TWO NEW YORK COURTS ENJOIN EARLY PETITION DEADLINE, BUT THEN HIGHER COURTS BLOCK RELIEF

On August 30, the Mayor of Buffalo, New York, Byron Brown, filed a lawsuit in state court against the May petition deadline for independent candidate petitions. On the same day, some voters who want to vote for him filed a lawsuit in federal court, also against the May petition deadline.

The Mayor had lost the Democratic primary for re-election in June 2021, so he had then circulated a petition to get on the ballot as an independent candidate, using the slogan "Buffalo Party." But his petition was rejected because the petition deadline for independents, ever since 2019, has been in May (before 2019, it was in August).

New York has no "sore loser" law, and there have been many politicians in New York who lost a major party primary but then ran in the general election anyway, as the nominee of a minor party, or as an independent.

The Mayor’s petition had enough valid signatures, but it was rejected because it was filed too late. The basis for his lawsuit is that almost universally, courts have held that independent candidate petition deadlines can’t be earlier than primary day. Yet New York’s petition deadline is 28 days before the primary. The most important precedent that early petition deadlines are unconstitutional is Anderson v Celebrezze, 460 U.S. 780 (1983). In that case, the U.S. Supreme Court said that the March petition deadline for independent presidential candidates in Ohio was unconstitutional.

The state of Ohio vigorously argued that the deadline should be upheld, because that deadline blocks "sore losers".

But the U.S. Supreme Court said that even though John Anderson was a "sore loser", states cannot stop "sore losers" by making the independent deadline early. If states want to stop "sore losers", they can do that directly. But they can’t do it indirectly, by tinkering with petition deadlines. An early petition deadline injures independent candidates who are not sore losers.

Based on the Anderson precedent, and over 50 other precedents in lower courts, Mayor Brown should have won his cases. He did win them both in the first round. In federal court and state court alike, he won on September 7.

But on September 16, the state Appellate Division reversed the lower state court, and upheld the constitutionality of the May petition deadline.

The Appellate decision had held the oral argument earlier that day. At the oral argument, one of the four justices, Stephen K. Lindley, said vociferously that Brown should lose because he is a "sore loser". Justice Lindley said that Anderson was not a "sore loser". The attorney for the Mayor then responded, "He certainly was!" Anderson had run in twenty Republican presidential primaries in 1980 and had lost them all. That is why, on April 24, 1980, he bowed out of the race for the Republican presidential nomination and instead said he would be an independent candidate.

When the decision came out a few hours later, it said that the May deadline is constitutional because the state must send out overseas absentee ballots 45 days before the general election, and therefore the May petition deadline is needed so the ballot can be finalized.

No one can believe such a statement. The deadline for mailing out overseas absentee ballots this year is September 17, and it is absurd to argue that therefore the independent petition deadline must be in May. The decision also said the state has an interest in "ensuring the integrity and reliability of the electoral process" and "promoting political stability." These are just code words for blocking sore losers.

Tradition of Sore Losers

New York has a long tradition of accepting sore losers. In the 35 years I have been watching election law bills in the New York legislature, I don’t recall seeing a single bill ever introduced that proposed to outlaw "sore losers". Here is a partial list of prominent political figures who have been "sore losers" in New York:

1. John V. Lindsay lost the Republican primary for Mayor of New York city in 1969. But he then got on the general election ballot as the nominee of his own "Independent Party" and he also was the nominee of the Liberal Party. He won the general election.

2. Mario Cuomo lost the Democratic primary for Mayor of New York city in 1977. But then he got on the general election ballot as the Liberal Party nominee, and polled 45% in the general election.

3. Jacob Javits lost the Republican nomination for U.S. Senate in 1980, but he appeared on the general election ballot as the nominee of the Liberal Party. He polled 11%.

4. Andrew Cuomo lost the Democratic primary for Governor in 2002, but he appeared on the November ballot anyway as the nominee of the Liberal Party, although he did not campaign.

5. New York city councilmember Sal Albanese lost the 2017 Democratic primary for Mayor of New York city, but he got on the general election ballot anyway as the Reform Party nominee.

Political Scientists Say "Sore Loser" Laws are Harmful

Even without the Anderson precedent, the Appellate Justices were unwise to assume that "sore losers" injure the public. Political scientists who have studied sore loser laws generally agree that such laws harm the system. See the 2013 paper, "Sore loser laws and Congressional Polarization" by Michael S. Kang, Barry C. Burden, and Bradley Jones.

Definition of an Independent

The Appellate decision says Mayor Brown is "far from the archetypal ‘independent candidate’ whose interests Anderson and its progeny seek to protect. Petitioner has been in elective office for the last 25 years, has served four terms as Mayor of Buffalo, and first chose to participate in the Democratic primary election in lieu of filing a timely independent nominating petition."

John Anderson, when he declared as an independent candidate, had served ten terms in Congress, was currently in Congress, listed himself all during 1980 as a "Republican" in the Congressional Directory, and had been chair of the House Republican Conference 1969-1979. There is no difference between Mayor Brown and John Anderson.

Three former presidents ran for the presidency outside the two major parties: Martin Van Buren was the Free Soil Party nominee in 1848; Millard Fillmore was the American Know-Nothing candidate in 1856; Theodore Roosevelt was the Progressive nominee in 1912. Other experienced major party politicians who ran for president outside the two major parties include current and former U.S. Senators (Robert La Follette and Eugene McCarthy).

They also include former or current Governors (George Wallace, Strom Thurmond, and Lester Maddox); and a former Vice-President, Henry Wallace. The Appellate decision seems to have been written by someone ignorant of basic history.

Other Errors in the Appellate Division Decision

The Appellate Division opinion says that most decisions striking down early deadlines "have done so in the context of their impact on federal elections", but cited no authority. The statement is false. Among the 53 court decisions that have struck down or enjoined early petition deadlines, 31 of them involved state or local office (includeing minor party lawsuits that involved both federal and state office). See the list in the March 1, 2019 issue of Ballot Access News.

The Appellate Division opinion cited precedents that supposedly supported early deadlines, but most of the cited cases involved independent petition deadlines that were simultaneous with the primary. That is true for the Swanson, Lawrence, Wood, and Council of Alternative Parties cases. The decision also cited a 2001 decision of the Arizona Supreme Court upholding the June deadline, but the Appellate Division did not say that the same Arizona petition deadline was invalidated in 2008 by the Ninth Circuit, in a case filed by Ralph Nader. The only decision cited by the Appellate Division that upheld a petition deadline as much as a month before the primary is a decision of the Vermont Supreme Court, but even there, the legislature then moved the deadline from June to August so that it was simultaneous with the primary.

Mayor Brown will not appeal his state court case. It is unknown if his supporters will appeal the federal case. The Second Circuit on September 7 issued a stay of the U.S. District Court order that had put the Mayor on the ballot, but the Second Circuit did not write anything about the case.

The Federal Decision

The federal case filed by voters who want to vote for Mayor Brown is Meadors v Erie Co. Board of Elections, w.d., 1:21cv-982. In the Second Circuit, 21-2137. On September 16, the Second Circuit issued a one-sentence stay of the U.S. District Court order that had put the Mayor on the ballot. They did this a few minutes after the State Appellate Division decision. The three judges in the Second Circuit are Debra Livingston, a Bush Jr. appointee; Denny Chin, an Obama appointee; and William J. Nardini, a Trump appointee. By failing to write any text, the Second Circuit appears to be signaling that it has no clear opinion about the issues in the case, but that it desired that there not be any conflict between the state and federal courts on the very day on which ballots had to be printed. The voters who filed the federal case are free to keep their case alive. It is not known whether they will do so.

The state court decision is In the Matter of the Application of Byron W. Brown v Erie Co. Board of Elections, CAE 21-01234. It is probably written by Justice Stephen K. Lindley and is signed by Justices Nancy Smith, John V. Centra, and Joanne M. Winslow. However it is unsigned. Justice Lindley is a Democrat. In the lower state court, the earlier decision putting Brown on the ballot is written by Justice Paul B. Wojtaszek, a Republican, and is case Erie Co. Supreme Court, 811973-2021.

On September 7, AB 446 passed the California legislature. It lowers the petition to recognize a new party from 10% of the last gubernatorial vote, to 3%. It also eases the paperwork for a group that wants to qualify by the alternate registration route. The bill won’t have much impact because virtually no group ever uses the petition method, because the alternate registration method is so much easier.

On September 14, U.S. Senator Amy Klobuchar (D-Minnesota) introduced S2747, the "Freedom to Vote Bill." The co-sponsors are Senators Timothy Kaine of Virginia, Angus King of Maine, Joe Manchin of West Virginia, Jeff Markley of Oregon, Alex Padilla of California, Jon Tester of Montana, and Raphael Warnock of Georgia. All are Democrats, except that Angus King is an independent.

The bill restricts partisan gerrymandering, requires all states to automatically register every adult citizen whose existence is known by other state government records, requires that states permit early voting, permits ex-felons to vote, and makes election day a holiday.

It also makes many changes in campaign finance laws, including abolishing primary season matching funds for presidential candidates, one of the rare federal programs that helps minor parties.

The bill is supported by all 50 members of the Democratic caucus. But it is unlikely to pass unless the filibuster rules are changed.

If the bill’s separate parts were broken up into separate bills, it seems plausible that some would get enough Republican support to overcome a filibuster. For example, a stand-alone bill to restrict partisan gerrymandering might get the support of 60 Senators, given that the Democratic legislature of New York state will probably pass a U.S. House redistricting bill that result in four Republican members being defeated in 2022. But a bill on redistricting must pass very quickly if it is to effect the 2022 decade’s redistricting process.

S2747 does not try to revamp the membership of the Federal Election Commission. The earlier Democratic bill in Congress, HR 1, would have done that, and would have made it possible for one party to have a majority of members of the Commission.

On September 3, U.S. District Judge Leigh Martin May set interim rules for Georgia petitions for minor party and independent candidates for district and county office, pending legislative action. All those petitions will be 1% of the number of registered voters. Her action was needed because earlier this year she had struck down the 5% petition for those offices. A large filing fee is also required.

This gives Georgia one of the nation’s most severe petition laws in the nation for U.S. House. Nevertheless, on September 17, the Secretary of State filed a notice of appeal; apparently he wants to fight to restore the 5% petition, which is so severe, no one has used it for U.S. House since 1964.

Judge May had extended the 1% interim relief to candidates for the legislature and partisan county office, even though the original Complaint in the case only complained about U.S. House requirements.

Alaska: on September 3, The Alaska Supreme Court unanimously struck down a state law limiting payment to initiative circulators to $1 per signature. Resource Development Council for Alaska v State of Alaska, S-17834.

New York: on September 8, U.S. District Court Judge Glenn T. Suddaby, a Bush Jr. appointee, struck down a state law that lets qualified parties give more money to their nominees than unqualified parties are permitted to give. Upstate Jobs Party v Kosinski, n.d., 6:18cv-459. The Upstate Jobs Party is an unqualified party that is very active running nominees in parts of upstate New York. This case had been filed in 2018.

On September 1, the Fourth Circuit issued an opinion in Nelson v Warner, 20-1860. The issue was the West Virginia law that says the nominees of the party that won the last presidential election in that state appear on the top line of the general election ballot.

This is the fifth ballot order case that the Democratic Party has lost in the last year. The others were in Georgia, Florida, Texas, and Minnesota. The party’s Arizona lawsuit is still pending in the Ninth Circuit.

The Democratic Party has weakened itself in all of these cases, by arguing that relief should only be given to one of the two major parties, and that it is constitutional to place minor party and independent candidates in the lowest rungs of the ballot.

The fact that the Democratic Party has recently lost so many of these cases is surprising, because similar cases won in federal courts in the late 1960’s, 1970’s, and 1980’s.

On September 3, the Eighth Circuit upheld the Minnesota law that says independent candidate petitions must say, "I solemnly swear (or affirm)…that I do not intend to vote at the primary election for the office for which this nominating petition is made." Libertarian Party of Minnesota v Simon, 20-2244. The decision is five pages, is unsigned, and will not be published. It said nothing about the state interest in the law. It merely said that the Libertarian Party’s attorney, at oral argument, had conceded that the law is not vague. That is true, but he certainly didn’t concede that the law is constitutional. The evidence showed that it makes it more difficult to petition, and serves no state interest.

Beyond Two Parties: Why America Needs a Multiparty System and How We Can Have It, by Dan Eckam, paperback, 358 pages, 2019.

Dan Eckam is a software developer and writer with a deep interest in democratic theory. The book might have been called, "Everything you would ever need to know if you were trying to persuade someone that a multi-party system is better for the U.S."

There are other books that also advocate for a multi-party system, but Eckam’s book is characterized by his careful and fair exposition of all the arguments in favor of our two-party system. He sets out the arguments on the other side and then he attempts to rebut them, using plain language but with citation to scholarly evidence.

He writes, "When we consider John Adams’s recommendation that our representative assemblies should be ‘portraits’ of the people, and compare it to the system we have, it seems clear that we’re falling short. Our assemblies aren’t worthy of the label ‘representative’. And a major part of the reason for this our party system."

The book gives an extensive explanation of virtually every voting system that has been invented, including some that are obscure, such as the STAR system, the Borda count, range voting, approval voting, preference approval voting, and cumulative voting. He discusses Kenneth Arrow’s impossibility theorem, which shows that no voting system is perfect. He actually manages to explain why that is so.

The book does a good job of explaining the confusion around the definition of "two-party system". It says, "The phrase ‘two-party system’ can be used to mean either a system that tends to be dominated at any given time by two parties, or one that systematically locks out minor parties."

Eckam writes, "We’re the world’s longest continuously running major democracy. Yet we have one of the most dysfunctional of all advanced democracies, and our politics seem only to be getting more dysfunctional. It seems odd that we don’t give more consideration to the idea that our party system may be to blame. No other advanced democracy in the world has such a restrictive party system. If we took the time to compare the vibrancy of our system with that of other democracies, we might begin to realize just how deprived we are." It would be very good if the nation’s judges would read the book.

California: even though the voters retained Governor Gavin Newsom in the September 14 recall, opponents of the rules for recall are pressing ahead with a federal lawsuit that alleges the system violates the U.S. Constitution. They argue that the voters might recall someone narrowly, and then his or her replacement might be someone who got a smaller share of the vote than the recalled officer had received. Clark v Weber, 21-55930 in the Ninth Circuit.

Hawaii: on September 2, U.S. District Court Judge Jill Otake issued an order in Boria v Nago, 1:20cv-433. This is the lawsuit filed in 2020 by U.S. citizens who formerly lived in Hawaii, and now live in Guam or the U.S. Virgin Islands. They want to vote absentee in Hawaii elections. If they had moved to a foreign country, they could do that; but U.S. law does not allow them to do that because they live in U.S. territories. The judge cleared away the procedural objections to the lawsuit, which seems to suggest that she will ultimately rule in favor of the voters.

North Carolina: on September 17, a three-judge panel of a state Superior Court in Raleigh struck down the state’s photo voter ID law, by a vote of 2-1.

Holmes v Moore, 18 CVS 15292. The majority cited evidence that the law, which has a limited list of acceptable types of voter ID, has the effect of injuring African-Americans.

Ohio: on September 15, two amici briefs were filed in the U.S. Supreme Court in support of the Libertarian Party’s cert petition. Libertarian Party of Ohio v Crites, 20-3585. The issue is the law that says a minor party member can never be a member of the Elections Commission. The amici were filed by the CATO Institute, and a joint one filed by the Green, Constitution Parties, the national Libertarian Party, and COFOE (the Coalition for Free & Open Elections).

Ohio (2): on September 13, the Sixth Circuit refused to rehear Thompson v DeWine, 21-3514. The issue was whether ballot access relief should have been granted during 2020 for initiatives, due to covid. As previously reported,

Texas: on September 1, two Democratic Senators filed a federal lawsuit, arguing that the special session of the legislature cannot redistrict, due to a provision in the Texas Constitution. Eckhardt v Abbott, w.d., 1:21cv-769.

Virginia: on August 26, the Virginia Republican Party filed a lawsuit to remove Democratic gubernatorial Terry McAuliffe from the November 2021, on the grounds that he hadn’t signed a declaration of candidacy in the June 2021 Democratic primary. Although the state and McAuliffe filed responses the very next day, the court still hasn’t set a hearing date. Of course by now the ballots are being printed. Republican Party of Virginia v Piper, Circuit Court of the city of Richmond, CL 21-3848.

The chart below shows which party (other than the two major parties) had the most candidates on the ballot for lower house of the legislature, in the period 1945 to the present.

STATE	YEAR	PARTY	NUMBER	VOTE	PERCENTAGE
Alabama	1970	Nat. Dem of Alabama	42 of 106	78,761	21.68
Alaska	1992	Alaskan Independence	17 of 40	11,905	12.14
Arizona	1978	Libertarian	21 of 60	17,016	7.75
Arkansas	2016	Libertarian	9 of 100	17,615	11.21
California	1970	American Independent	57 of 80	88,287	1.94
Colorado	2000	Libertarian	57 of 65	119,006	8.35
Connecticut	2004	Working Families	50 of 151	13,830	3.46
Delaware	1970	American	12 of 39	909	1.84
Florida	2002	Libertarian	73 of 120	413,590	13.34
Georgia	2004	Libertarian	4 of 180	3,481	5.11
Hawaii	2014	Libertarian	8 of 51	6,518	11.76
Idaho	2002	Libertarian	19 of 70	13,781	9.26
Illinois	2008	Green	15 of 115	76,310	11.47
Indiana	1946	Prohibition	54 of 100	14,509	1.97
Iowa	1966	American Constitution	20 of 124	2,538	1.16
Kansas	2006	Libertarian	25 of 125	15,140	8.31
Kentucky	2020	Liberetarian	8 of 100	16,425	10.12
Louisiana	1972	American	5 of 105	2,998	5.81
Maine	2004	Green	18 of 151	15,831	18.43
Maryland	1970	American	14 of 142	7,783	4.81
Mass.	2000	Libertarian	14 of 160	29,368	12.78
Michigan	1948	Prohibition	49 of 100	8,516	.77
Minnesota	2000	Independence	27 of 134	41,051	9.62
Mississippi	2011	Libertarian	4 of 122	3,606	11.03
Missouri	2002	Libertarian	26 of 163	12,576	4.63
Montana	1982	Libertarian	20 of 100	3,920	5.93
Nevada	1980	Libertarian	20 of 40	7,797	6.60
New Hamp	1994	Libertarian	93 of 400	24,370	21.05
New Jersey	1997	Conservative	47 of 80	42,639	2.97
New Mexico	2020	Libertarian	12 of 70	10,707	5.90
New York	1948	American Labor	115 of 150	463,558	8.44
No. Carolina	2002	Libertarian	60 of 120	95,103	8.29
No. Dakota	1976	American	7 of 100	1,988	9.52
Ohio	2000	Libertarian	30 of 99	65,088	4.94
Oklahoma	2016	Libertarian	9 of 101	11,568	8.19
Oregon	2004	Libertarian	18 of 60	25,085	4.80
Pennsylvania	1968	Constitutional	70 of 203	36,141	2.40
Rhode Island	1996	Cool Moose	13 of 100	7,262	15.64
So. Carolina	1970	Independent Party	13 of 124	6,144	4.72
So. Dakota	2018	Libertarian	4 of 70	2,902	9.69
Tennessee	1972	American	8 of 99	8,799	8.85
Texas	2006	Libertarian	88 of 150	231,098	9.05
Utah	1986	Libertarian	35 of 75	6,924	3.58
Vermont	2016	Progressive	20 of 150	18,954	43.17
Virginia	1993	Libertarian	7 of 100	12,443	8.99
Washington	1948	Progressive	48 of 99	14,523	2.93
West Virginia	1998	Libertarian	10 of 100	11,522	11.72
Wisconsin	1972	American	35 of 99	15,131	2.48
Wyoming	1992	Libertarian	6 of 60	1,283	6.51

On September 9, news sources reported that Andrew Yang will start a new political party. He came to public attention in 2019, when he declared for the Democratic presidential nomination, and during 2020 when he participated in the Democratic debates. In June 2021 he was a candidate for Mayor of New York city in the Democratic primary, placing fourth.

Yang says people will need to read his book, Forward: Notes on the Future of our Democracy", to learn more. It comes out on October 5. The forward is by Mark Cuban of Texas. It is possible Yang is really joining the SAM Party, which already exists and is headed by former Florida Republican Congressman David Jolly.

On September 14, California held a gubernatorial recall election. The first half of the ballot asked voters if they wish to recall Gavin Newsom. The "no" vote exceeded the "yes" vote by approximately 20 percentage points, although there are still millions of ballots to be counted.

The second half of the ballot listed 46 replacement candidates. Only about half the voters voted on this part of the ballot. The tentative vote totals for the seven minor party candidates are: Dan Kapelovitz, Green, 53,086; Jeff Hewitt, Libertarian, 40,870; David Moore, Socialist Equality, 24,944; Michael Loebs, California National Party (which wants California to secede) 21,020; Heather Collins, Green, 19,753; Dennis Richter, Socialist Workers, 8,513; James G. Hanink, American Solidarity, 5,879.

The Federal Election Commission has published a 2021 version of Combined Federal/State Disclosure and Election Directory. This is a very useful book that has the contact information for the chief election officials of all states and also the U.S. territories. However, the book so far is only in electronic form. It can be found on the FEC’s website, fec.gov.

The New Mexico Green Party has started its petition to regain party status, and has 600 signatures. It needs 3,483 signatures by June 2022.

The Common Sense Party of California, which needs approximately 73,000 registrations in order to qualify, had 17,322 registrants as of August 30, an increase of 5,357 in the last 45 days.

The Alabama Libertarian Party has 25,000 signatures. It needs 51,588 by May 24, 2020.

The North Dakota Libertarian Party has 1,000 signatures. It needes 7,000 by April 11, 2020.

On September 6, Adlai Stevenson III died at the age of 90. He was the son of Adlai Stevenson II, the Democratic nominee for president in 1952 and 1956. His grandfather, Adlai Stevenson, was vice-president in the second term of Grover Cleveland.

Stevenson III won the Illinois Democratic primary for Governor in 1986, but he resigned from the ticket because the Lieutenant Governor primary was won by Mark Fairchild, a Lyndon LaRouche supporter, and in November, Illinois requires the two to run as a team.

Stevenson then formed the Illinois Solidarity Party and ran as its gubernatorial candidate, polling 40.0%. That established his party as the first ballot-qualified third party in Illinois since 1924. He had no interest in his party after the election was over, and the Democratic majority in the legislature passed a bill in 1987 allowing a party to voluntarily cease to exist. But Republican Governor Jim Thompson vetoed that bill, so the Solidarity Party continued to exist in 1988 and 1990. It was captured by activists from the New Alliance Party, and it ran Lenora Fulani for president in 1988.

In the 1986 election, the Democratic ticket of no one for Governor and Fairchild for Lieutenant Governor polled 6%. If it had polled under 5%, the Democratic Party would have ceased to be ballot-qualified for some offices.