The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
With five of the last seven Republican presidential nominees refusing to ever endorse Donald Trump for president (and the speaker of the House undecided), the GOP is facing its biggest rift since 1912.
Just four years after he received 60 million votes for president, Mitt Romney is leading the effort to, as the Washington Post reported, “draft an independent presidential candidate who could keep Donald Trump from the White House.”
Things were easier in late June 1912 when delegates loyal to Teddy Roosevelt stormed out of the Republican Convention—and set up camp a mile away in Chicago’s Orchestra Hall. Under a giant portrait of the former president, the rump convention nominated the 53-year-old Roosevelt as a third-party candidate against incumbent William Howard Taft and soon-to-be Democratic nominee Woodrow Wilson.
Addressing the delegates (the first time in history that a presidential nominee accepted the honor in person), Roosevelt thundered, “If you wish me to make the fight, I will make it, even if only one state shall support me.”
Actually, the former Rough Rider did better than that—carrying six states (including Pennsylvania, Michigan and California) with 88 electoral votes. But Wilson (435 electoral votes) swept to victory over the divided Republican Party with the beleaguered Taft only winning Vermont and Utah.
With apparent ease, the newly created Progressive Party appeared on the ballot in all 48 states. Histories of the 1912 campaign like Sidney M. Milkis’ Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy do not even mention ballot access as a problem confronting the Bull Moose brigades.
What a difference a century makes.
While today’s maverick Republicans lack a candidate (let alone someone as charismatic as the first Roosevelt), they also face daunting challenges in even getting on the ballot. This is why Michael Bloomberg felt that he had to decide by early March—long before the identities of the nominees were even known—whether to pursue his long-nurtured presidential ambitions.
Already 38 electoral votes are off the table. An independent presidential candidate wanting to run in Texas would have to have filed petitions with 79,939 valid signatures…last week. Another 15 electoral votes will vanish on June 9 unless the Republican insurgents somehow come up with a daunting 89,366 signatures in North Carolina.
By the time Paul Ryan thumps his gavel on July 18 to signal the start of the Trump convention, filing deadlines will have also passed in Delaware, Florida (119,316 signatures needed), Georgia, Illinois, Indiana, Nevada, New Mexico, Oklahoma and South Carolina. That, by the way, adds up to 159 electoral votes, which is exactly how much support Bob Dole won in the 1996 election.
So if a modern-day Teddy Roosevelt bolted the Republican Convention, he would enter the 2016 campaign unable to even compete in 11 states with nearly one-third of the nation’s population. Of all the many ways that the two-party system is perpetuated by statute, ballot access rules are among the hardest to justify.
Even in an era of under-funded election administration, there is no conceivable public purpose served by Texas demanding that an independent candidate apply to get on the ballot six months before the election. Okay, there might be a rationale if Texas employed monks—trained in medieval methods—to hand print the ballots as if they were illuminated manuscripts.
While a reasonable number of petition signatures should be required for anyone to appear on the ballot, it seems overly restrictive for Texas to demand the autographs of more voters than there are people in Sugar Land. Or for North Carolina to require more John Hancocks than the population of Asheville.
Even without thumb-on-the-scale ballot access rules, the obstacles standing between a third-party candidate and the White House are formidable. More than anything, Bloomberg’s White House dreams were thwarted by the Twelfth Amendment, which sends an election into the House of Representatives if no candidate wins a 270-vote majority in the Electoral College. In an era of rigid partisanship, it is hard to concoct a scenario in which an independent candidate prevails in the House unless he or she has strong party support.
The anti-Trump crusaders still have to find a credible candidate for a general election campaign. Already, some GOP strategists like Mike Murphy (who ran over-funded Jeb Bush’s Super PAC) are talking about merely running a spoiler candidate in Ohio, Colorado and New Hampshire—three swing states with easy ballot-access rules. Such scaled-down ambitions would mean that an anti-Trump Republican would not qualify for the fall debates since to participate a candidate must have a theoretical path to 270 electoral votes.
There is a certain sad irony in the way that the Republican establishment lost control because an excess of democracy in the primaries produced a Trump-ian takeover. Now the remaining GOP holdouts may be thwarted in November by a lack of democracy in getting on the ballot.
Walter Shapiro is an award-winning political columnist for Roll Call who is covering his tenth presidential campaign. He has also worked for two newspapers (USA Today and The Washington Post), two news weeklies (Time and Newsweek), two monthlies (Esquire and The Washington Monthly), and two online magazines (Salon and Slate). He has also been a columnist for Yahoo! News. He is the author of “One-Car Caravan: On the Road with the 2004 Democrats Before America Tunes In,” a chronicle of the early skirmishing for the presidential nomination, published by PublicAffairs in 2003. Shapiro teaches a political science seminar on the news media and the 2012 campaign at Yale. And he is working on a book about his con-man great uncle who cheated Hitler. He can be reached at email@example.com and followed on Twitter @MrWalterShapiro.