No. 20-649

In the

Supreme Court of the United States

 

LEVEL THE PLAYING FIELD, 

PETER ACKERMAN, 

GREEN PARTY OF THE UNITED STATES, and

LIBERTARIAN NATIONAL COMMITTEE, INC.,

Petitioners,

v.

FEDERAL ELECTION COMMISSION,

Respondent.

 

On Petition for Writ of Certiorari to the 

United States Court of Appeals for the 

District of Columbia Circuit

 

BRIEF OF AMICUS CURIAE FAIRVOTE

IN SUPPORT OF PETITIONERS

 

ANDREW S. PENROSE

FAIRVOTE

6930 Carroll Avenue, 

Suite 240

Takoma Park, MD 20912

(301) 270-4616

drew@penrosefamily.us

WILLIAM P. TEDARDS,JR.

Counsel of Record

1101 30th Street, NW, 

Suite 500

Washington, DC 20007

(202) 744-1214

BT@tedards.net

Counsel for Amicus Curiae FairVote

December 14, 2020
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2

Exclusion of Non-Major Party

Candidates From the CPD Debates . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. THE CPD OPERATES AS A PARTISAN

ORGANIZATION UNDER THE

EXPRESS DIRECTION OF THE

MAJOR PARTY PRESIDENTIAL

CAMPAIGNS, IN CONTRAVENTION

OF 11 C.F.R. § 110.13(a)(1). . . . . . . . . . . . . . 6

The MOU Eliminates Any Doubt

That the CPD Operates as a

Partisan Organization . . . . . . . . . . . . 9

II. THE 15% POLLING REQUIREMENT,

AS APPLIED BY THE CPD TO FREEZE

THE POLITICAL STATUS QUO, IS

NOT AN “OBJECTIVE” STANDARD

WITHIN THE MEANING OF 11 C.F.R.

§ 110.13(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. The 15% Polling Requirement

Freezes the Political Status Quo . . . 11
ii

B. Polling Data Is Increasingly

Unreliable . . . . . . . . . . . . . . . . . . . . . 13

C. The 15% Polling Requirement is

Not in Accord With Debate

Inclusion Standards in the U.S. or

Abroad . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Celebrezze, 

460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . 12

Burdick v. Takushi, 

504 U.S. 428 (1992) . . . . . . . . . . . . . . . . . . . 12

Jenness v. Fortson, 

403 U.S. 431 (1971) . . . . . . . . . . . . . . . . . . . 11

Storer v. Brown, 

415 U.S. 724 (1974) . . . . . . . . . . . . . . . . . . . 10

STATUTES

ARIZ. REV. STAT. ANN. § 16-956(A)(2) (2011) . 22

Telephone Consumer Protection Act of 1991, 

47 U.S.C. § 227 (1991). . . . . . . . . . . . . . . . . 17

REGULATIONS

11 C.F.R. § 110.13(a)(1) . . . . . . . . . . . . . . . . . . 3, 6, 9

11 C.F.R. § 110.13(c) . . . . . . . . . . . . . . . . . . . 1, 5, 10

OTHER AUTHORITIES

Articles

Andrew Mercer, Claudia Deane and Kyley McGeeney,

Why 2016 election polls missed their mark, PEW

RESEARCH CENTER, Nov. 9, 2016,
iv

https://www.pewresearch.org/fact-tank/2016/11/09/

why-2016-election-polls-missed-their-mark/. . . . . 18

Andrew Prokop and Christina Animashaun, Elizabeth

Warren leads Joe Biden in ranked-choice poll, VOX,

Sep. 12, 2019,

https://www.vox.com/2019/9/12/20860985/poll-democ

ratic-primary-ranked-choice-warren-biden. . . . . . 13

Carl Bialik, Why the Polls Missed Bernie Sanders

Michigan Upset, FIVETHIRTYEIGHT, Mar. 9, 2016,

http://fivethirtyeight.com/features/why-the-polls-mis

sed-bernie-sanders-michigan-upset/ . . . . . . . . . . . 18

Cliff Zukin, What’s the Matter With Polling?, THE

NEW YORK TIMES, June 20, 2015,

http://www.nytimes.com/2015/06/21/opinion/sunday/

whats-the-matter-with-polling.html . . . . . . . . . . . 19

Dan Balz, The debate over debates: Why should polls

pick winners and losers?, THE WASHINGTON POST,

Nov. 7, 2015,

https://www.washingtonpost.com/politics/the-debateover-debates-why-should-polls-pick-winners-and-lose

rs/2015/11/07/1e107b86-84d7-11e5-9afb-0c971f713d0

c_story.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Danielle Kurtzleben, 4 Possible Reasons The Polls Got

It So Wrong This Year, NPR, Nov. 14, 2016,

https://www.npr.org/2016/11/14/502014643/4-possibl

e-reasons-the-polls-got-it-so-wrong-this-year . . . . 18

Gloria Dickie, Why Polls Were Mostly Wrong,

SCIENTIFIC AMERICAN, Nov. 13, 2020,

https://www.scientificamerican.com/article/why-polls
v

-were-mostly-wrong/. . . . . . . . . . . . . . . . . . . . . . 19-20

Jill Lepore, Politics and the New Machine, THE NEW

YORKER, Nov. 16, 2015,

http://www.newyorker.com/magazine/2015/11/16/poli

tics-and-the-new-machine . . . . . . . . . . . . . . 16-17, 22

Lance Lambert, The 2020 elections polling errors are

eerily similar to four years ago, FORTUNE, Dec 1,

2020,

https://fortune.com/2020/12/01/polling-fivethirtyeight

-nate-silver-2020-election-errors/ . . . . . . . . . . . . . 20

Larry Diamond, Ending the Presidential-Debate

Duopoly, THE ATLANTIC, May 8, 2015, 

http://www.theatlantic.com/politics/archive/2015/05/

ending-the-presidential-debate-duopoly/392480 . 25

Leaders’ debate: ICM/Guardian poll puts Miliband

ahead - just, THE GUARDIAN, April 2, 2015,

http://www.theguardian.com/politics/blog/live/2015/a

pr/02/leaders-debate-cameron-and-miliband-go-headto-head-with-other-parties-live . . . . . . . . . . . . . . . 23

