This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy." Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law is useful as a means to address the decline of electoral competition in the United States and its consequences for the democratic character of our government. Antitrust law also provides a legal framework for distinguishing between nonpartisan and bipartisan legislation, as the analogy helps distinguish between legitimate regulation of the political process by the state and collusion in restraint of democracy by the two major parties. Part II begins with a discussion of elections' function in a democracy, addressing the lack of electoral competition in the United States and identifying prominent anticompetitive features of American democracy, mainly modem ballot access laws. Part II provides a brief history of ballot access laws in the United States and an analysis of their justification. Part III analyzes the Supreme Court's modem ballot access jurisprudence, starting with the first minor party challenge to a modem ballot access law in 1968 and tracing the erosion of candidates' rights since then. Finally, Part IV sketches an approach to ballot access jurisprudence that offers greater protection to candidates' rights by analyzing ballot access laws according to the principles of antitrust law.
Oliver Hall, Death by a Thousand Signatures: The Rise of Restrictive Ballot Access Laws and the Decline of Electoral Competition in the United States, 29 SEATTLE U. L. REV. 407 (2005).