FORDHAM LAW PUBLISHES DATA ON RELATIONSHIP BETWEEN BALLOT ACCESS AND CROWDED BALLOTS

The Fordham Law Review, November 2021 issue, has my article, "How States can Avoid Overcrowded Ballots but Still Protect Voter Choice." It shows that, in all history, if a state required more than 5,000 signatures for all methods to put a minor party or an independent candidate on the ballot, it never had a crowded ballot.

"Crowded ballot" is defined as a ballot with more than eight candidates for a single-winner office. The author of this observation was U.S. Supreme Court Justice John Harlan, who said in his concurrence in Williams v Rhodes (1968) that a ballot listing eight candidates for a single office "cannot be said, in light of experience, to carry a significant danger of voter confusion."

The Fordham article contains data on every presidential election in each state from the beginning of government-printed ballots (in 1892) to the present day. It records every instance when a state required more than 5,000 signatures for all routes to the general election ballot, and compares each instance with the number of presidential candidates on the ballot that year.

There are no instances when a state that required more than 5,000 signatures for all methods to get on the ballot ever had more than eight candidates for president on the ballot, except that in 1980 and 1996, New York had nine.

The article also shows that the general observation applies not only to presidential elections, but to elections for all partisan office. Presidential ballots are easily the most crowded ballots; the next most crowded ballots are for Governor and U.S. Senator.

Ballots for U.S. House and state legislature invariably have far fewer candidates. So if it’s true for president, it is true in general.

Although the article’s point is quite simple, it is the first published work to bring together the number of signatures in each state, since the beginning of government-printed ballots, and the number of candidates. The most difficult part was learning the number of signatures required in each state, in each past election, but my library of election returns, voter registration statistics, and the provisions of past and present ballot access laws made the work possible. I have been collecting this information since 1965, when I was in college.

It is hoped that attorneys in constitutional ballot access cases will make use of the article, so that judges can no longer write that states need requirements of hundreds of thousands of signatures in order to prevent crowded ballots. Justices and judges who have asserted such things include Judge M. Margaret McKeown of the Ninth Circuit, who wrote in 2019 that California needs to require almost 200,000 signatures for independent presidential candidates in order to avoid crowded ballots.

U.S. Supreme Court Justices who asserted similar things include Justice Potter Stewart in Jenness v Fortson in 1971 (although he later changed his mind) and Justice Byron White in Storer v Brown. Justice Antonin Scalia, to his credit, said "the ballot crowding argument is phony" in conference in 1985 when the Court was deciding how it would rule in Munro v Socialist Workers Party. Unfortunately he never published that sentiment.

We only know he said it because Justice Harry Blackmun took notes about what was said in U.S. Supreme Court conferences, and then released his notes after his death, where anyone can see them at the Library of Congress.

On October 7, California Governor Gavin Newsom vetoed AB 446, which would have lowered the number of signatures for a new party from 10% of the last gubernatorial vote, to 3%. That would have lowered the 2022 requirement from 1,246,424 signatures to 373,928 signatures.

It is important to note that there is an alternate method to qualify a new party, that the group persuade .33% of the registered voters to join the party. The bill did not fundamentally change that easier method. If the 10% petition were the only way to qualify a new party, it would have been held unconstitutional long ago.

The veto message says that if the bill became law, that would result in an "ever-changing number of political parties and that that would create "confusion among voters due to the constant churn of parties coming into, and falling off of, the ballot." That statement is untrue for two reasons: (1) a petition requirement of 373,928 would still be prohibitive and no group would be able to use it; (2) having new parties come and go is common in two-thirds of states, and there is no evidence that causes any confusion.

Surprisingly, no news source reported the veto (except Ballot Access News).

Forward: Notes on the Future of our Democracy, by Andrew Yang, 347 pages, 2021.

Andrew Yang, well-known candidate for the Democratic presidential nomination in 2020, and also a Democratic candidate for Mayor of New York city in 2021, got attention on September 9 when he said he intends to start a new political party. On September 23 it was revealed that the party would be named the Forward Party. On October 4 he announced that he had registered out of the Democratic Party and had become an independent. And on October 5, his book, billed as an explanation for these moves, was published.