Michael Barone, Why Political Polls Are So Often

Wrong, THE WALL STREET JOURNAL, Nov. 11,

2015, 

http://www.wsj.com/articles/why-political-polls-are-s

o-often-wrong-1447285797. . . . . . . . . . . . . . . . . . . 19

Michael W. Link, et al., Reaching the U.S. Cell Phone

Generation, 

71 PUBLIC OPIN. Q. 814 (2007) . . . . . . . . . . . . . 16
vi

Nate Cohn, A 2016 Review: Why Key State Polls Were

Wrong About Trump, THE NEW YORK TIMES, May

31, 2017, 

https://www.nytimes.com/2017/05/31/upshot/a-2016-

review-why-key-state-polls-were-wrong-about-trump

.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

Nate Silver, The Polls Weren’t Great. But That’s Pretty

Normal, FIVETHIRTYEIGHT, Nov. 11, 2020, 

https://fivethirtyeight.com/features/the-polls-werentgreat-but-thats-pretty-normal/ . . . . . . . . . . . . . . . 20

Nick Anstead, We need to look at other parliamentary

democracies for ideas about how to run televised

debates, MEDIA POLICY PROJECT BLOG, THE

LONDON SCHOOL OF ECONOMICS AND

POLITICAL SCIENCE, Oct. 15, 2014,

http://blogs.lse.ac.uk/medialse/2014/10/15/we-need-to

-look-at-other-parliamentary-democracies-for-ideasabout-how-to-run-televised-debates/ . . . . . . . . . . . 23

Paul Merrill, Maine governor hopefuls face off in first

debate, WMTW NEWS 8, Oct. 8, 2014,

http://www.wmtw.com/news/maine-governor-hopeful

s-face-off-in-first-debate/29007466 . . . . . . . . . . . . 21

POLITICO, Democratic primary polls: Who’s ahead in

the 2020 race?, 

https://www.politico.com/2020-election/democratic-pr

esidential-candidates/polls/ . . . . . . . . . . . . . . . . . . 13

The problem with polls, THE WEEK, April 10, 2016,

http://theweek.com/articles/617109/problem-polls

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
vii

Ryan Heath, “Worst presidential debate in history”:

Foreigners recoil at Trump and Biden’s prime-time

brawl, POLITICO, Sept. 9, 2020,

https://www.politico.com/news/2020/09/30/the-worstpresidential-debate-in-history-423765 . . . . . . . 24-25

Television debates, ACE, 

http://aceproject.org/epic-en/CDTable?view=country

&question=ME059 . . . . . . . . . . . . . . . . . . . . . . . . . 22

What Is Public Opinion Polling and Why Is It

Important?, GALLUP WORLD POLL (2007), 

http://media.gallup.com/muslimwestfacts/PDF/Pollin

gAndHowToUseItR1drevENG.pdf . . . . . . . . . . . . 15

Reports

Nick Anstead, Televised Debates in Parliamentary

Democracies, MEDIA POLICY PROJECT, THE

LONDON SCHOOL OF ECONOMICS AND

POLITICAL SCIENCE, 10–11 (January, 2015). . 23

P a r ti e s a n d C a n d i d a t e s , T H E A C E

ENCYCLOPAEDIA, ACE, 2d edition, 2012,

http://aceproject.org/ace-en/topics/pc/pcc/pcc07. . . 22

Polling Fundamentals - Total Survey Error, ROPER

CENTER, CORNELL UNIVERSITY, 

https://ropercenter.cornell.edu/polling-and-public-opi

nion/polling-fundamentals. . . . . . . . . . . . . . . . 16, 17

White House 2016: General Election,

POLLINGREPORT.COM, 

http://www.pollingreport.com/wh16gen.htm. . . 15-16
viii

Internet Sources

2004 U.S. House of Representatives race in Vermont

(Democratic Candidate, 7.1%), 2004 U.S. House

General Election, VERMONT SECRETARY OF

STATE, Election Archives,

https://electionarchive.vermont.gov/elections/view/75

532. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2006 U.S. Senate race in Connecticut (Republican

Candidate, 9.6%), Official Election Results For United

States Senate, 2006 U.S. Senate Campaigns,

FEDERAL ELECTION COMMISSION,

https://www.fec.gov/resources/cms-content/document

s/2006senate.pdf. . . . . . . . . . . . . . . . . . . . . . . . . 14-15

2010 Governor election in Colorado (Republican

candidate, 11.1%) - Colorado gubernatorial election,

2010, BALLOTPEDIA, 

https://ballotpedia.org/Colorado_gubernatorial_electi

on,_2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2012 U.S. Senate race in Maine (Democratic

Candidate, 13%), U.S. Senate elections in Maine, 2012,

BALLOTPEDIA,

https://ballotpedia.org/United_States_Senate_electio

ns_in_Maine,_2012. . . . . . . . . . . . . . . . . . . . . . . . . 15

2016 U.S. Senate race in Alaska (Democratic

Candidate, 11.62%), U.S. Senate election in Alaska,

2016, BALLOTPEDIA,

https://ballotpedia.org/United_States_Senate_electio

n_in_Alaska,_2016 . . . . . . . . . . . . . . . . . . . . . . . . 15
ix

2018 U.S. Senate race in Maine (Democratic

Candidate, 10.5%), U.S. Senate election in Maine,

2018, BALLOTPEDIA,

https://ballotpedia.org/United_States_Senate_electio

n_in_Maine,_2018 . . . . . . . . . . . . . . . . . . . . . . . . . 15

Guidelines for Debates and Forums, LEAGUE OF

WOMEN VOTERS WISCONSIN, Revised July 2014,

https://web.archive.org/web/20140824043756/http://

www.lwvwi.org/Members/GuidelinesforDebates.aspx

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

League of Women Voters (LWV) Candidate Forum

Guidelines, LEAGUE OF WOMEN VOTERS SAN

DIEGO, 

https://web.archive.org/web/20170302211248/http://

www.lwvsandiego.org/files/CANDIDATE_FORUM_

GUIDELINES.pdf . . . . . . . . . . . . . . . . . . . . . . . 21-22

Presidential Candidates, 2020, BALLOTPEDIA,

https://ballotpedia.org/Presidential_candidates,_

2020. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Presidential Candidates, 2016, BALLOTPEDIA,

https://ballotpedia.org/Presidential_candidates,_

2016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Presidential election by state, 2016, BALLOTPEDIA, 

https://ballotpedia.org/Presidential_election_by_

state,_2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
x

Renee Davidson, 4 Reasons You Should Watch a

Candidate Debate, LEAGUE OF WOMEN VOTERS,

Oct. 7, 2014,

http://lwv.org/blog/4-reasons-you-should-watchcandidate-debate . . . . . . . . . . . . . . . . . . . . . . . . . . 21

The League of Women Voters and Candidate Debates:

A Changing Relationship, LEAGUE OF WOMEN

VOTERS, 

http://lwv.org/content/league-women-voters-andcandidate-debates-changing-relationship . . . . . . . 21

Third Party and independent candidates for the 2012

UnitedStatesPresidential election, BALLOT ACCESS

NEWS, Oct. 1, 2012, Vol. 28, No. 5,

http://ballot-access.org/2012/10/27/ballot-access-newsoctober-2012-print-edition/ and 

WIKIPEDIA, 2012, 

https://en.wikipedia.org/wiki/Third_party_and_indep

endent_candidates_for_the_2012_United_States_pre

sidential_election#Ballot_access_to_270_or_more_ele

ctoral_votes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
1

INTEREST OF AMICUS CURIAE1

FairVote is a 501(c)(3) non-profit organization

incorporated in the District of Columbia, whose

mission is to advocate for fairer representation in

government through changes in the electoral process.

FairVote’s nonpartisan goal, to promote the voices and

views of all voters, is grounded in evidence that a more

inclusive election process will help create a

government that is more representative and effective.

FairVote encourages public officials, judges, and the

public to explore fairer and more inclusive election

methods, including through litigation where

appropriate.

Lack of competition in presidential debates is an

important concern for FairVote, as voters nationwide

are deprived of full participation in the process

because candidates of the two dominant political

parties frequently do not represent an adequate range

of choice and fail to address issues of public

importance. See, e.g., Robert Richie, President and

CEO of FairVote, Re: Petition for Rulemaking from

Levelthe Playing Field to Revise and Amend 11 C.F.R.

§ 110.13(c) (Dec. 15, 2014), available at https://www.

shapiroarato.com/wp-content/uploads/2014/12/FairV

ote-Comment-12.15.14.pdf.

1Pursuant to Supreme Court Rule 37.2(a) counsel of record for all

parties received timely notice of the intent to file this brief and all

parties have consented to its filing. Pursuantto Rule 37.6, amicus

counsel certifies that no counsel for a party authored this brief in

whole or in part and no person other than amicus curiae, its

members, or its counsel made a monetary contribution intended

to fund the preparation or submission of this brief.
2

Here, where the two major parties have gained

complete control of the presidential debate process --

permanently excluding all other candidates -- the lack

of competition prompts the filing of this amicus brief in

favor of Petitioners.

SUMMARY OF ARGUMENT

Acting in accordance with the provisions of a contract

between the Democratic and Republican presidential

campaigns, the Commission on Presidential Debates

(“CPD”) sponsored three presidential debates and one

vice presidential debate in 2012.2 The only participants

were the respective candidates of the Democratic and

Republican parties. All other candidates were excluded

pursuant to a set of selection criteria for participation,

which the CPD was required to apply under the

contract between the two campaigns. To assure that no

other public debate or competitive discussion between

a major party candidate and any other candidate(s)

could occur,the major party campaigns further agreed

not to appear in or accept an invitation to any debate

or adversarial forum other than the debates sponsored

by the CPD. The CPD’s exclusive right to sponsor

major party debates was contingent, however, on its

compliance with the provisions of the contract, and the

campaigns jointly reserved the right to change the

sponsor if the CPD did not so agree.

2The Petitioners’ 2014 administrative complaints were filed

against the CPD, its executive director, and 11 directors who

adopted the CPD’s rules for the 2012 presidential election.

Petition for Writ of Certiorari (“Petition”) at 12.
3

The CPD’s participation in an exclusive arrangement

to sponsor all presidential debates involving the two

major party candidates, via compliance with a private

contract designed to exclude all possibility of public

debate between major party candidates and other

candidates, was an official act of partisanship by the

organization,taken in “support” of the Democratic and

Republican parties in violation of 11 C.F.R. §

110.13(a)(1). 

Exclusion of Non-Major Party

Candidates From the CPD Debates

Under the selection criteria for participation in the

CPD debates, which the CPD was mandated to use by

the contract between the two major party campaigns,

eligible candidates have to meet two requirements,

titled “Evidence of Ballot Access” and “Indicators of

Electoral Support.” The “ballot access” requirement,3

itself, eliminates most independent and minor party

candidates and satisfies all concerns with respect to

manageability of the debate process. In the 2012, 2016,

and 2020 elections, application of the “ballot access”

criterion, alone, would have produced a field of only

four debate participants, including the two major party

candidates,4 but would have allowed two minor party

3The candidate must appear on enough state ballots to have a

mathematical chance of securing at least 270 electoral votes and

winning the election.

