HOW RFK’S RECENT COURT BATTLES TO GET ON (AND OFF) THE BALLOT EXEMPLIFY WHY A THIRD-PARTY CANDIDATE WILL NEVER WIN THE PRESIDENCY

By: Sophia Antonio, Volume 109 Staff Member

Former presidential candidate, Robert F. Kennedy Jr. (RFK), dominated the summer news cycle with bizarre controversies. [1] RFK dropped out of the presidential race, where he ran as a third-party candidate, on August 23rd and endorsed former President Donald Trump. [2] RFK stated he decided to drop out because he could win and he worried he would be a spoiler for former President Donald Trump in battleground states. [3]

But RFK was never going to win the presidency. [4] This is not necessarily because he was not a popular option, in fact, he was polling drastically well for a third-party candidate. [5] America’s two-party system has evolved to completely curtail the ability of third-party candidates to mount a successful presidential campaign. [6] One of the massive hurdles a potential third-party candidate must overcome is actually getting on the ballot in the first place. [7] RFK’s difficulty getting both on and then off the ballot this election season exemplifies why third-party and independent candidates will never achieve the presidency.

I. WHY IS IT SO HARD TO GET ON THE BALLOT AS A THIRD-PARTY CANDIDATE

The modern two-party American system was not always so. Many of the founding fathers abhorred political parties. [8] In early American Presidential elections, representatives from multiple parties ran. [9] The Twelfth Amendment requires a presidential winner to have a majority of electoral votes. [10] This has promoted a two-party system so a winner may claim a broad electoral mandate. [11] Each state, except for Maine and Nebraska, [12] assign their electors on a winner-take-all system in which the winner of the popular vote gets all the electoral college votes, opposed to an amount proportional to their victory. [13] This discourages voting for third-party candidates because a voter who will be unlikely to win will refrain from voting for the third-party candidate. [14] Additionally, third-party, independent, and no-party candidates struggle to get on the ballot in all fifty states because the various election laws of the fifty states are designed to make it difficult to get on the ballot. [15] Without electoral college and comprehensive state election law reform, it is likely third-party candidates will never capture the presidency.

II. RFK’S BALLOT COURT BATTLES DEMONSTRATE HARDSHIP ON THIRD-PARTY AND INDEPENDENT CANDIDATES

a. RFK’S ATTEMPTS TO GET ON THE BALLOT

Third-party candidates must abide by complex state laws and regulations to get on the ballot. RFK’s struggle to get on the ballot in Maine demonstrates these difficulties. The Federal District of Maine held an independent or third-party candidate for president is properly restricted from collecting signatures to get on the ballot at polling locations during party primary races. [16] Collecting signatures at polling places is attractive because non-party candidates must collect between 4,000–5,000 signatures from registered voters and because voters at polling places are confirmed registered. [17] The court argued that the party and non-party candidates alike each get one election they are allowed to collect signatures at polling sites. [18] However, candidates for party primaries must only obtain 2,000–2,500 signatures to appear on the ballot. [19] The Maine state primary election, the one RFK was allowed to collect signatures at, was held only five weeks before the close of his signature collection window. [20] Maine’s Secretary of State’s had a valid concern about RFK influencing voters by collecting signatures at the polling locations during the presidential primary. [21] However, it still created a financial hardship for third-party candidates compared to party candidates, who spent less money obtaining their required signatures because they have only half the signatures to obtain. [22] RFK made it onto Maine’s ballot in the end. [23] But this case demonstrates the difficulty in complying with election law in all fifty states to get on the ballot at all. [24]

RFK struggled to get on the ballot in many states due to varying regulations and rules in state election law. [25] However, RFK was blocked from getting on the ballot in New York and Georgia because of a relatively unknown constitutional provision. [26] The Twelfth Amendment of the Constitution requires vice president and presidential candidates be from separate states. [27] However, RFK and his running mate are both California residents. [28] This led to both a federal [29] and state [30] case excluding him from the ballot in New York. 

b. RFK’S ATTEMPTS TO GET OFF THE BALLOT IN SWING STATES

Since withdrawing from the presidential race on August 23rd, RFK has stated that he will remove himself from the ballots in battleground states, out of a concern that he may “spoil” the election for former President Donald Trump. [31] The North Carolina Supreme Court allowed RFK to withdraw his name from the ballot, holding that voters could mistakenly vote for him without knowing their vote would not count. [32] The Wisconsin Supreme Court reached the opposite conclusion, in part due to a quirk in their election rules that requires a candidate to remain on the ballot once they petition for access, unless they die before the election. [33] The Sixth Circuit denied RFK’s removal of himself from Michigan’s ballot because it would harm the Natural Law Party, the party RFK was running as a candidate for in Michigan. [34]