The book has many virtues. Yang uses Part One to tell the story of how he decided to run for the Democratic presidential nomination, and what happened along the way. He is a very good writer and this part of the book is entertaining and revealinig.

Part Two describes major social and economic problems in the United States, and contains one of the best descriptions I have ever read about why elected officials so often seem to accomplish nothing useful. He writes, as a politician, "your job is to make people feel better. You make false promises regularly or lay claim to powers you do not have…You are all about the singing of brighter horizons…We accept ridiculous statements on their face because we have grown to regard them less as real actions or policy statements and more as simply value statements and political representations of the world as we wish it to be.

"Politicians are increasingly reduced to well-liked or poll-tested stewards who tend to our emotions rather than figures who can actually improve the situation.

"The mistrust that is building up in American life is born in large part by the pervasiveness of constructive institutionalism. We have conversations about what we can do better while the reality degrades around us, increasing the divergence between the world we’re talking about and the world as it is."

Chapter 24 is personal. Yang describes his childhood, in which he was the only pupil of Asian descent in the school; furthermore he had skipped a grade so he was physically small. One has to smile at any author who remembers the juvenile insults aimed at him while he was a child, and repeats them in an autobiography.

The book contains a great deal of information about his signature issue, universal basic income, which propelled his presidential candidacy. He has thought a great deal about this idea and presents the arguments for it persuasively.

But then Forward falters. He asserts that the solution to the nation’s unhappy political life is to pass ballot initiatives that combine top-four or top-five systems with ranked choice voting. He asserts dogmatically and repeatedly that voters who vote in partisan primaries are the extremists in the U.S., and non-primary voters are sensible moderates. Political science research overwhelmingly rebuts this idea. Here is a list of political science papers, and book chapters, that say he is wrong:

Has the Top-Two Primary Elected More Moderates? Eric McGhee & Boris Shor, in Perspectives on Politics, Dec. 2017, Vol. 15(4).

Why Closed Primaries Do Not Contribute to Polarization. Barbara Norrander & Jay Wendland, presented to the American Political Science Association meeting, September 2015.

Do Moderate Voters Weigh Candidates’ Ideologies? Boris Shor, Political Behavior 39(1).

Partisan Polarization in the U.S.: Diagnoses and Avenues for Reform. Nolan McCarty & Boris Shor, SSRN 2714013. They recommend stronger political parties.

Solutions to Political Polarization in America (book with chapters by 22 authors, published 2015). Only one of the authors writes that top-two primaries reduce polarization. Another author recommends an end to government-administered primaries. Lead author Nathaniel Persily.

California Still the Most Polarized Legislature, in the blog "Measuring American Legislatures", Nov. 8, 2016, by Boris Shor & Nolan McCarty.

American Gridlock: the Sources, Character, and Impact of Political Polarization (2015 book, lead authors Antoine Yoshinaka & James A. Thurber)

Chuck Schumer is Wrong About the Top-Two Primary, at blog 538.com, July 22, 2014, by Harry Enten.

The Limits of Electoral Reform, book by Todd Donovan and Shaun Bowler.

Democracy in the States: Experiments in Electoral Reform (2008 book by Bruce Cain, Todd Donovan, and C. Tolbert.

The Top-Two Primary: What Can California Learn from Washington? California Journal of Public Policy 4(1) by Todd Donovan.

Yang cites no authority for his belief that voters in partisan primaries are extremists, except he says that Katherine Gehl believes this. But Gehl, who is a wealthy businesswoman in Wisconsin who is promoting top-five primaries, is not a political scientist, nor does she have practical experience in elections.

Yang doesn’t mention the point that there are approximately 150 reasonably democratic countries in the world, and none of them other than the U.S. uses a "top-anything" system.

In the world outside the U.S., it is unheard of to print ballots with party labels, and yet deprive parties of the ability to nominate candidates.

Yang doesn’t explain the purpose of the primary. Because he is advocating ranked choice voting, and an end to party nominees, there seems to be no reason whatsoever to even have a primary. And Louisiana has abolished primaries (except for presidential primaries). Louisiana merely holds general elections. In one-fifth of its elections, no one gets 50% and then there is a run-off. The book does not mention the Louisiana system.

Yang also doesn’t explain why he doesn’t support other election reforms. His book does not mention proportional representation, even though the vast majority of the best-governed nations in the world (as measured by objective criteria) use proportional representation. There is a bill pending in the U.S. House for proportional representation, HR 3863, by Congressman Donald Beyer (D-Virginia). Although it only has six co-sponsors, at least it exists; by contrast there is no bill in Congress for a top-five primary.

Yang doesn’t mention the National Popular Vote Plan movement, which is making headway. An initiative is circulating in Michigan to have that state join the Plan.

A top-five system would probably result in a Democratic-Republican monopoly on the ballot for U.S. Senate and gubernatorial races. The top-two system in California and Washington provides data to support this prediction. During the 13 years top-two has been in effect in Washington, and the 10 years it has been in effect in California, there is not a single minor party candidate for Governor or Senator who ever polled in the top five in the primary.

The best any third party candidate for those two offices has done in either state is sixth.

See the May 1, 2021 print issue of Ballot Access News for a list of all the minor party candidates for those two offices during the top-two period.

The reason minor party candidates for those two offices do so poorly in top-two primaries is that all the public attention is focused on which major party figures will qualify. The press doesn’t cover minor party candidates in top-two primaries.

Plans for the Forward Party

The book contains almost no practical information for people who want to support Yang’s proposed Forward Party. It doesn’t mention ballot access problems, nor problems for minor parties being included in candidate debates. Yang outlines the six main planks for the Forward Party: (1) ranked choice voting and open primaries; (2) fact-based governance; (3) human-centered capitalism; (4) effective and modern government; (5) universal basic income; (6) grace and tolerance. But he says nothing about what the party’s strategy would be, except that it would use the initiative process in states that have it to pass ranked choice voting combined with top-five primaries.

Shortly after the book was published, it was announced that a group of very wealthy individuals are banding together to raise $100,000,000 to promote state initiatives to implement top-five primaries and ranked choice voting. Probably Yang’s real purpose in writing his book is to help that movement.

On November 1, the U.S. Supreme Court may say whether it will hear Libertarian Party of Ohio v Crites, 21-226. The issue is the law that forbids a member of any party other than the two major parties from serving on the Elections Commission. The Court’s conference is October 29.

A lawsuit is pending in Alaska state court over the top-four initiative passed in November 2020. In the trial court, the system was upheld, against a charge that it violates the associational rights of political parties. The plaintiffs, including the Alaskan Independence Party, have asked the State Supreme Court to review the decision.

On October 4, the trial court ruled that the plaintiffs do not need to pay the attorneys’ fees for the supporters of the top-four system. The top-four proponents had tried to persuade the court that the plaintiffs should pay approximately $50,000 for having filed their lawsuit.

California top-two proponents had done the same thing in 2012, and unfortunately in the California case, the opponents of the top-two system were forced to pay $100,000 in attorneys’ fees to the supporters of top-two.

On October 7, California Governor Gavin Newsom vetoed SB 660, which made it illegal for initiative proponents to pay circulators on a per-signature basis. He had vetoed the same bill previously, and so had both prior Governors, Jerry Brown and Arnold Schwarzenegger. They all pointed out the bill would greatly increase the expense of qualifying an initiative.

In early October, sponsors for a top-five initiative in Utah announced that they are suspending their petition drive, although they may try again in 2023.

