IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No.: 15-cv-1397 (TSC)

BRIEF OF AMICUS CURIAE INDEPENDENT VOTER PROJECT IN

SUPPORT OF MOTION FOR SUMMARY JUDGEMENT

S. Chad Peace, CA State Bar #290274

admitted pro hac vice

Peace & Shea LLP

2700 Adams Avenue, Suite 204

San Diego, CA 92116

Attorney for Amicus Curiae Independent Voter Project

LEVEL THE PLAYING FIELD,

PETER ACKERMAN, GREEN

PARTY OF THE UNITED 

STATES, and LIBERTARIAN

NATIONAL COMMITTEE, INC.

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 1 of 20
i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Independent 

Voter Project makes the following disclosure:

1. Amicus is not a publicly held corporation or other publicly held entity.

2. Amicus has no parent corporation.

3. No publicly held corporation or other publicly held entity owns 10% or

more of Amicus.

4. Amicus is not a trade association.

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 2 of 20
ii

TABLE OF CONTENTS

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

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE .............. 1

INTRODUCTION ...................................................................................................... 2

ARGUMENT.............................................................................................................. 5

I. Because of Anticompetitive Election Laws, Including the CPD’s Presidential 

Debate Rules, the Republican and Democratic Parties Have a Private 

Monopoly Over the Public Election Process That Threatens the Health of Our 

Representative Democracy. ............................................................................... 5

A. Both Major Political Parties Have Monopolized the Public Election Process 

By Limiting the Number of Competitive General Elections. ........................ 7

B. The CPD’s 15% Rule Further Monopolizes the Public Election Process By 

Reducing the Competition Over Ideas and Government Policies.................. 8

II. The Presidential Party Nomination Process Confuses Voters by Creating the 

Mere Appearance of Democracy, Because Party Nominees Are Selected By 

Private Party Rules That Are Not Subject to Constitutional Protections......... 10

III.Because Neither Major Party Represents the General Public, These Private 

Actors Cannot Be the Guardians of our Constitutional Democracy................ 12

IV. Conclusion....................................................................................................... 15

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 3 of 20
iii

TABLE OF AUTHORITIES

CASES

Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ................................................................6, 10

Cousins v. Wigoda, 419 U.S. 477 (1975).........................................................................................11

Evenwel v. Abbott, 578 U.S. ___ (2016)............................................................................................5

Nader v. Schaffer, 429 U.S. 989 (1976)...........................................................................................10

Williams v. Rhodes, 393 U.S. 23 (1968)............................................................................................9

Wittman v. Personhuballah, 136 S. Ct. 998 (2016)...........................................................................7

OTHER AUTHORITIES

Caitlin McCabe & Chris Palmer, At Least 180K Join GOP as Pa. Primary Nears, philly.com,

http://articles.philly.com/2016-03-30/news/71903218_1_pennsylvania-voters-partyregistrations-john-kasich. ...............................................................................................................6

Cal. Dem. Party Rules, Art. II, Sec. 2..............................................................................................10

Cal. Rep. Party Bylaws, Sec. 1.04(A)..............................................................................................10

Carl Hulse, Seeking to End Gerrymandering’s Enduring Legacy, New York Times (2016), 

http://www.nytimes.com/2016/01/26/us/politics/seeking-to-end-gerrymanderings-enduringlegacy.html. ....................................................................................................................................7

Congress and the Public, Gallup (March 2016), http://www.gallup.com/poll/1600/congresspublic.aspx....................................................................................................................................13

Congress has 11% Approval ratings but 96% Incumbency Rate, Politifact (2014), 

http://www.politifact.com/truth-o-meter/statements/2014/nov/11/facebook-posts/congress-has11-approval-ratings-96-incumbent-re-e/ ......................................................................................13

Congress Still Ranks Low in Public’s Eyes, Rasmussen (Dec. 2015), 

http://www.rasmussenreports.com/public_content/archive/mood_of_america_archive/congressi

onal_performance/congress_still_ranks_low_in_the_public_s_eyes ..........................................14

Democratic, Republican Identification New Historic Lows, Gallup (Jan. 2016), 

http://www.gallup.com/poll/188096/democratic-republican-identification-near-historicallows.aspx......................................................................................................................................13