The Sixth Circuit also denied RFK’s petition because of concern that reprinting ballots would greatly impede the election process in Michigan, where voters had already cast ballots. [35] The court went so far as to say RFK “seeks to[] disrupt the functioning of Michigan’s elections . . .” [36] The Supreme Court of Wisconsin worried about the possibility that the reprinting ballots without Kennedy’s name would cost taxpayers and create confusion in the electorate about whose ballot counted. [37] Whereas, the Supreme Court of North Carolina held a reprinting of their ballots was allowed under their state law “where practical.” [38]

North Carolina, Wisconsin, and Michigan are three of the seven swing states in the 2024 presidential election. [39] RFK says he wants to remove his name from the battleground ballots he fought to get on [40] because he worries he will spoil would-be Trump votes. [41] Cynics fear RFK is attempting to remove his name to purposefully delay and disenfranchise voters in swing states. [42] Demonstrating disagreement with this idea, one North Carolina Supreme Court justice suggested the state should destroy ballots containing RFK’s name, though admitting hundreds of thousands of ballots have already been sent. [43] The differing reasons given in each of these states for their decisions highlights the complexity and variance of state election law and why third-party candidates are doomed to fail.  

CONCLUSION

While RFK’s presidential election bid has largely become a meme, [44] he was a popular presidential candidate. [45] But without the nomination from a major political party, he was never going to mount a successful bid for president. Third-party candidates could provide more diverse viewpoints more representative of the American public. [46] Can America ever get there? 

[1] Emma G. Fitzsimmons, Robert F. Kennedy Jr. Admits He Left a Dead Bear in Central Park, N.Y. Times (Aug. 4, 2024) https://www.nytimes.com/2024/08/04/us/politics/robert-f-kennedy-jr-bear-central-park.html?searchResultPosition=1 [https://perma.cc/6DPX-C5AF] (detailing Robert F. Kennedy’s admission that he placed a deceased bear cub in Central Park in 2014); Jonathan J. Cooper, Robert F. Kennedy Jr. is Being Investigated for Collecting Dead Whale, AP News (Sept. 19, 2024) https://apnews.com/article/rfk-jr-kennedy-whale-investigation-09c494d8164c6f9bde9ece39637ea4d3 [https://perma.cc/EPW9-R4V7] (reporting on the recent resurfacing of a video recorded in 2012 of Kennedy’s daughter, Kathleen Kennedy, describing driving five hours in her father’s car with a whale head strapped to the roof decades earlier); Susanne Craig, RFK Jr. Says Doctors Found a Dead Worm in His Brain, N.Y. Times (May 8, 2024) https://www.nytimes.com/2024/05/08/us/rfk-jr-brain-health-memory-loss.html [https://perma.cc/DQV8-YTYL] (reporting on RFK’s disclosure about medical professionals finding a worm in his brain and him arguing he would win the presidency with a “six-worm handicap”).

[2] Aaron Pellish & Edward-Isaac Dovere, RFK Jr. Suspends Presidential Campaign and Endorses Trump, CNN (Aug. 23, 2024) https://www.cnn.com/2024/08/23/politics/rfk-jr-suspends-campaign/index.html [https://perma.cc/TVL3-9S2X].

[3] Id.

[4] See Shane Goldmacher & Nicholas Nehamas, R.F.K. Jr. Raises New Uncertainty for Biden in Michigan, N.Y. Times (Apr. 19, 2024) https://www.nytimes.com/2024/04/19/us/politics/rfk-biden-trump-michigan.html?smid=nytcore-ios-share&referringSource=articleShare [https://perma.cc/765R-VWTE] (reporting on President Biden and former President Trump’s concerns that RFK’s candidacy could cost them the race in Michigan, however, never describing him as a being able to win because he was polling at 9% compared to their 40%+). 

[5] Shane Goldmacher & Neil Vigdor, R.F.K. Jr. is 2024’s X Factor, New Polls Show, Fueled by Young Voters and Social Media, N.Y. Times (May 14, 2024) https://www.nytimes.com/2024/05/14/us/politics/kennedy-battleground-poll.html [https://perma.cc/YRM6-RB8K] (reporting that RFK was polling better than “any third-party candidate has in decades . . .”).

[6] Sarah Pruitt, Why Does the US Have a Two-Party System?, History (Jan. 12 2024) https://www.history.com/news/two-party-system-american-politics [https://perma.cc/4PZK-LWNY] (explaining that the winner-take-all system voter system incentivizes two political parties because a third party is never in a realistic spot to win). 

[7] Jarrett Renshaw, How US States Make it Tough for Third Parties in Elections, Reuters (Jan. 18, 2024) https://www.reuters.com/world/us/how-us-states-make-it-tough-third-parties-elections-2024-01-18 [https://perma.cc/RG2P-6HEJ] (discussing how the Republican and Democratic presidential candidates automatically get on the ballot, while third-party candidates have to obtain a high number of signatures of registered voters in that state during a period of time specified by state law). 

[8] Sarah Pruitt, The Founding Fathers Feared Political Factions Would Tear the Nation Apart, History (Sept. 29 2023) https://www.history.com/news/founding-fathers-political-parties-opinion [https://perma.cc/BQB8-L6NH] (explaining George Washington’s warnings about political factions).

[9] Rosemarie Zagarri Political Parties in the Early Republic, Mapping Early Am. Elections (2019) https://earlyamericanelections.org/essays/02-zagarri-political-parties.html [https://perma.cc/8PH7-2KCQ] (discussing early political party formation).

[10] U.S. Const. amend. XII.

[11] Paul R. Abramson, Third-Party and Independent Candidates in American Politics: Wallace, Anderson, and Perot, 110 Pol. Sci. Q. 349, 352 (1995).

[12] Split Electoral Votes in Maine and Nebraska, 270 to Win, https://www.270towin.com/content/split-electoral-votes-maine-and-nebraska [https://perma.cc/M7WU-RPFK] (explaining how Maine and Nebraska allocate two electors to the state vote winner and one electoral vote to the winner of each district, creating the possibility for split electoral votes).

[13] Abramson, supra note 11, at 352.

[14] Id. at 353.

[15] Brian L. Porto, The Constitution and the Ballot Box: Supreme Court Jurisprudence and Ballot Access for Independent Candidates, 7 BYU J. Pub. L. 281, 285–86 (1992) (providing a history of state statutory requirements designed to make it difficult for third-party and independent candidates to make it on the ballot).

[16] Kennedy v. Bellows, No. 2:24-cv-00052-JAW, 2024 WL 1697921, at *14–15 (D. Me. Mar. 4, 2024).

[17] Id. at *1, *14.

[18] Id.

[19] Id. at *1.

[20] Id. at *1, 14 (stating that the Maine state primary was on June 11, 2024, and the deadline to submit signatures for a non-party candidate was July 25, 2024).

[21] Id. at *15 (explaining how the rule promulgated by Maine’s Secretary of State promulgated the rule banning non-party candidates from collecting signatures at polling places during the presidential primary out of a concern that they would be a potentially influence the vote, against Maine law, since the candidates would be running in the same general election race).

[22] Id. at 14 (breaking down the high cost of collecting signatures). In fact, the cost of litigating to get on the ballot and collecting signatures is so high, it remains a prohibitive factor for third-party candidates. See Domenico Montanaro, RFK Jr.’s Poll Numbers Remain High. What Explains this – and can it Last?, NPR (Nov. 18, 2023) https://ssir.org/articles/entry/strengthening_democracy_by_embracing_a_multi_party_system [https://perma.cc/MT2X-ZZNY] (arguing RFK is an unusual third-party candidate because of his wealth and his famous political family).

[23] Emma Davis, RFK Jr. Withdraws from Maine’s Ballot, Me. Morning Star (Aug. 27, 2024) https://mainemorningstar.com/briefs/rfk-jr-withdraws-from-maines-ballot [https://perma.cc/X6T3-L6JR].

[24] Compare Kennedy v. Bellows, No. 2:24-cv-00052-JAW, 2024 WL 1697921, at *14–15 (D. Me. Mar. 4, 2024) (asserting there was not enough difference between no-party candidates and party candidates to change Maine law), with Team Kennedy v. McGrane, No. 1:24-cv-000083-BLW, slip op. at 3 (D. Idaho Sept. 4 2024) (finding requiring third-party or independent candidates being asked to name their vice presidential pick before the major parties constitutes unequal treatment).

[25] Nick Mourtoupalas et al., Where Independent and Third-Party Candidates are on the Ballot, Wash. Post (Sept. 11, 2024) https://www.washingtonpost.com/elections/2024/07/05/third-party-independent-candidate-win [https://perma.cc/LV36-73RF] (reporting that it is expensive and difficulty to get on the ballot as a third-party candidate because each state has its own election rules and that RFK. did not get on the ballot in every state). 

[26] Team Kennedy v. Berger, No. 1:24-cv-3897, slip op. at 16–18 (S.D.N.Y. Sept. 10, 2024) (holding Kennedy did not meet the residency requirement for the state of New York and that New York state has an interest in following the constitution); Caitlin Yilek & Allison Novelo, Map Shows Where RFK Jr. is on the Ballot in the 2024 Election, CBS News (Sept. 27, 2024) https://www.cbsnews.com/news/rfk-jr-map-on-the-ballot-states [https://perma.cc/3HM5-A244].

[27] U.S. Const. amend. XII.

[28] Berger, slip op. at 2, 14.

[29] Id. at 18 (denying RFK’s emergency petition to get on New York’s ballot).

[30] In re Cartwright v. Kennedy, No. 04354, slip op. at 3 (N.Y.S.3d Aug. 29 2024), aff’d, No. 73915, slip op. (N.Y. Sept. 10 2024).

[31] Pellish & Dovere, supra note 2. 

[32] Kennedy v. N.C. State Bd. Elections, 905 S.E.2d 55, 57 (N.C. 2024).

[33] Kennedy v. Wis. Elections Comm’n, 11 N.W.3d 786, 787 (Wis. 2024).

[34] Kennedy v. Benson, No. 24-1799, 2024 WL 4501252, at *5 (6th Cir. 2024).

[35] Id.

[36] Id. at *2.

[37] Wis. Elections Comm’n, 11 N.W.3d at 787–88.

[38] Kennedy v. N.C. State Bd. Elections, 905 S.E.2d 55, 57 (N.C. 2024).

[39] Adam Nagourney et al., Door-Knocks, Texts, and Ads, Ads, Ads: Life on the Swing-State Battlefield, N.Y. Times (Oct. 20, 2024) https://www.nytimes.com/2024/10/20/us/harris-trump-swing-states.html?smid=nytcore-ios-share&referringSource=articleShare [https://perma.cc/9MD4-75XP].

[40] See supra, Part II.A.

[41] Pellish & Dovere, supra note 2.

[42] Brittany Gibson, RFK Jr. Removes Himself from 4 Battleground Ballots, Politico (Sept. 27, 2024) https://www.politico.com/news/2024/09/27/rfk-background-state-ballots-00181481 [https://perma.cc/9QZU-PESR] (quoting Britt Jacovich stating RFK is purposefully attempting to withdraw him name to force states to re-print ballots and sew election doubts for Trump); see N.C. State Bd. Elections, 905 S.E.2d at 61 (Earls, J., dissenting) (arguing that the reprinting of ballots disenfranchises absentee voters in North Carolina and therefore constitutes a threat to the power of the vote). 

[43] N.C. State Bd. Elections, 905 S.E.2d at 58 (Berger, J., concurring).

[44] RFK Jr. Claims He Had Parasitic Worm in Brain, Onion (May 9, 2024) https://theonion.com/rfk-jr-claims-he-had-parasitic-worm-in-brain-1851467603/?utm_campaign=TheOnion&utm_content=1715292076&utm_medium=SocialMarketing&utm_source=twitter [https://perma.cc/B6LA-D6J6] (satirizing RFK’s brain worm disclosure); @indaltonwetrvst, X (Oct. 26, 2024) https://x.com/indaltonwetrvst/status/1850330747221025142?s=42 [https://perma.cc/DK4Q-TUV2] (meme-ifying RFK’s brain worm and the whale head); @Betches_Sup, X (May 9, 2024) https://x.com/Betches_Sup/status/1788576811049164924 [https://perma.cc/DN7S-ZBDS] (making fun of RFK’s disclosure of his brain worm by pretending the worm is Hilary Clinton). 

[45] Goldmacher & Vigdor, supra note 5.

[46] George Cheung, Strengthening Democracy by Embracing a Multi-Party System, Stan. Soc. Innovation Rev. (Feb. 4, 2016) https://ssir.org/articles/entry/strengthening_democracy_by_embracing_a_multi_party_system [https://perma.cc/J6Y4-LZ63]; Montanaro, supra note 22 (arguing Americans are tired of their political party’s options).