4For 2012, see Third party and independent candidates for the

2012 United States presidential election, http://ballotaccess.org/2012/10/27/ballot-access-news-october-2012-printedition/; WIKIPEDIA, 2012,

(continued...)
4

candidates an opportunity to gain the necessary

capital and public recognition that comes only with

participation in a debate.5

The threshold “electoral support” requirement,6on the

other hand, has been shown to be an absolute bar to

participation in a CPD debate for any candidate other

than a Democratic or Republican nominee, as

explained at length in the Petition. And since

participation in presidential debates is a prerequisite

for electoral success, the 15% requirement, combined

with the agreement not to participate in any other

debate, operates as a definitive barrier to entry,

assuring that the Democratic/Republican combination

4

(...continued)

https://en.wikipedia.org/wiki/Third_party_and_independent_ca

ndidates_for_the_2012_United_States_presidential_election#B

allot_access_to_270_or_more_electoral_votes (last visited

12/13/2020).

For 2016-2020, see

Presidential Candidat e s , 2020, BALLOTPEDIA,

https://ballotpedia.org/Presidential_candidates,_2020; 

Presidential Candidates, 2016, BALLOTPEDIA,

https://ballotpedia.org/Presidential_candidates,_2016 and 

Presidential election by state, 2016, BALLOTPEDIA,

https://ballotpedia.org/Presidential_election_by_state,_2016.

5

If this more inclusive approach were applied in selecting

candidates for the first debate, the criteria could then be

tightened for subsequent debates, allowing a standard that

evolves from inclusive to less inclusive as seen, for example, in

presidential primary debates and in other countries (pp. 22-25,

infra).

6The candidate must be supported by at least 15% of the national

electorate, as determined by an average of five selected national

polls.
5

will never face effective competition in presidential

elections. This systemic exclusion of new entrants to

protect the two dominant parties via the 15% polling

requirement does not qualify as “objective” under 11

C.F.R. § 110.13(c).

Because the 15% polling requirement as so applied has

frozen the political status quo for 20 years, the Court

may consult its analogous “ballot access” standards to

determine whether, absent a strong countervailing

rationale for the requirement, it should be invalidated.

Polling as a method of assessing public support is also

increasingly unreliable. Traditional polling methods

relied on calling landline telephones for a sample of

likely voters, and then extrapolating from that to

estimate public support. These methods have become

dated in a number of ways, leading to polls becoming

more likely to fail, sometimes spectacularly, in

correctly predicting election outcomes. This makes

their use as a substantive exclusionary criterion for

inclusion in debates for the nation’s highest executive

office unacceptable, especially when compounded with

the high polling threshold required for inclusion.

Further, the exclusive use of five selected polls with a

minimum 15% threshold for inclusion is out of step

with debate inclusion standards generally. In the

states, in federal primaries, and in other nations,

debate inclusion rules vary, but are generally far more

inclusive than those used by the CPD. Debates may be

conducted by non-profit organizations operating in the

public interest, by the media directly, or by a public

agency, and they may follow one set of rules or vary

their rules as the election season progresses. 
6

Whatever the setting, a rule effectively limiting

debates to only two candidates is virtually unheard of

elsewhere. A limit to two choices contributed directly

to this year’s first presidential debate being termed by

many the worst presidential debate in history and

underscores the value of having a more inclusive

standard in opening presidential debates.

ARGUMENT

I.

THE CPD OPERATES AS A PARTISAN

ORGANIZATION UNDER THE EXPRESS

DIRECTION OF THE MAJOR PARTY

P R E S I D E N T I A L C A M P A I G N S , I N

CONTRAVENTION OF 11 C.F.R. § 110.13(a)(1)

The Petition notes that “[f]ormer CPD director and

Democratic Representative John Lewis asserted that

‘the two major parties [have] absolute control of the

presidential debate process’” (Petition at 9), which is

exemplified by the “Memorandum of Understanding”

(MOU) between Obama for America and Romney for

President(the “major party campaigns”) that governed

the CPD-sponsored presidential debates in 2012. The

MOU is available at https://info.publicintelligence.net/

ObamaRomneyDebateMOU.pdf. UnderParagraph 2 of

the MOU, titled “Sponsorship,” the two major party

campaigns agree that:

[T]he Commission shall sponsor the

debates, subject to its expression of a

willingness to employ the provisions of

this agreement in conducting these

debates. In the event the Commission
7

does not so agree, the two campaigns

jointly reserve the right to determine

whether an alternate sponsor is

preferable. (MOU ¶ 2, “Sponsorship,” at

p. 2 (emphasis added).)

This is immediately followed by a direction as to how

to control entry into the debates:

[T]he Commission’s Nonpartisan

Candidate Selection Criteria for 2012

General Election Debate participation

shall apply indetermining the candidates

to be invited to participate in these

debates. (Id. (emphasis added).)

The “Candidate Selection Criteria” are available at

https://www.debatesinternational.org/sites/default/fil

es/CPD-Candidate-Selection-Criteria-10.20.11.pdf.The

criteria include both the “Evidence of Ballot Access”

and “Indicators of Electoral Support” requirements,

discussed above at pp. 3-5.

Under this MOU, the CPD has no discretion to modify

the selection criteria to include any candidate other

than the Democratic and Republican nominees,

regardless of the conditions which might exist in a

particular election cycle. For instance, if an

independent or minor party candidate were gaining

public attention and had met the “ballot access”

requirements, the CPD would not be allowed to relax

the 15% polling requirement to allow the public to see

that candidate on the debate stage. This would have

disqualified Ross Perot, for example, in 1992. Petition

at 10 (“Even Perot, who participated before the 15%
8

rule, would not have qualified under the rule, because

he was polling at less than 10% at the relevant time.

C.A.App. 367, 701.”).

Finally, paragraph 1(d) of the MOU states that the

major party campaigns will not:

(1) issue any challenges for additional

debates, (2) appear at any other debate or

adversarial forums except as agreed to by

the parties, or (3) accept any television or

radio air time offers that involve a debate

format or otherwise involve the

simultaneous appearance of more than

one candidate.