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 4 of 20
iv

Does Gerrymandering Cause Polarization, Princeton University (2006), 

https://www.princeton.edu/~nmccarty/gerrymander11.pdf...........................................................7

Greg Parker, Millions of Voters Disenfranchised on Super ‘Undemocratic’ Tuesday, IVN.us 

(Mar. 1, 2016), http://ivn.us/2016/03/01/millions-of-voters-disenfranchised-on-superundemocratic-tuesday/. ..................................................................................................................6

Joshua Alvarez, Just 35 of 435 Elections Competitive after 201 years of Gerrymandering. IVN.us 

(2013), http://ivn.us/2013/10/25/just-35-of-435-elections-competitive-after-201-years-ofgerrymandering/. ............................................................................................................................8

Ledge King, Florida Legislators: More Partisan Than Most, Florida Today (March 5, 2016), 

http://www.floridatoday.com/story/news/2016/03/05/florida-legislators-more-partisan-thanmost/81364102/............................................................................................................................14

Letter from Curly Haugland, RNC National Committeeman for North Carolina, to Members of the 

RNC (March 11, 2016), http://dailycaller.com/wpcontent/uploads/2016/03/CURLY_HAUGLAND.pdf.................................................................12

Michael Dimock, Carroll Doherty, Jocelyn Kiley, a Russ Oates, Political Polarization in the 

American Public, Pew Research Center (June 12, 2014), http://www.peoplepress.org/2014/06/12/political-polarization-in-the-american-public/ ..........................................12

Nerdscreen: Rise of the Independents, NBC (2015), http://www.nbcnews.com/meet-thepress/nerdscreen-rise-independents-n386911. .............................................................................13

Party Divisions of the House of Representatives, History, Art & Archives of the U.S. House of 

Representatives (2016), http://history.house.gov/Institution/Party-Divisions/Party-Divisions/....6

Pippa Norris, Developments in Party Communications, Political Parties and Democracy in 

Theoretical and Practical Perspective (2005), 

https://www.hks.harvard.edu/fs/pnorris/Acrobat/NDI%20Final%20booklet%20-

%20Communications.pdf...............................................................................................................5

The 2016 Results We Can Already Predict via Politico (Dec. 29, 2015), 

http://politicalmaps.org/the-2016-results-we-can-already-predict-via-politico/............................5

Thomas Stratmann, Ballot Access Restrictions and Candidate Entry in Elections, European 

Journal of Political Economy, 21, 59–71 (2005), http://aceproject.org/ero-en/topics/parties-andcandidates/ballotaccess.pdf ........................................................................................................5, 7

United States House of Representative Elections, Wikipedia (2016), 

https://en.wikipedia.org/wiki/United_States_House_of_Representatives_elections,_2014..........6

Voter Turnout, United States Election Project (2016), http://www.electproject.org/home/voterturnout/voter-turnout-data. .............................................................................................................8

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 5 of 20
1

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE

S. Chad Peace is a member of the California State Bar and has been admitted 

to this court pro hac vice. Mr. Peace is an attorney for the Independent Voter Project 

(IVP) and a partner at the law firm of Peace & Shea LLP. He has no other financial

or client interest in the outcome of this litigation, and no attorney for a party has

helped write this brief or defrayed the cost of its preparation.

Founded in 2006, Amicus Curiae IVP is a 501(c)(4) organization that seeks 

to educate voters about voters’ non-partisan rights and other important public policy 

issues, to create a climate for otherwise disenfranchised voters to engage in the 

political process, and to encourage non-partisan voters to vote and participate in the 

democratic process. IVP is most well-known for authoring California’s Proposition 

14, passed by the voters in 2010, which established the “top-two” nonpartisan 

primary California conducts today.

IVP works to educate all eligible voters, regardless of their party preferences, 

through online and offline voter education programs and participates in legal 

actions that assert and support every qualified voter’s right to participate during all 

integral stages of the electoral process.

The amicus brief istimely filed pursuant to the Order dated December 2, 2015 

and IVP’s Motion for Leave granted on March 8, 2016.

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 6 of 20
2

INTRODUCTION

 

The right to representation is a nonpartisan right and a guarantee of our 

representative democracy. Our political class, however, has allowed an 

unconditional loyalty to a “two-party system” to shortchange any meaningful 

discussion of whether partisan representatives are still incentivized to represent the 

nonpartisan public. Without serious introspection, the two parties will continue to 

measure their strength by the number of offices they hold, rather than the number 

of voters they represent. The long-term predictable consequence of using this 

measuring stick will be a loss of the nonpartisan right to representation altogether.

Over the years, political parties have risen, evolved, and been replaced as the 

political class adapted to calls from a changing society. Today, however, a 

substantial plurality of American voters do not feel represented by either of the two 

major political parties. Yet calls for change go unanswered because the political 

class from both parties, over several decades, has erected barriers to prevent 

meaningful electoral competition. From gerrymandering, to closing primaries, to 

excluding outsiders from public debates, both parties have slowly chipped away at 

the laws and rules that incentivize the two major parties and their representatives to 

adapt to new calls for change. 

Although we have generally embraced economic theories that recognize the 

inherent tendency of powerful corporations to engage in collusive and/or 

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 7 of 20
3

monopolistic behaviors, we have not applied the same analytical principles to our 

democratic process. When consumers are severely and negatively impacted in the 

business sector, for example, we recognize the government’s responsibility to 

intervene by removing the barriers to competition. More competition, we generally 

accept, improves the health of the economy by incentivizing businesses to provide 

better products and services to their customers. 

Yet our modern political theorists have accepted the Republican and 

Democratic parties’ legitimacy within our “two-party system” as so axiomatic that 

we have allowed them, through their elected and appointed members, to rewrite our 

laws, promulgate regulations, and establish court precedents without regard to the 

negative impact that this collusive behavior has on the consumers of democracy;

the People. Rather, contemporary legal and scientific analysis is generally limited 

to the impact of certain laws on the competition between the two parties themselves

rather than an analysis of whether a given law incentivizes the two major parties to 

be more representative of the general public.

We cannot leave it to the Republican and Democratic parties to protect the 

nonpartisan right to representation. The bipartisan partnership that governs the 

Commission on Presidential Debates (CPD), for example, is not incentivized to 

serve the nonpartisan purpose that its tax-deductible status demands. This is 

because, on its face, the CPD is a private partnership between two minorityrepresenting political parties. And because the CPD has a fiduciary duty to protect 

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 8 of 20
4

the private partisan interests of its partners, the influence the CPD exerts over our

nonpartisan right to a representative democracy must be considered within this 

context.

Today, for example, 81% of voters believe that it is important to have 

independent candidates run for office and 65% of voters wish they had the option 

of voting for an independent candidate for president. Yet the CPD has established 

rules that ensure only a Republican and a Democrat will participate in the 

presidential debates. Such a large number of voters must not be denied the right to 

a robust and inclusive political discourse because it is inconvenient to the existing 

major parties or because the CPD has a private interest in protecting its bipartisan 

corporate partners. 

Put simply, the two major parties have complete control over the initial and 

most important stages of the political process, including the primary elections and 

the presidential debates. Unless this Court is willing to consider the consequences 

of the CPD’s private control over our public discourse, we risk losing our

nonpartisan right to a representative democracy forever.

With these considerations, Amicus arguesin support of Plaintiffs’ Motion for 

Summary Judgment and Proposed Order.

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 9 of 20
5

ARGUMENT

I. Because of Anticompetitive Election Laws, Including the CPD’s 

Presidential Debate Rules, the Republican and Democratic Parties 

Have a Private Monopoly Over the Public Election Process That 

Threatens the Health of Our Representative Democracy.

Representatives serve their entire constituency, not just the members of their 

political parties.

1 Due in part to onerous ballot access laws for independent and third 

party candidates,

2 campaign finance regulations that allow political parties to 

conduct unlimited member communications,

3 and gerrymandering tactics that have 

caused our political commentators to color districts red and blue as if they belong 

to a political party and not the people,

4 almost every state requires that a candidate 

first win a major party primary or caucus for that candidate to be considered ‘viable’ 

in the general election.

As a result, and despite almost half of the electorate who now self-identify as 

independent of either major political party, not a single member of the House of 

Representatives was elected in 2014 without first winning the majority party’s

																																																												 1 See, Evenwel v. Abbott, 578 U.S. ___ (2016) (holding that, “the Constitution and the 

Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible 

or registered to vote.”)

2 Thomas Stratmann, Ballot Access Restrictions and Candidate Entry in Elections, European 

Journal of Political Economy, 21, 59–71 (2005), http://aceproject.org/ero-en/topics/parties-andcandidates/ballotaccess.pdf

3 Pippa Norris, Developments in Party Communications, Political Parties and Democracy in 

Theoretical and Practical Perspective (2005), 

https://www.hks.harvard.edu/fs/pnorris/Acrobat/NDI%20Final%20booklet%20-%20Communic

ations.pdf

4 The 2016 Results We Can Already Predict via Politico (Dec. 29, 2015), 

http://politicalmaps.org/the-2016-results-we-can-already-predict-via-politico/

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 10 of 20
6

primary in a given district.

5 In fact, nearly 100% of the candidates elected to public 

office in the last 50 years had to first win a major party primary.

6 The consequence 

of this electoral reality is that nonpartisan voters have a very limited opportunity to 

participate meaningfully in the selection of the viable candidates, unless they forfeit 

their First Amendment right not to association with a private political party.

7 On 

“Super Tuesday” of this year, for example, over 5 million independent voters were 

excluded from participating in the primary election process because they refused to 

affiliate with a political party.

8 The number of voters who are longtime members, 

or recently joined one of the two political parties only because they want an 

opportunity to cast a meaningful vote during the important primary stage of the 

election is not easily measureable, but it is significant.

9

 

In any case, laws that condition a voter’s meaningful participation in the 

democratic process on joining a private political party robs the People of their 

																																																												 5 A compilation of statistics reporting on the 2014 United States House of Representatives 

elections, available at United States House of Representative Elections, Wikipedia (2016), 

https://en.wikipedia.org/wiki/United_States_House_of_Representatives_elections,_2014.

6 Party Divisions of the House of Representatives, History, Art & Archives of the U.S. House of 

Representatives (2016), http://history.house.gov/Institution/Party-Divisions/Party-Divisions/

7 See Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (“...a corollary of the right to 

associate is the right not to associate.”).

8 This number was calculated by combining the number of non-partisan voters in states holding 

primary elections on March 1, 2016, referred to as “Super Tuesday.” These states include 

Alabama, Arkansas, Colorado, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, 

Texas, Vermont, Virginia. For further analysis, see Greg Parker, Millions of Voters 

Disenfranchised on Super ‘Undemocratic’ Tuesday, IVN.us (Mar. 1, 2016), 

http://ivn.us/2016/03/01/millions-of-voters-disenfranchised-on-super-undemocratic-tuesday/. 9 For example, at least 180 thousand voters joined the Republican Party in Pennsylvania in order 

to vote for in the primary election. For more information, see Caitlin McCabe & Chris Palmer, 

At Least 180K Join GOP as Pa. Primary Nears, philly.com, http://articles.philly.com/2016-03-

30/news/71903218_1_pennsylvania-voters-party-registrations-john-kasich.

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 11 of 20
7

nonpartisan right representative democracy by having an anticompetitive effect on 

the marketplace of ideas. 

A. Both Major Political Parties Have Monopolized the Public Election 

Process By Limiting the Number of Competitive General Elections.

Both political parties have worked through the state legislatures to protect 

their party-loyal incumbents by limiting the voting power of nonpartisan voters10. 

They do so, for example, by drawing legislative districts in a way that forces 

electoral competition to occur during the primary stage of the election.

11 As 

demonstrated by the recent arguments before the Supreme Court in Wittman v. 

Personhuballah, our party-appointed judges have accepted incumbent protection as 

a legitimate exercise of state-granted legislative authority,

12 even though such

gerrymandering reduces competition in the only nonpartisan stage of the public 

election process: the general election.

13

As a result, just 35 of 435 congressional general elections were competitive 

																																																												 10 Thomas Stratmann, Ballot Access Restrictions and Candidate Entry in Elections, European 

Journal of Political Economy, 21, 59–71 (2005), http://aceproject.org/ero-en/topics/parties-andcandidates/ballotaccess.pdf.

11 Carl Hulse, Seeking to End Gerrymandering’s Enduring Legacy, New York Times (2016), 

http://www.nytimes.com/2016/01/26/us/politics/seeking-to-end-gerrymanderings-enduringlegacy.html. 12 See generally, Wittman v. Personhuballah, 136 S. Ct. 998 (2016). (Upholding incumbency 

protection as a legitimate government interest. The court recognized, for example, that “courts 

have often treated incumbency protection even in this limited context as ‘distinctly subordinate’

to constitutional and statutory imperatives.” The court, therefore, upheld incumbency protection 

as a legitimate purpose in this case without any extended discussion as to the discriminatory 

effect that this form of gerrymandering districts has on the right to vote, generally.)

13 Does Gerrymandering Cause Polarization, Princeton University, 14 (2006), 

https://www.princeton.edu/~nmccarty/gerrymander11.pdf (citing that “the number of 

competitive districts fell by 92 in 1983, 25 in 1993, and 42 in 2003.”)

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 12 of 20
8

in 2014.

14 This means that 90% of our representatives are held accountable only by

the voters who participate in the major party primary in any given district, and are 

therefore, not incentivized to represent the rest of the electorate. And because the 

average voter turnout in the 2014 primaries was just about 10%,

15 a relatively small 

number of partisan voters exert substantial control over our government. It should 

be no surprise, therefore, that extreme partisanship is heavily represented by our 

current Congress. 

The natural consequence of our partisan election process, therefore, is the 

institutionalization of minority rule. Indeed, the interests of the minorityrepresenting political parties are so embedded in the Country’s establishment that 

the Federal Elections Commission (FEC) defends the right of two political 

organizations to exclusive bipartisan control over our presidential debates, despite 

the CPD’s nonpartisan state mandate.

B. The CPD’s 15% Rule Further Monopolizes the Public Election 

Process By Reducing the Competition Over Ideas and Government 

Policies.

The CPD’s 15% rule inhibits the competition of ideas and governmental 

policies that are at the core of our electoral process and First Amendment 

freedoms. Without participating in one of the two parties’ private nomination 

																																																												 14 Joshua Alvarez, Just 35 of 435 Elections Competitive after 201 years of Gerrymandering. 

IVN.us (2013), http://ivn.us/2013/10/25/just-35-of-435-elections-competitive-after-201-yearsof-gerrymandering/.

15 Statistics available at: Voter Turnout, United States Election Project (2016), 

http://www.electproject.org/home/voter-turnout/voter-turnout-data.

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 13 of 20
9

processes, a candidate cannot realistically qualify for the presidential debates. And 

without entrance into the presidential debates, no candidate can challenge the 

nominees of the two parties in the competition of ideas and governmental policies. 

As the Court reasoned in Williams v. Rhodes when it struck down the State 

of Ohio’s restrictive election laws that prevented third parties from being placed 

on the primary election ballot:

The fact is, however, that the Ohio system does not merely favor a 

‘two-party system’; it favors two particular parties the Republicans and 

the Democrat – and, in effect, tends to give them a complete monopoly. 

There is, of course, no reason why two parties should retain a 

permanent monopoly on the right to have people vote for or against 

them. Competition in ideas and governmental policies is at the core of 

our electoral process and of the First Amendment freedoms.

393 U.S. 23, 32 (1968).

Similarly, in this case, the CPD’s 15% rule does not merely favor two 

particular political parties in the competition of ideas and governmental policies, it 

favors two particular parties – and, in effect, tends to give them a complete 

monopoly for two main reasons: (1) only the candidates that participate in the 

major party primaries and caucuses receive the widespread public exposure 

necessary to meet the 15% threshold,

16 and (2) only the candidates that participate 

in the presidential debates will be considered viable candidates in the general 

																																																												 16 Administrative Complaint against the Commission on Presidential Debates, Attorneys for 

Complainants Level the Playing Field and Peter Ackerman, page 35-36 (2014), 

http://www.shapiroarato.com/wp-content/uploads/2015/03/Complaint-against-the-CPD9.10.14.pdf 

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 14 of 20
10

election. With these two considerations, the CPD’s 15% rule gives the two 

particular party nominees a decided advantage in the competition of ideas and 

governmental policies. This advantage is in direct conflict with the competitive 

democracy that our Supreme Court has historically sought to preserve.

Therefore, the CPD’s 15% rule reduces the influence of independent and 

third party candidates, further insulating the two major parties from the meaningful 

competition over ideas and government policies that is at the core of our electoral 

process and First Amendment freedoms.

II. The Presidential Party Nomination Process Confuses Voters by 

Creating the Mere Appearance of Democracy, Because Party 

Nominees Are Selected By Private Party Rules That Are Not Subject 

to Constitutional Protections.

The rules of party primaries, caucuses, and other nomination procedures are

governed by their private corporate bylaws,

17 and therefore, participants have no 

constitutionally protected right to cast a meaningful vote in them.

18 Even though 

presidential primaries and caucuses, for example, are almost exclusively funded by 

taxpayers and administered by public officials, the courts have held that voters do 

not have standing to challenge actions taken by party leadership that manipulate 

																																																												 17 See, e.g. Cal. Dem. Party Rules, Art. II, Sec. 2 (“In the event of such [State Party rules] 

conflict with state laws, state Parties shall be required to take provable positive steps to bring 

such [state] laws into conformity [with party rules]”); see also, Cal. Rep. Party Bylaws, Sec. 

1.04(A) (“[T]hese bylaws shall govern and take precedence over the California Elections Code 

or other law to the contrary.”)

18 See, Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000), (holding that the corollary of 

the right of association is the right to not associate.); see also, Nader v. Schaffer, 429 U.S. 989 

(1976). 

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 15 of 20
11

the outcome of the nomination process, and even when those actions are taken

after the votes have been cast.

19 As a consequence, voters have been deceived into 

believing their votes in the party nomination process serves the voters. In reality, 

the party primaries and caucuses serve the party leadership who have the power to 

write and change rules outside the reach of our constitutional protections. 

For example, the private rules governing the Democratic National 

Committee’s (DNC) nomination process allow for superdelegates to ignore the 

outcome of a state’s primary elections altogether. What could be more confusing 

to a voter than explaining to them that their vote doesn’t really matter in the 

“Democratic” Party’s primary?

Similarly, the nominating process of the Republican National Committee 

(RNC) is governed by private rules designed to protect party leadership against the 

will of its members. Delegates are not bound, as most voters would rationally 

assume, to vote for the candidate who received the majority of the popular vote in 

the primary elections and caucuses. As a Republican National Committeeman 

from North Dakota and a member of the RNC’s Standing Rules Committee

recently explained, “it doesn’t make any difference what has happened in terms of 

primary voters, because they don’t count at the convention. It’s only the delegates 

																																																												 19 See generally, Cousins v. Wigoda, 419 U.S. 477, 493 (1975), (holding that a party convention 

is the proper forum for determining intra-party disputes, not the courtroom).

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 16 of 20
12

at the convention whose votes matter.

20

Fact is, both major parties promulgate rules that are not democratic. And

those voters who choose to participate in the party nomination processes because 

they believe it is a part of our democratic process have been misled. Therefore, the 

two major parties’ presidential nomination process cannot serve as a surrogate for 

the representative electoral process that our constitutional democracy demands.

III. Because Neither Major Party Represents the General Public, These 

Private Actors Cannot Be the Guardians of our Constitutional 

Democracy. 

Although Americans are disassociating with both major political parties at an 

increasingly rapid rate, our representatives are at the same time becoming more and 

more partisan.

21 This reality alone should cause us to question the wisdom of 

entrusting the two parties with exclusive control over any meaningful stage of the 

election process, including the presidential debates.

As of January 2016, Gallup reports that 42% of Americans identify as 

politically independent. Democratic and Republican registration has reached near 

historic lows, with just 29% of Americans identifying as Democratic, and just 26%

																																																												 20 Haugland further contends that the requirement to bind convention delegates only to primary 

results was repealed in 1980. Letter from Curly Haugland, RNC National Committeeman for 

North Carolina, to Members of the RNC (March 11, 2016), http://dailycaller.com/wpcontent/uploads/2016/03/CURLY_HAUGLAND.pdf

21 Michael Dimock, Carroll Doherty, Jocelyn Kiley, & Russ Oates, Political Polarization in the 

American Public, Pew Research Center (June 12, 2014), http://www.peoplepress.org/2014/06/12/political-polarization-in-the-american-public/

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 17 of 20
13

as Republican.

