This New York Times article, by Richard W. Stevenson, about Americans Elect, misleads its readers. It says that only 30 states permit a group to petition for ballot access in the odd year before the election. The New York Times is not the first important publication to make this mistake; the Boston Globe made a similar mistake a few weeks ago, in an article by Brian Mooney, who said that only 28 states permit odd-year petitioning. Reporters, even of the most prestigious publications, have been lazy, and when an Americans Elect spokesperson tells them something, they don’t check it independently.

The only states in which Americans Elect would not have been permitted to be petitioning (or doing other tasks to get on the ballot, such as getting registered voters) during 2011 are Connecticut, Illinois, New York, Pennsylvania, Texas, Virginia, Washington, and Wisconsin. Some of the odd year procedures require a stand-in presidential candidate, for groups that haven’t yet chosen their presidential candidate. Americans Elect would rather not use stand-ins now, although they will start using stand-ins in January 2012.

Also, a few of the procedures permitted during odd years are so difficult, even Americans Elect isn’t trying them. For example, even Americans Elect with all its financial resources did not attempt to qualify itself as a party in Massachusetts, because that requires approximately 40,000 voters as members of Americans Elect. Also Americans Elect did not attempt the Minnesota party petition, which requires 105,352 signatures (5% of the 2010 vote cast). The Minnesota procedure has existed in the law since 1913 and has never been used.

Two states that formerly did not permit petitioning in odd years, Rhode Island and Arkansas, had their laws declared unconstitutional. Petitioning to create a new ballot-qualified party is First Amendment activity, and rationally people may wish to form a new party, and get it recognized, at any time, odd year or even year.