If Gary Johnson Polled 50,000 Votes in New York, Opportunity Exists to Sue to Overturn New York Definition of “Political Party”

No one knows yet if Gary Johnson received as many as 50,000 votes for President this month in New York state. The preliminary total for Johnson, gathered by the news media, is 42,452. However, the total on election night in New York state, as in most states, is far below what the final total will be. In 2010, New York city finished its official canvass on December 2, 2010, and the final results were 17% higher than the election night total.

The New York State Board of Elections did not release 2010 election returns until December 13, 2010, and chances are the 2012 results will not be known until mid-December 2012.

New York state defines “party” to be a group that polled 50,000 votes for Governor. When this definition was written, New York state elected its governor every two years. There is a plausible argument to be made that it is unconstitutional for a state to make it literally impossible for a group to become a “political party” at any point during a presidential election year. New York and Indiana are the only states in which a group cannot qualify as a “political party”, except on election day in mid-term years.

In 1980, the Libertarian Party polled 52,648 votes for President, and after the election was over, filed a lawsuit, alleging that it had shown enough voter support to qualify as a political party. However, the attorney who filed the lawsuit erroneously sued the New York Secretary of State, instead of the State Board of Elections, which was a fatal procedural flaw.


If Gary Johnson Polled 50,000 Votes in New York, Opportunity Exists to Sue to Overturn New York Definition of “Political Party” — 7 Comments

  1. Thanks Richard.

    I do not believe we have the resources to file such and action, nor do I believe it will be successful, but I will raise the subject with my state committee.

    Thanks for all you have done to assist the various state affiliates throughout the years on ballot access issues.

  2. The lawsuit would be a strong one. New York state has already acknowledged that the basis for determining which groups qualify as a party is the number of votes it polls. New York could use how many registered members a group has, but it does not do that. The state has acknowledged that votes are what counts, for party recognition. The Libertarian Party polled more votes for President this year than two parties that the state does recognize as “parties.”

    It is outlandish that a group cannot possibly be recognized as a party in New York, no matter how much support it has, during a presidential election year. A new party that carried New York in the electoral college and even elected the President could not possibly qualify as a “party” in New York. There is no state interest in that policy, which is obvious when one considers that 48 states and D.C. do make such recognition possible.

  3. Would winning such a lawsuit mean that a political party would have to poll 50,000 votes every two years? I’m guessing that it is every four years at the present time.

  4. #3, that would be determined later by the New York legislature. The legislature would be free to do as many other states do, and say when a party meets the vote test, it gets four years, not just two years, of status.

  5. For clueless moron ballot access lawyers and judges –
    Each election is NEW and has zero to do with any prior stuff since the first atom was formed — except the number of ACTUAL voters in the prior election in the election area involved — for ballot access in the next election.

  6. One of my first questions would be, presuming we did have more than 50K votes for GJ, is what does the statute say?
    Does it say 50K for any statewide candidate, or does it specify governor only?

    Unlike some of my colleagues in the LPNY, I believe we need significant push back by one of the only avenues that we have that has any teeth, and that would be by lawsuit.

    I have also suggested generally lawsuits against public forum media outlets that illegally discriminate against permitting our candidates to participate in the public debates for these offices.

    Mark points out that he does not believe we have the resources to pursue such lawsuits.
    However, and perhaps I am naive in my understanding of this, but it would appear that a majority of the costs involved are professional fees.

    However, I have personally prosecuted rather extensive federal and state lawsuits pro se. And although there are certainly costs involved, it typically is a tenth of what represented suits cost.

    The only legal question I would have on that is standing. Could I, as a litigant, claim standing in prosecuting such a lawsuit? If so, then I would consider pursuing one forthwith (presuming we did get 50K votes).

    I put that question to Mr. Winger and to Mr. Axinn.

  7. Gary –

    Based on my non-lawyer understanding of the law, the party would be the only organization with standing, as the harm and remedy would only apply to LPNY. If you are a member of LPNY, and are admitted to the bar or have some law school (this rule might vary by state) you should be able to litigate on behalf of LPNY, if they request it, on a pro se basis.

    Don’t take my word on this, though. Again, I’m not a lawyer and I’m not familiar with NY laws and regulations. Thankfully, the LPKY now have several friends of the party who are lawyers.

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