25

Can an American state ban a political party?

I am mostly envisioning this as "Democrats and Republicans agree to ban a minor party with really evil views," although the discussion of what would happen if one major party tried to ban the other would be interesting. I get that there are various degrees to this, so that ban might include things like:

  • Party X is not allowed to fundraise in the state.
  • Party X's members are not allowed to hold office in the state.
  • Party X's members are not allowed to be employed by the state.
1
  • 13
    This might depend on the state. But in a lot of places in the world, states got around prohibitions of outlawing political parties by arguing that the organization in question only claims to be a political party but is actually a criminal or terrorist organisation.
    – Philipp
    Jun 9 at 14:38
41

A state cannot ban a political party for being a political party, no. This would run headlong into the 1st Amendment so hard it would go viral on TikTok.

There are a number of ways that a majority party (or coalition of parties) could de facto ban a rival political party, however.

  1. Establish thresholds for appearing on the ballot. This happens in Presidential races already, and is part of why Kanye West did not appear as a presidential candidate in all states. There are rules regarding what constitutes a legitimate candidacy, and requiring that a political party demonstrate some modicum of public support before being allowed to register as a political party. This is backwards to how it is usually done, because the obvious end-run around this method is to simply not register, but continue to organize anyway. This is why the Federal Elections Commission, instead, requires you to register as a political party once you've raised or spent a certain amount of money for federal elections.

  2. Declare the party organization/organizers to be criminals. Since political parties can still organize and rally support even if they're not officially on the books or ballot, a more effective strategy is to attack the person(s) doing the organizing directly. Classifying a political party as a 'terrorist organization' is a commonly used example, but the more real-world-common case is simply to arrest opposition leadership. As long as the people you're arresting have actually committed the crimes you're charging them with, and the prosecutions - however convenient - are thus in good faith, this isn't even morally wrong. Not all political parties are seeking power for good reasons, and historical groups like the Nazi Party's "Brown Shirts" did go around committing crimes (usually extortion and assault) in order to advance party goals - arresting these people would hardly be an abuse of power. Going after the leadership of the Black Panther Party, or even Sinn Féin (the political arm of the IRA) is a much less clear cut move.

  3. Suppress their voters. Since #1 and #2 rely on you being able to tell a judge - while maintaining a straight face - that you're not doing either of those things for the purpose of preventing a group of people from gathering/organizing to address the government regarding their grievances, you may find yourself in the position of wanting to de facto ban a political party without going after the organization at all. If there are common traits that likely voters for that political party have, you can simply pass laws that make those traits obstacles to voting. Commonly this is done by requiring government ID to be presented at the polling place (minority populations, in particular, tend to not have access to such ID), literacy tests (which were found to be unconstitutional precisely because they were used for exactly this purpose), poll taxes (ditto), make it illegal to provide relief to those standing in line to vote, whatever you can justify in the name of something else.

  4. Gerrymandering. Finally, if you're in power, and can draw political districts, then you're in a position to simply make the possibility of a rival political party gaining power go away.

What all of these methods have in common, under current U.S. Jurisprudence, is that in order to be considered legitimate, you can't be doing them for the express and sole purpose of eliminating political opposition. It is allowable for that to be a consequence of something else you're trying to do. This standard was upheld by the Supreme Court in October of 2018 in Department of Commerce v. New York:

The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

The "Citizenship Question" was kicked off the U.S. Census for failing this exact standard, but the standard is generally very, very deferential to the government's claims.

15
  • 15
    For #3 if for example an anti-war opposition is forming and a lot of those people are hippies (smoking weed), if you make marijuana illegal you can crack down on them whenever you feel like it and arrest anyone from their high-profile individuals to the everyday lowkey supporter. And since you've already barred prison inmates from voting AND felons from voting even after release their voting power can easily be reduced at will. And since there will be weed at any of their gatherings your police force can crash them as well
    – Hobbamok
    Jun 10 at 8:31
  • 2
    @Hobbamok In the case of anti-war opposition, the historical method has been #2, actually. The Federal government, in those cases, would tend to arrest folks under sedition statutes. Jun 10 at 10:52
  • 1
    You could add debate lockouts to #1. At least for high-profile offices (mostly just President/VP), there will generally be a number of televised debates. Both of the 2 major parties in the US have made efforts to ensure that their candidates are the only ones who ever get to appear in these debates. It's very rare to have any 3rd party candidate on the stage, even in the primary debates. (Bernie Sanders was one recent example, but only because he ran as a Democrat despite being registered Independent. Before that, we had Ross Perot, and that's about it...) Jun 10 at 13:44
  • 4
    @DarrelHoffman Debate lockouts aren't a function of the government. The government isn't responsible for hosting debates, third parties - often journalism orgs, nonprofits, civic groups, and the parties themselves host these. As such, it's not part of "what can a state government do." Jun 10 at 14:04
  • 1
    @WilliamWalkerIII When democracy is under threat, the distinction between what the government wants and what private media choose to do may get increasingly blurry. Maybe private media will choose not to invite the opposition, because they know that if they do, the government will make their life difficult. This happens.
    – gerrit
    Jun 10 at 15:41
15

Yes, and they already have

This isn't universally applicable to all political parties, but the answer is simply Yes, because Texas already has done so, banning communists in the 2nd and 3rd ways described in your question.

