgust with the whole political system. Thus far, this campaign has been only semi-serious, basically as a public relations effort. In the article which follows, however, attorney Ridgway Foley expands upon this idea as a serious tactic, developing both an intriguing proposal for reform of state election laws, and a method for implementing the proposal.
How often have you heard disgruntled members of the electorate complain that, once again, they were forced to choose between the lesser of two evils? All too often, in these days of inept and untrustworthy politicians. Most election contests offer a choice between Tweedledee and Tweedledum, or no choice at all. The miasma of political me-too-ism has been building to a crescendo in this nation since the unfortunate 1940's and offers little sign of abatement. The two major political parties appear as carbon copies of one another, and their offerings at the polls represent precious little difference in political philosophy, let alone morality.
A VOTER'S BOYCOTT?
California witnessed a partially tongue-in-cheek approach to the mee-too-ism of 1972 with the "Boters' Joycott" which took as its slogan "Vote for Sterile Hasson: He Can't Get You into Trouble." The theory bore merit; one ought to be able to say "I protest," "I will not participate in election schemes which offer me no real choice and which demean me as a human being by presenting the facade of an alternative." Moveover, most political animals today seem bent on exposing citizens to ever increasing taxes to support ever expanding programs designed to take ever more freedom from one segment of society and give to another, all the while feathering the nest of the taker-donor-politician. The best choice at the election booth may well be the most incompetent candidate, the one least likely to be able to think of ways to corrupt the system further.
Supporters of the voters' boycott point to the fact that American citizens stay away from the polls in droves each election day and contend that this fact demonstrates a dissatisfaction with the system or the candidates or both. Obviously, such an argument merits some dissent. It is equally probable that persons decline to vote for other reasons: ill health, incompetence to comprehend the issues of the day, disinterest, press of business, or just plain apathy. Percentage of nonvoting does not measure voter dissatisfaction; it merely describes nonvoting for whatever reason. Perhaps these disenchanted voters echoed Albert Jay Nock, who once wrote not so very long ago: "I once voted at a Presidential election. There being no real issue at stake, and neither candidate commanding any respect whatever, I cast my vote for Jefferson Davis, of Mississippi. I knew Jeff was dead, but I voted on Artemus Ward's principle that if we can't have a live man who amounts to anything, by all means let's have a first-class corpse. I still think that vote was as effective as any of the millions that have been cast since then." (Albert Jay Nock, A Journal of These Days, pp. 73-4.)
Moreover, a voters' boycott fails to correct any wrong. So long as a sufficient number of persons, no matter how minute, decide to cast a ballot, a protest of nonvoting will produce an empty bag. The system remains; Doe gets two votes and Roe receives one; Doe wins, despite 97 nonvoters who wholly and heartily disapprove of the system, the candidates, and the lack of choice.
Protest retains its place in society. But protest must be meaningful, and nonvoting lacks meaning and saliency for no one can measure the effect and nature of the protest from mere abstinence. An effective protest conveys the message in clear and unmistakable terms; I protest, I disagree with the choice presented, I disavow the necessity for unnecessary laws. If a protest sounds a warning it has accomplished some effect, no matter if the scoundrels slip by for yet another term at the public trough during which they may again violate their public trust. One can always take whatever solace exists in knowing that (1) he performed a moral act and made a moral choice in a meaningful way, and (2) on another day, the educational, attractive, and persuasive effect of his act might topple an unjust system.
ELEMENTS OF COMPLETE ELECTORAL CHOICE
This essay proposes to discern and discuss the essential elements to a meaningful franchise, a complete range of choice between alternatives in the election booth. It suggests several elements which could find incorporation into the laws of the several states as examples for the Federal Government to emulate if successful. Most likely, the most efficient means of incorporation into law would be through constitutional amendment in states which possess initiative, referendum and direct legislative system recall. If a majority of the electorate in a given territory desire a complete choice, direct legisiation provides the most effective vehicle to accomplish a task which will surely not intrigue (indeed will terrify) any entrenched political figure.
(a) Count all write-in votes. Interestingly, and not unexpectedly, election systems are generally operated by politicians and for their benefit. While election years witness a great effort to curry favor with the voter, all too often he becomes the forgotten man of the nation even when it comes to counting the votes, if he does not cast a ballot for one of the chosen few who retain the label and favor of the major political parties. Accordingly, the first step in securing a free and open society by means of a free and open election system demands implementation into law the norm that all votes registered by citizens be counted and given equal publication. (Libertarians recognize the market process, whereby each individual "votes" by means of trading his created value (property), as the most efficacious means of decision-making. Nevertheless, so long as the political process remains in existence, the reforms proposed herein offer a constructive way to offer a broad range of political choice to all inhabitants.)
The concept of federalism employs states as independent units of government. It justifies this division of authority on the ground that power diffused provides power less often abused, and also upon the reason that states can act as political incubators for new and untried political ideas, ideas that may someday deserve utilization at other levels of government. Such a concept produces a concomitant effect: diversity. Thus, one cannot properly categorize all state procedures as identical. Nevertheless, a review of election laws and practices in each of the 50 states reveals that many units of government treat protest, write-in, and minor party votes most cavalierly. Ofttimes one not barnacled to the political apparatus discovers great difficulty in even finding a place on the ballot: witness the prolonged problems encountered by the American Independent Party chaired by governor George Wallace in 1968.[1] Franchise laws seldom compel election officials to count and post all write-in, protest, and minor-party votes, thus depriving the public of knowledge and educational value attached to such endeavors.
A free society truly governed by principles of justice would require that all votes, regardless of nominee, should be counted and posted with all election results. The cost of the electoral process, a topic deserving of separate attention, should be borne equally by those choosing to vote, not by their nonvoting brothers. Presumably, election boards could deny efficacy to disfigured and disqualified ballots, but care should be taken that such limitations do not degenerate into a vehicle for excluding all votes cast outside of the political mainstream. All too often zealous officials find it tempting to treat as disfigured those ballots which contain write-in or protest votes, thus effectively disenfranchising the voters who attempted to voice their discontent with the system.
One may well complain that such a counting system will impose heavy burdens upon the election officials. Such a contention disregards the verity that the electoral process constitutes one of the very few appropriate areas of governmental service, one of the limited functions for which the state exists. Cost of a fair and accurate count and posting will be slight compared to the advantages derived from the system. Actually, the contention comes down to an official dissatisfaction with the proposed system and a favoritism for the major parties. The status quo deserves no such elevation.
Again, one may counter that counting write-in and protest votes will encourage the electorate into voting for "Mickey Mouse," "Yogi Berra," and "Stalin." True, some wags always find it humorous to endorse the names of such real or fictional characters with no intent that they be elected to office—yet who are we, or the election officials, to deny them this right? After all, isn't the franchise free and open to all who are qualified? If we are to limit entry to the ballot box to solemn, serious citizens, the rules and guidelines will be cumbersome indeed and frankly reminiscent of a police state. Moreover, entry of the name "Mickey Mouse" may reveal a deep-seated protest against the prevailing candidate or the office, perhaps more deeply felt than a predilection to vote for one's neighbor or colleagues for the same office. If an elector feels that a Walt Disney character will do just as good a job as a Supreme Court Justice as the man running (often unopposed) for the office, doesn't that tell us a great deal about the citizen mood and discontent with those in power? Finally, the mere fact that a few persons will decide to make fun of the system or the office by a humorous entry ought not bar more numerous individuals from acting, singly or collectively, to write in a real, live qualified candidate, either as a protest against the listed candidates or in an attempt to secure electoral success for the chosen one.
In sum, the enactment of a complete-choice law imposes an obligation upon the electorate to simplify and make commonly known the laws of the jurisdiction concerning write-in or protest voting, to eliminate discriminatory features against minor parties and self-generating individual candidates, and to assure that all ballots voted are counted and treated as decisive.
(b) Ready access to the ballot. Clarity and fairness in regard to write-in votes brings to mind a related rule: the need for ready access of all candidates to the ballot.