22 This is the fifth consecutive year where at least four in ten

American adults identify as political independents, prompting Gallup to report that

“Americans' attachment to the two major political parties in recent years is arguably 

the weakest Gallup has recorded since the advent of its polls.

23” 

In Florida, for example, despite being a closed primary state where only party 

members can participate in the primaries, the number of independent voters has 

grown by one million voters in the last 10 years. At the same time, the Democratic 

Party experienced an increase of just 300,000 new members, and the Republican

Party just 200,000.

24 That means that twice as many voters who took the time to 

register to vote would rather forgo their opportunity to vote at a meaningful stage 

of the election than associate themselves with a private political party.

Yet, every single one of Florida’s state and federal representatives are 

members of either the Democratic or Republican Party. Further, at a national level, 

partisan incumbents have close to a 95% re-election rate,

25 despite the 84% of 

Americans who disapprove of the way Congress is handling its job,

26 and just 9% 

																																																												 22 Democratic, Republican Identification New Historic Lows, Gallup (Jan. 2016), 

http://www.gallup.com/poll/188096/democratic-republican-identification-near-historicallows.aspx.

23 Id.

24 Nerdscreen: Rise of the Independents, NBC (2015), http://www.nbcnews.com/meet-thepress/nerdscreen-rise-independents-n386911.

25 Congress has 11% Approval ratings but 96% Incumbency Rate, Politifact (2014), 

http://www.politifact.com/truth-o-meter/statements/2014/nov/11/facebook-posts/congress-has11-approval-ratings-96-incumbent-re-e/

26 Congress and the Public, Gallup (March 2016), http://www.gallup.com/poll/1600/congresspublic.aspx

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 18 of 20
14

of all voters who think the average member of Congress listens to the voters who 

are not members of their party.

27 It should be no surprise, therefore, that the extreme 

partisanship in Florida and nationwide has been so undemocratically divisive.

28

This is because, as the power of nonpartisan voters to participate in the 

electoral process is diminished, the major parties are incentivized by law to be 

responsive to the more partisan base that remains. Furthermore, because political 

parties are not state actors, the Federal Election Commission has an obligation to 

scrutinize any attempt by the two private parties to further diminish the power and 

influence of the public. But they have not done so.

The CPD is a state-sanctioned and tax-deductible organization that governs 

one of the most important components of our democratic election process: the 

conversation between the viable candidates for the next President of the United 

States and the citizens of this great nation. But because the CPD is a partnership 

between two parties that have a competitive self-interest in reducing the influence 

of competitors, it is a natural and predictable consequence that its actions will often 

conflict with its nonpartisan purpose. That the 15% rule has the effect of limiting 

the presidential debates to a competition between only the Republican and 

																																																												 27 Congress Still Ranks Low in Public’s Eyes, Rasmussen (Dec. 2015), 

http://www.rasmussenreports.com/public_content/archive/mood_of_america_archive/congressio

nal_performance/congress_still_ranks_low_in_the_public_s_eyes

28 Ledge King, Florida Legislators: More Partisan Than Most, Florida Today (March 5, 2016), 

http://www.floridatoday.com/story/news/2016/03/05/florida-legislators-more-partisan-thanmost/81364102/.

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 19 of 20
15

Democratic nominees is evidence under any political theory that embraces a healthy 

competition over ideas and government policies that this bipartisan partnership 

cannot be trusted as the guardians of our constitutional democracy. 

Therefore, this court should safeguard our constitutional democracy from the

CPD’s bipartisan partnership that has colluded against it.

IV. Conclusion

Anticompetitive election laws, including the CPD’s presidential debate rules 

have given the Republican and Democratic parties a private monopoly over the 

public election process. Such a monopoly threatens the health of our democracy and 

all of its institutions. Therefore, the court should grant Plaintiffs’ Motion for 

Summary Judgment.

Dated this 13th day of April, 2016.

Respectfully submitted,

 /s/ S. Chad Peace

S. Chad Peace, CA State Bar #290274

Peace & Shea LLP

2700 Adams Avenue, Suite 204

San Diego, CA 92116

Attorney for Amicus Curiae Independent Voter 

Project

Case 1:15-cv-01397-TSC Document 38 Filed 04/13/16 Page 20 of 20