The law is given here: https://statutes.capitol.texas.gov/Docs/GV/htm/GV.557.htm

As such, you can understand why this is irksome for The Communist Party of Texas.

17
  • 5
    This answer is misleading because it does not reproduce the extremely inaccurate definition of "communist" used in this statute. The definition includes everyone who advocates violent overthrow of the government regardless of their political goals, or nonviolent overthrow by some unlawful means followed by replacement with a commun6 government. The law therefore does not exclude any member of the Communist Party of Texas unless they advocate one of those things.
    – phoog
    Jun 10 at 4:20
  • 5
    I've seen that petition. Its existence does not imply that the Communist Party is banned, and in fact the law does not ban the Communist Party, as as much as many people in Texas seem to want to think that it does. Rather, the law is a political stunt. Banning the Communist Party is popular with some voters, but completely unconstitutional, so the legislature made a law that effectively said "a communist is someone who commits sedition; no such communist may run for office or work for the government."
    – phoog
    Jun 10 at 5:42
  • 11
    You could just as well make a law seemingly banning Buddhists from government by defining Buddhists as those who commit acts of bribery. The correct course of action for a Texas communist is to run for office on the Communist Party ticket, and, if anyone tries to prevent it because of that law, to take the person to court with the argument "although I am a member of the Communist Party, I do not fit the definition of 'communist' in this law, so the law doesn't apply to me."
    – phoog
    Jun 10 at 5:55
  • 10
    @phoog While this is true, the law makes being a communist effectivelly a crime, and people running in the Communist Party ticket having to explicitely declare they are not. This is not a requirement if you run on the Republican Party ticket, and neither in the Democratic Party (yet). It inverses the pressumption of innocence, and it actually pursues the target of criminalizing a whole political party just for being members of it.
    – Rekesoft
    Jun 10 at 12:31
  • 2
    @Rekesoft "criminalize" means "to make criminal." Maybe "criminalize" can be used that imprecisely where you are from, but as far as I'm concerned the only way to criminalize a certain act is to pass a law making it a crime. A mall cannot do that, nor does a civil prohibition. This law also makes no mention of terrorism; sedition and terrorism are distinct crimes. While "common parlance" may admit a certain degree of imprecision, law does not, and in politics imprecision is usually a tool of the disingenuous. (That is not an accusation but rather advice to be wary of spin.)
    – phoog
    Jun 11 at 15:10
1

One specific development which has been accused of putting up a barrier to third-party participation in presidential elections in the US, is the management of the televised debates.

These were which went from being controlled the League of Women Voters, which was non-partisan, to being controlled by the Commission on Presidential Debates, which while nominally non-partisan, is in practice bi-partisan, as it was founded jointly by the chairs of the RNC and DNC.

The CPD has been criticized for effectively setting the bar for participation such that third parties are prevented from getting the recognition that would allow the public to learn about them and enable their growth.

Attempts by third parties to challenge this system in court, so far, have failed.


Regarding State and Local politics:

It may vary by state, but at least here in NYS, it is actually fairly easy for a third-party candidate to get their name on a state and local ballot. The substantial barrier is applying on time with a modest number of signatures, which a few hundred volunteers can gather with a focused effort, in about a month. I have participated in this kind of effort, and would say, anecdotally, that nearly half of voters are supportive, in principle, of the idea of having more choices at the ballot, even if they might not go on to vote for the minor party.

7
  • 5
    Televised debates only tend to matter for the presidential elections and most other races have no need for one. There are much larger barriers to the presidential election than a televised debate.
    – Joe W
    Jun 9 at 18:17
  • 2
    @Joe W, thanks for the response -- although IMO the Green and Libertarian parties would disagree with you, considering they have repeatedly tried to go to court over the matter
    – Pete W
    Jun 9 at 18:18
  • Again as I have said they only tend to matter for a single race which is the presidential one. You don't see many televised debates for local and state elections.
    – Joe W
    Jun 9 at 18:20
  • 2
    That single race, though, is the headline event, which drives most people's knowledge of politics.
    – Pete W
    Jun 9 at 18:23
  • 2
    You fail to notice that there is no need to ban a third party. The electoral system already makes very difficult for third parties to emerge. Add to this the biased media and you get the current situation.
    – FluidCode
    Jun 9 at 19:13
0

No. But from personal experience, a group of legitimate individuals can claim that the people representing the party are fraudulent or illegitimate. In California, a party first registers with the Secretary of State, expressing intent to qualify for the ballot. A group of contacts for the party is required to be the liaison with the SoS. If the individuals do not keep in contact with the SoS or are sketchy (in this actual case, an international cult run by a con man using the name in fundraising), the SoS can qualify a new set of contacts. In the real case, this was done because the group had not actually done voter registration or other electoral work for years. But, taking the issue of their illegitimacy to court was also considered.

3
  • Can you give a link to a citation for this? It sounds like you’re describing a real thing that took place, so you should be able to find a link to a news story or Wikipedia article describing this. Without that, though, this is a very vague answer
    – divibisan
    Jun 10 at 17:00
  • sos.ca.gov/elections/political-parties/…. It was pre 1988 Green Party, particularly in San Francisco. And no, no one wrote about it except some pre-web small papers. Nobody died, though a few people lost a lot of money. Unless I remembered the cult leader's name, there is nothing about it. And Wikipedia does not accept completely original accounts (except maybe in biographies); there has to be an outside news source.
    – danak
    Jun 11 at 15:35

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .