On November 5, New York state filed this brief in Libertarian Party of New York v New York State Board of Elections, 21-1464. This is the lawsuit over the new definition of a New York qualified party, and the new number of petitions for statewide independent candidates and the nominees of unqualified parties. The vote test for party qualification rose from 50,000 votes for Governor, to 2% for both president and Governor, which is now 172,364 votes. The statewide petition rose from 15,000 to 45,000. Both changes were made in April 2020. As a result, no statewide independent petitions in New York succeeded in 2020, and in November 2020 the Libertarian, Green, Independence, and SAM Parties lost their qualified status.
The state’s brief fails to engage the most important point in the case. New York claims the increases were due to the need to preserve the state from spending too much for its new public funding program for state office. But the Second Circuit already ruled in 2010 in Green Party of Connecticut v Garfield that states with public funding for candidates don’t need to treat all candidates equally, and states can make it far easier for candidates who are members of parties that polled 10% or 20% of the vote in the last election to get public funding, than other candidates. The state’s brief simply doesn’t mention that point. The Table of Contents to the state’s brief mentions the Connecticut case on two pages, but those pages don’t discuss the holding of the case.
The state also claims that it had to increase the requirements because New York ballots are confusing and having fewer candidates makes the ballots less confusing. But the state fails to recognize the point that New York’s bad ballot design is to blame for the confusion, and that 45 other states have cured the problem by switching to office-group ballots, which are not confusing.
The state also claims the higher requirements are necessary because the state has grown so much since the 50,000-vote test was set in 1936. On four pages, the state mentions that the number of registered voters is 2.5 times as high as it was in 1935. But the state never mentions that the number of votes cast in the state has not risen nearly so much. The 1936 presidential vote in New York state was 5,596,399; in 2020 it was 8,618,194. It increased by 54%, but the vote test has more than tripled, from 50,000 to 172,364 (2% of the 2020 presidential vote).
The state says the vote test for qualified status has been upheld by other courts, but all the other cases were from states that had a method for an unqualified party to transform itself into a qualified party in advance of any election (generally by a petition drive). New York state has no method for a group to become a qualified party in advance of an election.
The state says New York has the fifth highest statewide petition requirement now, but actually it is third. The state makes this mistake because its evidence ignores the existence of procedures in other states for party qualification; instead the state’s expert only submitted evidence about independent candidate procedures. This also causes the state to claim that California, New Mexico, and Oregon have a shorter period to collect signatures than New York does (New York petitions must be collected within six weeks). But California, New Mexico, and Oregon all give groups an infinite period of time to complete the procedure to become qualified.
The state claims on page 29 that neither the U.S. Supreme Court, nor any U.S. Court of Appeals, has ever struck down a petition below 5%. But the U.S. Supreme Court itself did so in two Illinois cases, Illinois State Board of Elections v Socialist Workers Party in 1979, and Norman v Reed in 1992. U.S. Appeals Courts that have struck down petitions below 5% include the Eighth Circuit in McLain v Meier in 1980, the Sixth Circuit in Graveline v Benson in 2021, and the Eleventh Circuit in Green Party of Georgia v Harris.
The state’s brief says the new 2% vote test is “middle of the pack” but doesn’t acknowledge there is a huge difference between requiring a party to get 2% for any statewide race, and requiring it to get 2% for president. Voters are far, far more likely to give their vote to a minor party candidate for an unimportant office than they are for president.
The state says on page 10 that the Libertarian Party’s best showing in New York was 95,033 votes for Governor in 2018, ignoring that the party got 108,530 votes for U.S. Senate in 1992, and also that Gary Johnson got 176,598 votes in New York for president in 2016. However, some of those votes were cast on the Libertarian line, but others on the Independence line. The Independence Party had also nominated Gary Johnson.
The state says on page two that the Libertarian Party’s presidential candidate in 2020 received less than 1%. Actually Jo Jorgensen, the Libertarian presidential nominee, received 1.18% in the nation, the highest percentage for any woman presidential candidate in history in a general election who was not a major party nominee. Presumably the state is talking about Jorgensen’s percentage inside New York, which was .70%.
Regardless of ALL conlaw genius folks —
— every election is NEW.
— individuals are nominated and elected — NOT *parties*
— separate is NOT equal — 1954 Brown v Bd of Ed.
Thus ALL the junk cases and briefs since 1968 Williams v Rhodes in SCOTUS.
—
>>> EQUAL ballot access tests for INDIVIDUAL CANDIDATES.
Added part of the ROT is *grandfather clause* type stuff in the 1888-1890 primary *reforms*
— NOOO test for D+R party gangs
Added subversion of 1-10-1 NOOO state Title of Nobility — state *special* privileges for certain state folks.
ANY LP lawyers with ANY Conlaw brain cells ???
Mr. Winger’s comments and insights regarding the State’s reply brief are helpful and to the point. I would add one comment regarding petitioning. Past decisions from judges in the 2nd circuit have pointed to the increased voter pool as justification for increasing the number of signatures required for ballot access. Despite the court’s refusal to accept the difficulty of meeting such a threshold, and of the petitioning process itself, in a way it doesn’t matter if there are 5 million, ten million or twenty million registered voters. Obtaining 45,000 valid signatures within a six-week period in late winter or early spring is a financial and manpower burden that creates a near impossible hurdle. It has been maintained that even the best petitioners are able to obtain an average of ten per hour. That translates to 4500 man-hours superficially, but realistically will mean twice that or 9,000 man-hours. Were candidates from the two major parties subjected to the same requirements no doubt some would fail, or be stretched to their limits. Looked at from this perspective, the blatantly anti-democratic nature of the new law comes clearly into focus.
What else would you expect from Jew York?
Whether it be direct monetary confiscations like candidate or party filing fees or indirect forced labor to petition for meaningless signatures, all ballot access laws are censorship and a form of taxation on choices allowed voters on the official state monopoly ballots. Ballot access laws are a tool to make voters powerless to avoid electing one or the other of the self-entrenched dominant parties. The pattern of monopoly self-entrenchment becomes more obvious when one sees the rigging between the dominate duopoly for control of redistricting every ten years. Both gerrymandering and ballot access laws are exercises in state monopoly power to manipulate voters by denying then freedom of choice among candidates.
Alternatively, all domestic voters could use an all write-in ballot in a format similar to the Federal Write-in Absentee Ballot available to voters outside the U S.
And gerrymandering could be mitigated by enabling voters to choose the electoral district they prefer in every election. But that takes us afield from which candidates are allocated to voters by the incumbents and which are banned.
If voting changed anything, it would be illegal. Voting is theater of the absurd to make suckers think they control government instead of the other way around.
These repressive new ballot access laws were Cuomo’s baby to destroy the Working Families Party (and kill off the Libertarians, while he was at it.) The idea was also to end cross-endorsement, leaving only the Democrats, Republicans, and Conservatives, with the Conservatives unable to team up with Republicans to defeat Democrats.
It backfired on Cuomo, and the new ballot access standards should be thrown out. It was clearly political and not for any state interest.
It was in the in interest of a one party democrap commie Mafia state. They still run New York even if the femo rats turned on their commie godfather Cuomo for the sin of being a male heterosexual.
Voting can’t change anything until the duopoly grip on censoring ballot is broken.
As we can now see from the resulting ruling, the fix is in. The mobocrats don’t want third parties making things messy, so Cuomo or no Cuomo, it’s time for third parties in New Yorkistan to go sleep with the fishes, caprice?