On April 30, news media announced that U.S. Supreme Court Justice David Souter plans to leave the Court, although he will remain for the current term, and until a replacement has been chosen.
Souter has never seemed very interested in the problems of minor parties or independent candidates. Although he wrote the ballot access decision Norman v Reed in 1992, which reiterated that strict scrutiny applies (which means that restrictions on ballot access are unconstitutional unless they are needed for a compelling state interest) later that year he was part of the majority in Burdick v Takushi, which said that strict scrutiny only applies if the burden is severe. The problem with that is that whether a burden is “severe” is utterly arbitrary.
Souter supported debate inclusion for government-sponsored debates in the 1998 case Arkansas Educational TV Commission v Forbes, and he supported fusion in the 1997 case Timmons v Twin Cities Area New Party. But, in his separate dissent in Timmons, he said that the argument that the “two-party system” needs to be protected is a strong argument. He said, “There is considerable consensus that party loyalty among American voters has declined significantly in the past four decades, and that the overall influence of the parties in the political process has decreased considerably (scholarly citations omitted). In the wake of such studies, it may not be unreasonable to infer that the two-party system is in some jeopardy. Surely, the majority is right that States ‘have a strong interest in the stability of their political systems, that is, preserving a political system capable of governing effectively. If it could be shown that the disappearance of the two-party system would undermine that interest, and that permitting fusion candidacies poses a substantial threat to the two-party scheme, there might well be a sufficient predicate for recognizing the constitutionality of the state action presented by this case. Right now, however, no State has attempted even to make this argument, and I would therefore leave its consideration for another day.”
This statement encapsulates all the confusion about the meaning of the term “two-party system” that has permeated the United States for almost sixty years. “Two-party system” was coined in 1911 to describe the British party system. It doesn’t mean a system in which only two parties have any influence or power. It is a descriptive term for a system in which two parties are far larger than all the other parties. Two-party systems exist even when the election laws are not discriminatory, for example as in Canada and Great Britain. The idea that voting rights, or the rights of two political parties to jointly nominate the same candidate, should be sacrificed to uphold a supposedly fragile “two-party system” is wholly illogical.