MOU ¶ 1(d), under the heading “Number, Dates, Time,

Locations, Topics,” at p. 1.7

In effect, the MOU grants the CPD a monopoly in

staging major party presidential debates -- eliminating

all other competition -- so long as the CPD employs the

provisions of the MOU, including the 15% polling

requirement that systemically excludes all

independent and minor party candidates. By

employing a combination of the 15% polling

requirement to block entry into the CPD debates and

the agreement not to participate in any other debates,

the two major parties, with the assistance of the CPD,

have erected a definitive barrier to entry into

presidential politics. The arrangement assures that

7The remainder of the 21-page MOU regulates virtually every

aspect of the debate process, itself, in minute detail, leaving the

CPD with little or no discretion as to how to conduct the debates.
9

the major party candidates will never have to face

other debate opponents, thereby insulating them from

effective competition. By supporting the two major

parties in this anticompetitive scheme, the CPD is in

violation of 11 C.F.R. § 110.13(a)(1).

The MOU Eliminates Any Doubt

That the CPD Operates as a Partisan

Organization

After reviewing what the district court characterized

as a “mountain of submitted evidence” (Petition at 14)

documenting the partisanship of the CPD’s directors,

the Petition argues that:

Where, as here, an organization that has

no purpose other than to stage political

debates is run by people who have

dedicated their lives and careers to

partisan politics, it stands to reason

that–without an independent board or

mechanism of corporate governance to

override its leaders’ partisanship–the

organization will behave in a partisan

fashion. And the CPD’s lengthy track

record of excluding independents from

the debates confirms that the CPD has

done precisely what one would expect

from such an organization. 

Petition at 25-26. The MOU confirms that the

Petitioners’ inference is correct, showing that, in

excluding independent and minor party candidates

from the major party debates, the CPD is acting at the

express direction of the major party campaigns. By
10

agreeing to employ the 15% polling requirement as an

integral part of the major parties’ plan to eliminate

competition in presidential politics, the CPD is

officially acting as a partisan organization.

The reasonable suggestion in the Petition that the

CPD might need “an independent board or mechanism

of corporate governance to override its leaders’

partisanship”(Id.) is of course impossible with such an

MOU in place, where the two major party campaigns

jointly reserve the right to change the sponsor if the

CPD does not agree to follow the instructions in the

MOU.

II.

THE 15% POLLING REQUIREMENT, AS

APPLIED BY THE CPD TO FREEZE THE

POLITICAL STATUS QUO, IS NOT AN

“OBJECTIVE” STANDARD WITHIN THE

MEANING OF 11 C.F.R. § 110.13(c)

In the context of assessing the constitutionality

of state-imposed ballot access requirements which

independent and minor party candidates must satisfy

in order to access election ballots -- such as collecting

a minimum number of supporting signatures (another

“indicator of electoral support”)-- this Court takes past

experience into account. See, e.g., Storer v. Brown, 415

U.S. 724, 742 (1974):

Third, once the number of signatures

required in the 24-day period is

ascertained, along with the total pool

from which they may be drawn, there

will arise the inevitable question for
11

judgment: in the context of California

politics, could a reasonably diligent

independent candidate be expected to

satisfy the signature requirements, or

will it be only rarely that the unaffiliated

candidate will succeed in getting on the

ballot? Past experience will be a helpful,

if not always an unerring, guide: it will

be one thing if independent candidates

have qualified with some regularity, and

quite a different matter if they have not.

See also, Jenness v. Fortson, 403 U.S. 431, 438 (1971),

upholding Georgia’s ballot access requirements

because they did not freeze the political status quo:

Finally, and in sum, Georgia’s election

laws, unlike Ohio’s, do not operate to

freeze the political status quo. In this

setting, we cannot say that Georgia’s 5%

petition requirement violates the

Constitution.

A. The 15% Polling Requirement Arbitrarily

Freezes the Political Status Quo

This is not a ballot access case, but this case concerns

the same fundamental issue: the fairness and

objectivity of restrictions on access to the democratic

political process. The two major political parties have

constructed a system which has effectively frozen the

political status quo in presidential politics for 20 years.

In assessing the objectivity of the linchpin of that

system -- the 15% polling requirement -- the Court can

take that 20-year history into account and, in the
12

absence of a strong countervailing rationale for the

requirement,8apply the same fundamental principles

that the Court applies in ballot access cases. As in

ballot access cases, the emphasis in assessing this type

of restriction on access to the democratic process

should focus on reasonably promoting inclusion,

comparing the severity of the restriction with any

compelling interest that the restriction might serve.

As the Petition demonstrates, the way the CPD uses

polling data to determine inclusion in the presidential

general election debates virtually guarantees that only

two candidates will qualify. No candidate who did not

run in the Democratic or Republican primary has ever

met this 15% threshold requirement -- not even Ross

Perot, who participated in the 1992 general election

debates before thatthresholdwas instituted. That fact,

combined with the unreliability of polls described

below, assures unjustifiable exclusion of one or more

serious and potentially viable presidential candidates

from the debates.

This systematic exclusion of all independent and

minority candidates from all CPD-sponsored debates

appears to have no justification stemming from any

need to have orderly and manageable debates. As

explained above (at pp. 3-5), if the CPD had dropped

the 15% polling requirement and simply applied its

ballot access requirementin the debates of 2012, 2016,

and 2020, the major party candidates would have been

8Described as a “compelling” interest which is “narrowly drawn”

in ballot access cases applying strict scrutiny Anderson v.

Celebrezze, 460 U.S. 780, 789 (1983) and Burdick v. Takushi, 504

U.S. 428, 434 (1992).
13

joined on the stage by only two additional candidates.

B. Polling Data Is Increasingly Unreliable

The way the CPD uses polls to determine debate

eligibility also fails to account for the limitations of

polling data. Although polling data can be useful as

one line of evidence for public support, it is

insufficiently reliable to be used as the sole

determinant for debate inclusion.