Again, the rules attendant upon the several states differ in degree, but most political units endorse the trend toward limitation on the ballot. This tendency appears in the pseudopolitical-scientific railing against the "bedsheet ballot" which belittles the competency of voters to pass upon myriad issues and candidates at an occasional election. Such gnashing of teeth and wailing at the wall became apparent during the 1972 general election in the state of Washington which witnessed some two dozen initiated and referred laws for the electorate to consider. Disparagement of the voter bears little relation to the facts. Most voters exhibit the competency to pass upon their own destiny, at least to the same extent as their "leaders" who decry the capabilities of the voter. Remember—the "political leader" derives from the same mass as the voter and possesses the identical traits of finiteness and fallibility. Indeed, the statesmen populating our government offices these days appear to display the worst kind of habits found in mankind, somewhat more degenerate than the belittled mass-man.
Again, the tendency reappears in restrictive regulations concerning candidates. Although too numerous to mention, many states impinge upon the right of persons to file as candidates in both primary and general elections. The laws are weighted heavily in favor of the established major parties, and against the individual candidates without affiliation or against the minor parties. Coercively graded filing fees, such as those fees imposed by Texas and struck down recently by the Supreme Court of the United States[2], may become so burdensome as to destroy essential franchise rights vaguely guaranteed by the state and national constitutions.
The Supreme Court of the United States has been increasingly cautious about exclusion of voters from an effective franchise by virtue of race, creed, or residence. Thus, a state cannot curtail voting rights by excluding blacks from a Democratic primary in a state where the Democratic nomination is tantamount to election[3]; nor can a state attempt to exclude citizens from voting by intricate "grandfather clauses" and a maze of literacy tests which can be manipulated to disqualify otherwise competent voters[4]; nor can the state exclude a class of voters for gerrymandering[5]. The "one man, one vote" political decisions represent the apogee of this philosophy.[6]
Courts have been somewhat less aware of the fundamental right to access to the ballot as well as to the polling booth. Thus a wave of restrictions exist which stultify and impede candidacies of qualified persons. The right to vote exists in the worst of police states in the 20th century—witness Soviet Union political elections—yet that right means nothing if the law denies the electorate a wide spectrum of candidates.
One concomitant issue deserves consideration—the plague of the "get-out-the-vote" campaigns. In a free society, no one would deny the right of independent, voluntary action to induce persons to register and vote. Persuasion ranks high in a market system, be it a market for products or for ideas. But, the state has no business inducing otherwise disinterested persons to vote by persuasion or force. Mandatory ballots do not belong in an open society, for the right to choose includes the right not to choose. Moreover, those who decline to vote often do so because of apathy or disinclination for whatever reason. An apathetic person is not likely to cast a reasoned ballot and too often he will be swayed by the demagogue who promises bread and circuses funded by robbing those who cannot defend themselves (with a healthy cut of the swag for himself).
(c) An effective formal protest vote. In addition to adequate space for write-in ballots under each office, the voters' complete choice norm requires a means of casting a formal protest vote. At least one additional line should be added to each ballot under each position to be filled, bearing a legend "None of the Above Is Acceptable," "Neither of the Above Is Acceptable" or some similar statement. Thus, an elector who desires to vote and not forego his franchise, who desires not to write in a specific name for the office, and who desires to register a protest against the listed organizational candidates thrust upon him ought to be able to have his choice formally counted. For most of us, exercise of the franchise constitutes one of the most serious chores obligatory upon a citizen; we hate to waste our ballot upon unqualified and unlovely individuals, on the lesser of two evils (the lesser of two evils is still evil), or upon a blank line. We should not be compelled to pull a name out of the air as qualified for the position, particularly in the situation where some esoteric political offices need specific talents and constitutional requirements which we may not know, or which may or may not attach to the write-in candidate of our choice. The immediate and salutary effect of this change in the law will be to immensely improve the quality and character of candidates offered to the public by both major and all minor political parties. Hacks will be deterred because neither Republican nor Democrat will wish to run a race where the Protest Line secures a large number of votes.
Furthermore, such a rule will improve the calibre of candidates for nonpartisan elective offices. Often positions find incumbents running unopposed, as demonstrated by the normal race for judicial positions. Now, the unopposed incumbent has a very real shadow over his shoulder: he runs against his record, somewhat akin to the so-called Missouri system. But, better than the Missouri system, the complete choice eases the means by which additional candidates can gain ballot consideration, either by listing or by running as write-in candidates. In the simple Missouri system, the candidate runs against his record, with no chance of live opposition. We all recognize that the most devastating weapon for improvement of candidates are other qualified candidates for the same position, candidates who hold divergent political and social views.
