By: Alexandra Glover

Upon tweeting his plans to run for president on July 4^th, the bizarre journey of Kanye’s campaign as the presidential nominee for “The Birthday Party” triggered many questions. The first being whether Kanye’s campaign is a spoiling strategy, adopted by Republican campaigners to intentionally siphon votes away from Democratic nominee Joe Biden.^[1] But what is a spoiler, and is this legal?

A spoiler candidate is not affiliated with the two major political parties.^[2] When a voter “takes” their vote for a major party candidate and shifts it to the spoiler, this is the “spoiler effect.”^[3] A spoiler’s mere presence on ballots can distort an election’s outcome, but there is some debate as to whether they truly affect election results.^[4] Some states have altered their voting laws to protect third or non-party candidates, and their supportive voters, who participate in elections without distorting results.^[5] However, there is a push for system reforms to ensure spoilers do not adversely affect voting integrity.^[6]

Is Kanye’s campaign a “ploy?”^[7] Some argue yes, since Biden will likely be counting on the African American voters’ support, and Kanye, “who is Black and a hip-hop icon,” could potentially take these votes away.^[8] Kanye, who has regularly spoken with Jared Kushner since his campaign announcement, was asked if he was okay “siphoning off Black votes from the Democratic nominee, thus helping Trump.”^[9] He responded, “I’m not denying it . . . [t]o say that the Black vote is Democratic is a form of racism and white supremacy.”^[10]

If true, this gamesmanship is not necessarily illegal. Federal law has a “soft money ban” prohibiting candidates or their agents, like Kushner, from soliciting other candidates’ financial contributions exceeding $2,000.^[11] Thus, President Trump’s campaign team could not ask for much of Kanye’s financial support, and unless Kanye’s help was explicitly solicited, Kanye’s campaign costs are not included in the cap.^[12] President Trump has denied any involvement.^[13]

If collusion is not keeping Kanye off ballots, his questionable campaign practices are. Many states have ballot-safeguard statutes requiring filing-deadlines and state elector signatures.^[14] For example, Wisconsin barred Kanye from ballot access for missing filing deadlines.^[15] Additionally, a Virginia Circuit Court ruled to remove Kanye from their ballot because eleven elector signatures were obtained through “improper, fraudulent, or misleading means.”^[16]

Arizona has historically employed similar ballot safeguards as a “mechanism” to weed out “the cranks, the publicity seekers, the frivolous candidates [with] no intention of going through with the campaign,” creating a ballot-barrier for those running for office “as a lark.”^[17] Rasean Clayton of Arizona filed a complaint claiming Kanye could not run for president in Arizona under the Birthday Party banner pursuant to A.R.S. § 16-341 (Kanye is a registered Republican).^[18] Kanye countered that because the “Birthday Party” is not a party contemplated by the current statute, his run is permissible.^[19] The judge disagreed ruling that the “most sensible reading” of the statute prohibited “Mr. West’s nomination.”^[20] Therefore, Kanye will not be on Arizona ballots this November. 

Even though Kanye has managed to land on a few state ballots, it is unclear if this will actually make a difference.^[21] Spoiler candidates can have a drastic overall effect on elections, but Kanye would have to siphon Biden or Trump votes to cause the spoiler effect.^[22] While rap can influence a fan’s political beliefs, Kanye is not rating well with young Americans,^[23] and a recent poll showed only two percent of voters would vote for him should he appear on their ballot.^[24] One commentator stated, “we already tried the dumb celebrity thing and it failed.^[25] Further, as a registered Republican running under the Birthday Party banner, it could be just as likely that he will siphon Republican votes.

In conclusion, Kanye’s potential spoiling strategy may not be illegal, but it is not clearly benefitting President Trump either. Though Kanye continues to litigate and strategize for ballot access, his role in this election is likely more effective as an entertaining, if momentary, distraction from the actual candidates vying for the presidency. His threat to your vote? Small.

^[1] Dan Merica & Jeff Zeleny, Republican Operatives are Helping Kanye West Get on General Election Ballots, CNN Politics, (Aug. 5, 2020, 6:30 PM), https://www.cnn.com/2020/08/05/politics/kanye-west-ballot/index.html.

^[2] Roberta A. Yard, American Democracy and Minority Rule: How the United States Can Reform Its Electoral Process to Ensure “One Person, One Vote.”, 42 Santa Clara L. Rev. 185, 203 (2001).

^[3] Id.

^[4] See generally Ryan J. Silver, Fixing United States Elections: Increasing Voter Turnout and Ensuring Representative Democracy, 10 Drexel L. Rev. 239, 263 (2017).

^[5] See e.g., Baber v. Dunlap, 349 F. Supp. 3d 68, 78 (D. Me. 2018).

^[6] See generally Brian P. Marron, One Person, One Vote, Several Elections?: Instant Runoff Voting and the Constitution, 28 Vt. L. Rev. 343, 364-65 (2004).

^[7] Associated Press, Republicans Push Kanye 2020. But Will It Really Hurt Biden?, Hollywood Reporter, (Aug. 6, 2020, 6:23 PM), https://www.hollywoodreporter.com/news/republicans-push-kanye-2020-but-will-it-hurt-biden-1306352.

^[8] Id.

^[9] Id.

^[10] Helena Andrews-Dyer, I Do Not Want to Take Kanye West Seriously. But I Know That We Have To, Wash. Post, (July 19, 2020, 5:00 AM), https://www.washingtonpost.com/lifestyle/kanye-west-presidential-campaign/2020/07/18/7e043434-c905-11ea-8ffe-372be8d82298_story.html.

^[11] 52 U.S.C. § 30125 (2002); 52 U.S.C. § 30116 (2014).

^[12] Rick Hasen, Is Kanye West Breaking the Law by Coordinating with the Trump Campaign While Running for President? Perhaps, Election Law Blog (Aug. 13, 2020, 9:20 AM), https://electionlawblog.org/?p=114036.

^[13] See Merika & Zeleny, supra note 1.

^[14] See e.g., W. Va. Code § 3-5-23 (2018).

^[15] Mark Treinen, Kanye West Loses Lawsuit to Get on Wisconsin Presidential Ballot, Green Bay Press-Gazette, (Sept. 11, 2020, 11:18 PM), https://www.greenbaypressgazette.com/story/news/2020/09/11/kanye-west-loses-lawsuit-get-wisconsin-presidential-ballot/5775520002/.

^[16] Associated Press, Virginia Supreme Court Rejects Kanye West’s Ballot Bid, U.S. News, https://www.usnews.com/news/best-states/virginia/articles/2020-09-17/virginia-supreme-court-rejects-kanye-wests-ballot-bid (last visited Sept. 17, 2020).  

^[17] Adams v. Bolin, 271 P.2d 472, 474-75 (1954); A.R.S. § 16-341 (2019). 

^[18] Minute Entry, 4, Clayton v. West, No. 010553 (Ariz. Super. Ct. 2020). 

^[19] Id.  

^[20] Id. at 5.

^[21] Elana Lyn Gross, Kanye West Will Now Appear on the Presidential Ballot in Nine States, Forbes, (Aug. 26, 2020, 3:42 PM), https://www.forbes.com/sites/elanagross/2020/08/26/kanye-west-will-now-appear-on-the-presidential-ballot-in-eight-states/#6f3611052f02.

^[22] See Marron, supra note 2, at 364.

^[23] See Associated Press, supra note 7.

^[24] See Andrews-Dyer, supra note 10.

^[25] Id.