For example, if a 15% threshold were applied to the

first Democratic primary debates in June, 2019, only

Joe Biden and Bernie Sanders -- the two candidates

with the greatest name recognition -- would have

qualified. See POLITICO, Democratic primary polls:

Who’s ahead in the 2020 race?,

9

(setting the date to the

week ending June 23, 2019). Such a result would have

not only excluded several high profile candidates,

including every woman candidate and every person of

color, it also would have excluded the candidate that

later polls identified as a potential frontrunner,

Elizabeth Warren. See Andrew Prokop and Christina

Animashaun, Elizabeth Warren leads Joe Biden in

ranked-choice poll, VOX, Sep. 12, 2019.10

When candidates for the Republican nomination for

president in 2016 began participating in debates, only

DonaldTrump and Ben Carson polled higher than 15%

9https://www.politico.com/2020-election/democratic-presidential

-candidates/polls/

10https://www.vox.com/2019/9/12/20860985/poll-democraticprimary-ranked-choice-warren-biden
14

on average, with Marco Rubio in third polling at about

10% on average. Dan Balz, The debate over debates:

Why should polls pick winners and losers?, THE

WASHINGTON POST, Nov. 7, 2015.

11 This

demonstrates how a field of serious candidates can

split polling totals, causing nearly every candidate to

apparently poll poorly. Under those circumstances,

candidates invited to debate and candidates excluded

may both be well within the margin of error of the poll

from each other, effectively making the exclusions

arbitrary. In the Republican primary debates in 2016,

it meant that governors of New York, Louisiana, and

Virginia never had a chance to present their case to

Republican primary voters. In a general election to

which the 15% threshold applies, it means the loss of

important perspectives on the future of the country.

The illogic of relying on a minimum 15% polling

performance to determine whether a candidate should

be allowed to debate a major party candidate at the

presidential level takes on even sharper focus

considering that, at times, major party candidates,

themselves, finish with vote totals below 15% in

statewide races. Following are six examples from state

elections for Governor, U.S. Senate, and U.S. House of

Representatives: in Vermont in 2004, the Democratic

candidate for the U.S. House received 7.1% of the

vote;12

in Connecticut in 2006, the Republican

candidate for the U.S. Senate received 9.6% of the

11https://www.washingtonpost.com/politics/the-debate-overdebates-why-should-polls-pick-winners-and-losers/2015/11/07/

1e107b86-84d7-11e5-9afb-0c971f713d0c_story.html

12https://electionarchive.vermont.gov/elections/view/75532
15

vote;13

in Colorado in 2010, the Republican candidate

for Governor received 11.1% of the vote;14in Maine in

2012, the Democratic candidate for the U.S. Senate

received 13% of the vote;15 in Alaska in 2016, the

Democratic candidate for the U.S. Senate received

11.62% of the vote;16and in Maine in 2018, the

Democratic candidate for the U.S. Senate received

10.5% of the vote.17

Polling in elections relies on asking representative

samples of people their answers to various questions

and then making inferences from those answers about

the opinions and behaviors of the voting public in

general. See generally, What Is Public Opinion Polling

and Why Is It Important?, GALLUP WORLD POLL

(2007).18 For example, a poll may ask a “likely voter”

for whom they would vote were the election held today.

See, e.g., White House 2016: General Election,

13https://www.fec.gov/resources/cms-content/documents/2006sen

ate.pdf

14https://ballotpedia.org/Colorado_gubernatorial_election,_2010

15https://ballotpedia.org/United_States_Senate_elections_in_

Maine,_2012

16https://ballotpedia.org/United_States_Senate_election_in_

Alaska,_2016

17https://ballotpedia.org/United_States_Senate_election_in_

Maine,_2018

18http://media.gallup.com/muslimwestfacts/PDF/PollingAnd

HowToUseItR1drevENG.pdf
16

POLLINGREPORT.COM19

(summarizing various polls

that included who participants would vote for

president “if the election were held today”). Then, the

polling agency would weigh respondents according to

characteristics such as age, education, race, and

income so that their sample reflects, as closely as

possible, the population in general. Polling

Fundamentals - Total Survey Error, ROPER CENTER,

CORNELL UNIVERSITY.20 Using these weights,

responses are then aggregated to produce estimates of

who likely voters would vote for, were the election held

today, as a means of estimating how actual voters will

actually vote when the election is held. Id. These

estimates are just that: estimates. They always have

a degree of uncertainty and a margin of error.

Additionally, weaknesses in polling design and

execution tend to increase the error associated with

polling figures.

One common problem today is that the ability to draw

a representative sample of voters can be impeded by a

technological or informational barrier. For example,

polls historically relied on calling people on their home

phones. See generally, Michael W. Link, et al.,

Reaching the U.S. Cell Phone Generation, 71 PUBLIC

OPIN. Q. 814 (2007). However, increasingly people

rely on mobile phones, with 40% of adults no longer

owning a landline at all. Jill Lepore, Politics and the

19http://www.pollingreport.com/wh16gen.htm

20https://ropercenter.cornell.edu/polling-and-public-opinion/polli

ng-fundamentals, “Total Survey Error” tab.
17

New Machine, THE NEW YORKER, Nov. 16, 2015.21

Polling agencies have attempted to compensate for

this, but either prospective pollees simply do not

answer their phones or the lists are compiled from

skewed or otherwise unreliable sources, given the

absence of the equivalent of a phone book for mobile

phones and a federal ban on autodialing to cell phones.

Id.; Telephone Consumer Protection Act of 1991, 47

U.S.C. § 227 (1991).

Even with a perfectly representative sample, polling

estimates of support have error margins, often as high

as five to ten percentage points. Polling Fundamentals

- Total Survey Error, supra. When compounded with

these sources of unrepresentativeness in sampling,

candidates polling below 15% may actually have as

much as 25% support, certainly high enough to

consider them viable candidates with a viewpoint the

voting public deserves to hear in debates.