The mere addition of a protest line to the ballot performs no function other than solacing the disgruntled resident of the state unless the protest votes carry weight. Now we'll consider ways of making a protest effective.
(d) An effective abolition vote. To this point we have printed a ballot with the following elements: listing (with ease of access) of all declared candidates who meet minimum requirements; addition of a line or lines for write-in votes; addition of a formal protest line where one may indicate that all candidates listed are "unacceptable." One further ingredient provides greater range to the alternatives offered to the voter: an effective abolition vote, whereby the elector can register not mere dissatisfaction with the officeholders seeking election but with the concept of the office itself. If I do not believe that a county assessor performs a viable governmental function, I ought, at each election where the office appears on the ballot, to be able to register my disdain and effectively suggest that the office be vacated and the functions discontinued or returned to the free market. The law should afford further protection to the voter by permitting him to refuse to vote for one or no offices at all, and by providing that such a refusal shall not affect the outcome. In other words, an appropriate franchise must countenance abstention.
Immediate reaction to the abolition vote will stress the argument that such power in the people might destroy government. If the majority of the individuals in a given territory really do decide that they should live without a formal government (not a likelihood in this day and age), why should a minority forcefully hinder that choice? After all, we have been told since childhood that majority rule constitutes the real thing, the essence of the democratic system. If it does reveal seminal values, then shouldn't the electorate be able to judge the very system and its continued existence by use of this tool?
More likely, the use of the abolition vote will appear as a threat to the currently untrammeled power of "statesmen" to seek election on a platform of pious hopes and pipe dreams and then to gull and savage the electorate to their own advantage for several years. With the ever-present threat of abolition of an office rides the certainty that the occupant of the office will be somewhat more circumspect in his attitude and behavior, and somewhat more attentive to the affairs of the day and the wishes of the people.
Further, the abolition ballot will encourage selective discontinuance of government functions which are outmoded, outdated, obsolete and unnecessary. In some areas police functions are performed by overlapping units, as where a county and a metropolitan police force occupy the same territory. Usually one could do without the county sheriff or the city police chief and erasure of one office might lighten the tax burden on the citizenry. The scalpel wielded by this means will cut dead weight from officialdom in similar manner to the peoples' power exercised by the ballot concerning tax increases and quasi-municipal government budgets. Time and again electors have voted down school and sewer district budgets inflated beyond reality and thus returned a measure of fiscal sanity to local government. The abolition line will provide an effective counterpart at the candidate level.
THE KEY: AN EFFECTIVE VOTE
The key to success of the formal protest vote and the abolition vote lies in its effectiveness. Effectiveness will be achieved only if there is a sanction attached to the result of a sufficient number of votes in either or both categories.
(a) The sanction in the abolition vote. The abolition vote gains effectiveness from the obvious sanction explained before: discouraging rampages by elected officials and encouraging selective removal of governmental functions from the public sector and returning them to the private sector.
The threat conveys the message here. If a majority of all electors cast ballots favoring abolition of a position then that position must be discontinued. The requirement protecting the system against willy-nilly destruction is the necessity for a majority of all votes cast in the election (the protest vote, the write-in vote, the votes for listed candidates, and the abolition votes). If the electorate thus favors repeal of the office, no one should countenance continuance.
Consider the obvious argument against: the abolition vote unravels the constitutional fabric of the nation. Nonsense! If we favor majoritarianism, then the absolute majority of all who care to vote may excise any office at any time. After all, the right to revolution is retained explicitly or implicitly in many state constitutions, simply because the United States of America was formed by revolution against an overbearing foreign authority. For example, Article I, Section 1, Oregon Constitution, declares:
Section 1. Natural Rights Inherent in People. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper. [Emphasis supplied.]
The New Hampshire Constitution, Part I, Article 10 (Right of Revolution) declares in like vein:
Government being instituted for the common benefit, protection and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, the public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. A doctrine of non-existance against arbitrary power, and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
Historical fact informs us of the unlikelihood that any elected official will concede the uselessness of his own office, nor will he desire to incur the wrath of fellow officeholders by suggesting that their offices perform no useful function. Therefore, if the increase of government intrusion into our lives is to be discouraged and arrested, it must be accomplished by the people acting in concert, exerting the fundamental right to limit the state to its proper function: administration of common justice, and the prevention of force and fraud.
Those who assert the Constitution as a defense against the abolition vote concept misread history and that document. The mere fact that some person or group in centuries past dictated a form does not endow that form with lasting value. That which has value must be measured in relation to the people it serves. What has value at one point in time may lack it in other days. We can learn from the past but must not be enslaved by ancient ideas lacking content. Can one really accept the premise that because a state constitution enacted by fallible men in 1859 determined that the state required a superintendent of public instruction to be elected by popular vote, that in 1974 citizens of that state, unborn at the time of the constitution, are bound forever to such an office and cannot abolish it by popular ballot?
The opponent might retort that constitutions provide methods for amendment, and laws can be altered by legislative assemblies. True, but not decisive. Amendment procedures normally are cumbersome things, hedged about in favor of the status quo and the existing political apparatus. The same rebuke applies to laws; anyone vaguely interested in civics will recognize the recent difficulty (and eventual failure) in dismantling the Office of Economic Opportunity, a most useless boondoggle. Once an office comes into existence, it displays a very dogged tendency to stay in existence—nay, fight for its very life like a threatened soul—unless the electorate takes a hand to cut it adrift. Surely, no fair-minded person can oppose populism, placing the ultimate power to govern in the hands of the governed, and that is precisely what the addition of an abolition vote line does to the franchise. The mere fact that the electorate may have another means of accomplishing the same end (amendment, repeal of laws) should not destroy the efficacy of the system which encourages maximum use of the franchise.
(b) The sanction in the protest vote. An effective protest vote demands less obvious sanctions and greater insight into the nature of political man. The mere addition of a protest line to the ballot adds little but emotional solace to the protesting voter.
Initially, a protest vote must be counted, and it must count for something. Like a write-in vote, a protest vote must be granted identical official publicity when the results of the election are published.
Secondly, the protest vote must be able to affect the outcome of an election if sufficient quantities are cast. Let us ponder the possible results under the proposed system and generate a few basic rules:
(1) If the abolition vote line receives the majority of all votes cast for the office (votes for listed candidates, votes for write-in candidates, votes for abolition, and votes for protest), the state must abolish the office and it will stand vacant until the office is recreated by the people at a regular election.
(2) If a listed candidate or a write-in candidate receives an absolute majority of all votes cast for the office, the result will follow as now: that person will be deemed elected to hold office for the specified term.
(3) If a listed candidate or a write-in candidate gains a plurality of all votes cast, but not a majority, or if the protest vote line or the abolition line receives a plurality of all votes cast, but not a majority, the present rule would declare the candidate receiving the greatest number of votes the winner. Such a norm denies efficacy to the protest and abolition votes which manifest discontent with the candidates, the office, or both. Therefore, in order to grant effect to the discontented voters, a different rule should apply.
A better decision would be to treat the election as void, place the burden of filling the office during the interim between the present election and the next general election upon an appointing committee, and ascertain that the interim appointee cannot use his service as a power base for satisfying personal ambition in the political realm.
Avoidance of the election does not force vacancy in the office nor hindrance of governmental functioning. The law should declare an election without a majority void merely to assure that all protest and abolition votes receive some weight and that no undesirable candidate receives more than his due; if a candidate cannot poll more than an absolute majority of all votes cast, he does not merit election and the wages of his office.
Once electorally voided, the office appears empty. One possible solution would provide that that condition continue. However, such a result appears disadvantageous where the majority did not vote to abolish the office. De facto abolition of the office, at least on a temporary basis, would result, thereby weighting the abolition vote more heavily than justified. Moreover, one cannot assume that protest voters intended that the office become and remain vacant; a protest vote merely indicates a disinclination to vote for the available candidates.
Another possible solution would reward an ineffective and unworthy candidate by granting the winner of a plurality the office. As suggested, such a solution belittles the protest and abolition votes.