Inaccurate polls can clash with actual voting results in

spectacular ways, eroding public confidence in their

use.This is particularly true today, given the outcomes

of the 2016 and 2020 presidential elections compared

to the predictions being made by analysts relying

principally on polls. There exists no shortage of media

pieces bemoaning how inaccurate such polls were in

2016. E.g., Nate Cohn, A 2016 Review: Why Key State

Polls Were Wrong About Trump, NEW YORK TIMES,

21http://www.newyorker.com/magazine/2015/11/16/politics-and-t

he-new-machine
18

May 31, 2017;22 Danielle Kurtzleben, 4 Possible

Reasons The Polls Got It So Wrong This Year, NPR,

Nov. 14, 2016;23 Andrew Mercer, Claudia Deane and

Kyley McGeeney, Why 2016 election polls missed their

mark, PEW RESEARCH CENTER, Nov. 9, 2016.24

Signs of this unreliability had shown up in the 2016

primary campaign, and demonstrated the weaknesses

of polling as a means of identifying accurate levels of

support. In March of 2016, for example, Bernie

Sanders outperformed his polling by over 20

percentage points in the Michigan Democratic

primary. Carl Bialik, Why the Polls Missed Bernie

Sanders’ Michigan Upset, FIVETHIRTYEIGHT, Mar.

9, 2016.25 That upset demonstrated many of the ways

polling data can fail to reflect reality. The Michigan

polls did not sufficiently correct for their lack of young

voters, who disproportionately favored Sanders, even

while it overcompensated in attempting to correct for

responses from African Americans, a population

previously supporting Clinton at higher rates than it

did in Michigan. Id. That particular example was an

outlier, but it serves as an example of how bad errors

can be, even when multiple polls by multiple polling

22https://www.nytimes.com/2017/05/31/upshot/a-2016-review-w

hy-key-state-polls-were-wrong-about-trump.html

23https://www.npr.org/2016/11/14/502014643/4-possible-reasonsthe-polls-got-it-so-wrong-this-year

24https://www.pewresearch.org/fact-tank/2016/11/09/why-2016-

election-polls-missed-their-mark/

25http://fivethirtyeight.com/features/why-the-polls-missed-berniesanders-michigan-upset/
19

agencies are used.

Reliance on polling in the 2012 presidential general

election was also misplaced. Polling showed a near-tie

between Mitt Romney and Barack Obama, with some

-- including Gallup -- predicting that Mitt Romney

would win. The problem with polls, THE WEEK, April

10, 2016.26In fact, the president was reelected by a

nearly four percentage point margin, amounting to

some five million votes. Id.

Public confidence in the exclusive use of polling as a

metric of public support began to erode in the 2016

election cycle, especially as reports began to issue from

popular periodicalshighlighting them. E.g. Cliff Zukin,

What’s the Matter With Polling?, THE NEW YORK

TIMES, June 20, 2015;27 Michael Barone, Why

Political Polls Are So Often Wrong, THE WALL

STREET JOURNAL, Nov. 11, 2015.28

Public confidence in polls has continued to erode in the

2020 election cycle, featuring similar discrepancies

between polling predictions and electoral results, with

critical reviews and analyses by publications such as:

Gloria Dickie, Why Polls Were Mostly Wrong,

26http://theweek.com/articles/617109/problem-polls

27http://www.nytimes.com/2015/06/21/opinion/sunday/whats-the

-matter-with-polling.html

28http://www.wsj.com/articles/why-political-polls-are-so-oftenwrong-1447285797
20

SCIENTIFIC AMERICAN, Nov. 13, 2020;29 Lance

Lambert, The 2020 elections polling errors are eerily

similar to four years ago, FORTUNE, Dec. 1, 2020;30

and Nate Silver, The Polls Weren’t Great. But That’s

Pretty Normal, FIVETHIRTYEIGHT, Nov. 11, 2020.31

TheFORTUNEandFIVETHIRTYEIGHTarticles both

suggestthat polling errors in excess of four percent are

normal, while SCIENTIFIC AMERICAN identified

errors ranging from 2.6 - 6.4%. These levels of

variability/unreliability are particularly troublesome

here, where the CPD, operating in accordance with

directions from the major party political campaigns,

“retains complete discretion about what polls to use ...

enabling it to select polls that put independent

candidates belowthe 15% threshold. C.A.App. 1117-18,

1308-09.” Petition at 10-11.

C. The 15% Polling Requirement is Not in

Accord With Debate Inclusion Standards

in the U.S. or Abroad

The degree to which the CPD inclusion rules exclude

candidates who might otherwise contribute

meaningfully to the debate can be seen in how out of

step those rules are with recognized best practices in

debates for the offices of governor and U.S. senator in

29https://www.scientificamerican.com/article/why-polls-weremostly-wrong/

30https://fortune.com/2020/12/01/polling-fivethirtyeight-natesilver-2020-election-errors/

31https://fivethirtyeight.com/features/the-polls-werent-great-butthats-pretty-normal/
21

states, in U.S. presidential primaries, and in debates

for public office in other nations.

In states, debates are often held by nonpartisan public

interest organizations like the League of Women

Voters, who also conducted presidential debates prior

to the two major parties creating the CPD in 1987. See,

Renee Davidson, 4 Reasons You Should Watch a

Candidate Debate, LEAGUE OF WOMEN VOTERS,

Oct. 7, 2014;32 The League of Women Voters and

Candidate Debates: A Changing Relationship,

LEAGUE OF WOMEN VOTERS.33 The media also

sponsors debates directly, sometimes in coordination

with a particular venue. See, e.g., Paul Merrill, Maine

governor hopefuls face off in first debate, WMTW

NEWS 8, Oct. 8, 201434(describing a gubernatorial

debate between three candidates held by a media

corporation and noting the plan to hold a second).

When the League of Women Voters sponsors a debate,

it typically invites every candidate on the ballot, and

sometimes includes write-in candidates as well. See,

e.g., Guidelines for Debates and Forums, LEAGUE OF

WOMEN VOTERS WISCONSIN, Revised July 2014;35

League of Women Voters (LWV) Candidate Forum

32http://lwv.org/blog/4-reasons-you-should-watch-candidate-debate

33https://www.lwv.org/league-women-voters-and-candidate-deba

tes-changing-relationship

34http://www.wmtw.com/news/maine-governor-hopefuls-face-offin-first-debate/29007466

35https://web.archive.org/web/20140824043756/http://www.lwvw

i.org/Members/GuidelinesforDebates.aspx
22

Guidelines, LEAGUE OF WOMEN VOTERS SAN

DIEGO

36

(emphasizing to “[i]nvite all candidates”).

When media sponsors debates, they adopt their own

inclusion rules, presumably to maximize the

newsworthiness of the event. See, e.g., Lepore, supra

(“[i]t would make better television” to include Carly

Fiorina in an early debate among Republican

candidates, despite her relatively low polling numbers

at the time). When a state agency sponsors debates, it

ordinarily uses rules more inclusive than those

adopted by the CPD. See, e.g., ARIZ. REV. STAT.

ANN. § 16-956(A)(2) (2011) (instructing the Arizona

Clean Elections Commission to sponsor debates and

invite all candidates).

Internationally, debates are also usually the domain of

the media, and they typically invite more than two

candidates for presidential elections. See Parties and

Candidates, THE ACE ENCYCLOPAEDIA, ACE, 2d

edition, 2012;37see also Television debates, ACE38

(table listing countries along with comments on how

televised debates are conducted, if at all, in that

country). When countries do adopt public regulations

regarding debate inclusion, they use standards more

inclusive than those of the CPD. For example, Canada

permits participation by any candidate from a political

party with representation in the House of Commons

(five parties) with a consistent polling threshold of only

36https://web.archive.org/web/20170302211248/http://www.lwvs

andiego.org/files/CANDIDATE_FORUM_GUIDELINES.pdf

37http://aceproject.org/ace-en/topics/pc/pcc/pcc07

38http://aceproject.org/epic-en/CDTable?view=country&question

=ME059
23

5%. Nick Anstead, We need to look at other

parliamentary democracies for ideas about how to run

televised debates, MEDIA POLICY PROJECT BLOG,

THE LONDON SCHOOL OF ECONOMICS AND

POLITICAL SCIENCE, Oct. 15, 2014.39

Germany follows a similar rule, allowing participation

(in the first round of debates) by representatives of

parties with a presence in the Bundestag, which

amounts to a 5% threshold as well. Id. Germany’s

practice also highlights another way of balancing the

goals of inclusion with an orderly and informative

process common in other nations: they narrow the

inclusion rules over a series of debates. Nick Anstead,

Televised Debates in Parliamentary Democracies,

MEDIA POLICY PROJECT,THELONDON SCHOOL

OF ECONOMICS AND POLITICALSCIENCE, 10–11

(January, 2015). In the first round, representatives of

any party in the Bundestag may participate, but the

second round is limited to only three candidates. Id.

In fashioning its rules prior to the 2015 election

season, the United Kingdom considered the examples

of countries like Canada and Germany to adopt a best

practice. Id. at 13. It ultimately included seven

candidates in its national debate in April, 2015. See,

Leaders’ debate: ICM/Guardian poll puts Miliband

ahead - just, THE GUARDIAN, April 2, 2015.40 More

39http://blogs.lse.ac.uk/medialse/2014/10/15/we-need-to-look-at-o

ther-parliamentary-democracies-for-ideas-about-how-to-runtelevised-debates/

40http://www.theguardian.com/politics/blog/live/2015/apr/02/lea

ders-debate-cameron-and-miliband-go-head-to-head-with-other-p

(continued...)
24

inclusive debate rules helped to change the

conversation in the United Kingdom, allowing the

Liberal Democrats to rise in prominence. A similar

phenomenon had occurred in Canada; the New

Democratic Party, traditionally a third party, rose to

second place in 2011; and in 2015, the Liberal Party

went from third place to first place.

U.S. presidential primary debates take a similar

approach, moving from inclusive to less inclusive, as

demonstrated in the Democratic Party presidential

debates in 2019 and 2020 that regularly raised the bar

for inclusion. Rushing directly to an exclusive, binary

general election debate, however, did not do the voters

any favors in 2020. After the first debate was plagued

by interruptions and insults, many analysts termed it

the worst in our history. See, e.g. Ryan Heath, “Worst

presidential debate in history”: Foreigners recoil at

Trump and Biden’s prime-time brawl, POLITICO,

Sept. 9, 2020:

Foreign leaders and observers are

expressing dismay at the spectacle of

Tuesday night’s melee between Donald

Trump and Joe Biden, with sound bites

ofthe bitter recriminations reverberating

around the globe.

The unrestrained format — which

quickly descended into a series of

extended brawls — is unfamiliar to

viewers in most other countries, where

40(...continued)

arties-live
25

serious political debates steeped in policy

and firmly controlled by the moderator

are the norm.

While global audiences tend to be

skeptical of Trump, the global reaction to

Tuesday’s debate goes deeper than

commentary on one political figure or

moment: Allies and foes, alike, are

interpreting it as yet another sign of the

decline in American democracy.41

This is not to suggest that U.S. presidential debates

must imitate the states or other countries. Instead, it

is evidence that the CPD has adopted a rule that is not

justified by ordinary debate inclusion rules, such as

orderly debates among serious candidates with

viewpoints reflective of public opinion. Rather, it

better reflects a rule designed to prevent competition.

See, Larry Diamond, Ending the Presidential-Debate

Duopoly, THE ATLANTIC, May 8, 2015.42

CONCLUSION

For these reasons, and the reasons stated in the

Petition, the Petitioner’s Writ of Certiorari should be

granted.

DATED: December 14, 2020

41https://www.politico.com/news/2020/09/30/the-worst-president

ial-debate-in-history-423765

42http://www.theatlantic.com/politics/archive/2015/05/ending-th

e-presidential-debate-duopoly/392480/
26

Respectfully submitted,

WILLIAM P. TEDARDS, JR.

Counsel of Record

1101 30th Street, NW, Suite 500

Washington, DC 20007

(202) 744-1214

BT@tedards.net

ANDREW S. PENROSE

FAIRVOTE

6930 Carroll Avenue, Suite 240

Takoma Park, MD 20912

(301) 270-4616

drew@penrosefamily.us

Counsel for Amicus Curiae FairVote