Still another possible solution would force a second election. Cost and efficiency in government militate against this offer. All too often, redundant elections take place in matters affecting measures such as tax bases or bond issues; ordinarily, the electorate votes down a money issue, and the political apparatus—those who favor the passage of money bills normally control the electoral processes—continues to call special election after special election until finally the taxpayer-voter is weakened into acceptance of the proposal.[7] Repeated elections accomplish the purposes of the proponents of an issue, but cost the taxpayers a great deal of money without a fair result. Once an election receives final determination, the result should stand for a period of at least two years without interference. A general election every two years harmonizes with common practice in the United States, accords with good sense and allows stability to government without needless interruptions.
Assuming rejection of the solutions offered, and assuming that the office ought to be filled in the interim period of two years until the next general election, recourse to the appointive process requires consideration. Normally the state and Federal constitutions provide the means by which an elective office shall be filled in the case of vacancy by death, disqualification, or resignation. Ordinarily, appointments become political, tinged with the philosophy of the appointing officer, often with little in the way of checks and balances. If the appointment requires the concurrence of another official or body (e.g., appointment of Federal judges by the President with the advice and consent of the Senate), the recent past bears witness to the political manipulations which transpire, particularly when the appointing official maintains affiliation with one major political party and the acquiescing body is predominantly controlled by the opposition. The public loses, being treated in the ordinary case to political hacks capable primarily of looting the populace and the public treasury for their own benefit. Any time a person spends 30 years in public service, entering as a penniless drifter and emerging as a millionaire 25 times over, one wonders at the purpose and place of public officials in the scheme of things.
Imbued with the belief that control ought to reside as closely as possible with the voters-citizens, let us opt for placement of the appointive process at the lowest level of elective office: the precinct workers. Any vacancy ought to be filled by majority vote of a convention of all precinct committeemen and committeewomen of each party, two persons from each party from each precinct within the unit from which the vacant office is chosen.
Clearly, one could think of occasions when some of the precinct offices will be vacant because of death, disability, lack of candidates, or because the voters voted to protest or to abolish the precinct office. However, one cannot conjecture a situation where all such offices in the county, district, city or state would be vacant at the same time.
Again, an objective observer might also claim that voting will emerge along party lines, but that supplies no answer because the taint of political favoritism will certainly appear no greater at the precinct level than from the governor's chair. By and large, the precinct people will recognize the mood of their constituents and fulfill their duty in a fair and meaningful manner.
Eligibility for the vacant office forms another salient issue. The precinct convention ought to be free to choose from the entire array of eligible individuals existent in the district or unit. The convention may, if it desires, choose the next ranking subordinate official, if any, to discharge the duties of the office in an acting capacity, at no increase from his former remuneration, until the next general election only. Thus, staff persons from the state treasurer's office or the county commission could assume the job for two years while receiving salary based on their staff positions.
Further, the convention could appoint the candidate receiving the plurality of the vote for that office to serve for the limited period until the next general election. Since rewarding losers politically seems odious, the law ought to prohibit one who did not receive a plurality from taking the office.
In the absence of the two choices suggested, the convention could appoint any competent, qualified person to serve in the office until the next general election.
No matter who the convention appoints to carry out the duties and functions of an erstwhile vacant office, the abolition and protest voters will not be effectively franchised unless something prevents the use of an appointive office as a stepping stone to increased power, patronage, and prestige. In some instances, effective deterrence will result from the two-year limitation on the office. In others, reality demands greater controls. For this reason, the appointee must be barred from succeeding himself in that particular office for a period of four years, and must receive no increase in salary or powers during his interim term. One might consider prohibiting such an interim appointee from seeking any political office for four years, but such a limitation appears unduly onerous and likely to deter qualified public servants. Four years seem to represent an ideal limitation period, for it does not unduly hamper political plans yet it does effectively limit use of the office as a mere steppingstone to further political officeholding.
(c) Primary elections. Primary elections pose special problems, but not insurmountable ones.
In regard to the abolition vote line, it could appear on the ballot in primary elections but couldn't be effective in those states where voters not registered in the major political parties are effectively disenfranchised, for such voters would not be given a choice on continuance or discontinuance of the office. Moreover, where voters can cross over party lines in a primary, a distortion might result, with Democrats voting in the Republican primary to abolish an office. Therefore, the abolition vote should be discarded during primary campaigns.
On the other hand, the protest vote ought to remain on the primary ballot: easy access to the electorate, the right to write-in candidate choices, and the right to protest all stay viable during a primary election.
One might conjure up the vision of a primary campaign where several candidates seek the same office and a majority appears unlikely. In such a case, the party precinct people should choose the candidate to represent the party at the polls. Any disgruntled also-rans could seek election during the general election as independents or write-in choices. If the party nominees offered to the party voters during the primary elections do not sway the electorate, the protest vote becomes the most powerful weapon to encourage the presentation of good, sound offerings. A strong candidate will win an absolute majority; a weak candidate ought to at least face his precinct people before he can represent the party in the general election.
(d) Multiple-candidate contests. Multiple-candidate districts present an interesting, if academic, twist to the problem (academic because of the trend toward single-member districts). In such a situation, the protest vote will not impede elections if the total votes cast are divided by the number of positions in order to determine a majority, and if the protest and abolition votes are multiplied by the number of vacancies to be filled. The identical rules should then apply as in elections with the single-member districts.
Presumably, enactment of these proposed reforms will satisfy members of at least one active organization offering truly creative thinking in this area, the League of Non-Voters. These advocates decry the lack of complete range of choice in the polling place and suggest abstinence from voting until curative measures rectify that omission. The plan proposed tenders just such a cure.
The initiative process remains the sole effective means of attaining a place on the ballot for persons to consider and vote upon a fair choice amendment to the respective state constitutions. One can hardly expect elected officials with their vested interest in re-election, or government employees with their positions to maintain, to introduce, support, or lobby for such radical legislation, yet referral to the people forces just such action.
Indeed, experience demonstrates that the establishment politician will combat any attempt (such as that embodied in Appendix A) with all the force and guile at his disposal. [An exception to the rule, California Assemblyman William Campbell (R-Whittier) recently introduced a bill to put "None of the Above" on the ballot. He doesn't expect it to get out of committee. —Ed.] This prospect should encourage proponents of a complete choice amendment to take scrupulous care in following every nuance of the election laws attendant upon each particular state, not to mention the absolute need to plan the campaign with care and to fund the endeavor with the firm expectation that tedious and time-consuming litigation will result as the threatened statists unveil all manner of armor in defense of the status quo.
Different time tables apply to different states. The Oregon research organization[8] anticipates an appearance of the initiative on the 1976 general election ballot. Hopefully, other states will join our throng and will labor to coincide with that time table. What a way to celebrate the 200th anniversary of the Declaration of Independence: declare independence from restrictive political rules and entrenched party control of the state!
CONCLUSION
Open access to the ballot, free opportunity to write in the names of desirable candidates, and a chance to protest or to abolish the office coalesce to offer the beleaguered electorate a much better choice in the polling booth than he presently encounters. The voter's complete choice presents a meaningful franchise.
Ridgway K. Foley, Jr. is a partner in the law firm of Souther, Spaulding, Kinsey, Williamson & Schwabe and is a member of the Oregon State Bar, Multnomah County Bar Association, American Bar Association, and the American Judicature Society. He holds a J.D. degree from the University of Oregon Law School (where he was editor-in-chief of the Law Review during 1962-63) and a B.S. in political science from Lewis and Clark College. He is a frequent contributor to The Freeman and has also published in a number of law reviews.
NOTES AND REFERENCES
[1] See, e.g., Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed.2d (1968).
[2] See, Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed.2d 92 (1972).
[3] Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944).
[4] Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939).
[5] Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct 125, 5 L. Ed.2d 110 (1960).
[6] See, Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed.2d 663 (1962).
[7] The uncommon and dishonest pressures which are applied to passage of such measures merit a separate investigation and discussion. One might consider whether the political apparatus ought to be controlled by the proponents of given issues and of an identical ideology.
[8] Research Committee For A Fair Choice, P.O. Box 1649 Federal Station, Portland, Oregon 97207. Attention: G.B. Leitch.