Candidate	Party	Vote	Handbook?	Expenditures
Larry A. Elder	Republican	3,563,867	yes	$8,395,684
Kevin Paffrath	Democratic	706,778	no	$440,287
Kevin L. Faulconer	Republican	590,346	yes	$2,191,995
Brandon M. Ross	Democratic	392,029	yes	?
John Cox	Republican	305,095	no	$8,464,205
Kevin Kiley	Republican	255,490	yes	$896,956
Jacqueline McGowan	Democratic	214,242	yes	$46,706
Joel Ventresca	Democratic	186,345	yes	?
Daniel Watts	Democratic	167,355	yes	?
Holly L. Baade	Democratic	92,218	yes	?
Patrick Kilpatrick	Democratic	86,617	yes	?
Armando Perez-Serrato	Democratic	85,061	no	?
Caitlyn Jenner	Republican	75,215	yes	?
John R. Drake	Democratic	68,545	yes	?
Dan Kapelovitz	Green	64,375	yes	?
Jeff Hewitt	Libertarian	50,378	yes	$137,825
Ted Gaines	Republican	47,937	yes	$92,626
Angelyne	independent	35,900	yes	?
David Moore	Socialist Equality	31,224	no	?
Anthony Trimino	Republican	28,101	yes	$75,488
Doug Ose	Republican	26,204	yes	$498,141
Michael Loebs	California National	25,468	yes	?
Heather Collins	Green	24,260	yes	?
Major Singh	independent	21,394	no	?
David Lozano	Republican	19,945	yes	?
Denver Stoner	Republican	19,588	yes	?
Sam L. Gallucci	Republican	18,134	yes	$87,044
Steve Chavez Lodge	Republican	17,435	no	?
Jenny Rae Le Roux	Republican	16,032	yes	$497,625
David Alexander Bramante	Republican	11,501	yes	?
Diego Martinez	Republican	10,860	no	?
Robert C. Newman	Republican	10,602	yes	?
Sarah Stephens	Republican	10,583	no	$20,611
Dennis Richter	Socialist Workers	10,468	yes	?
Denis Lucey	independent	8,182	yes	?
James G. Hanink	American Solidarity	7,193	yes	$158
Daniel Mercuri	Republican	7,110	yes	?
Chauncey "Slim" Killens	Republican	6,879	yes	?
Leo S. Zacky	Republican	6,099	no	$14,221
Kevin K. Kaul	independent	5,600	no	?
David Hillberg	Republican	4,435	yes	?
Adam Papagan	independent	4,021	yes	?
Rhonda Furin	Republican	3,964	no	?
Wildstar	Republican	3,811	yes	?
Jeremiah "Jeremy" Marciniak	independent	2,894	yes	?
Joe M. Symmon	Republican	2,397	no	?

Here are the candidates who were on the ballot in the California gubernatorial election of September 14. The column labeled "Handbook?" shows whether the candidate put a paid statement in the booklet that the state mailed to all registered voters. The far-right column shows how much the candidate spent, according to state campaign finance records. Some of the candidates have not yet filed a statement of their spending, so for them the column has a question mark. A write-in candidate, Major Williams, received 8,965 votes.

~	Demo.	Rep.	Lib’t.	Constitn	Green	Wk Fam	Indp. Party	other
Alabama	9,917	15,915	– –	– –	– –	– –	– –	– –
Arizona	31,294	23,041	739	– –	– –	– –	– –	– –
Kentucky	70,762	87,640	– –	– –	– –	– –	– –	– –
Minn.	88,358	36,597	1,824	– –	2,313	– –	4,259	4,208
N. Mex.	7,844	2,488	460	128	314	– –	– –	144
Oregon	14,589	3,699	588	159	735	927	1,131	621
Rhode I.	14,676	3,859	– –	– –	– –	– –	– –	631
Utah	44,302	42,958	5,424	2,110	2,128	– –	– –	5,696
Virginia	32,623	12,070	– –	– –	– –	– –	– –	– –
TOTAL	~	~	9,035	2,397	5,490	927	5,390	11,300

Nine states let state income taxpayers send a small donation to the political party of their choice. The chart on page five shows the amounts each party has received from income tax returns filed this year. The amounts in the “other” column are: Minn., Grassroots $1,431 & Legalize Marijuana Now $2,777; N.M., Better for America $146; Ore., Prog; Rhode Island, Moderate; Utah, United Utah $2,558 & Independent American $3,138.

YEAR	Democrat	Republican	Green	Lib’t.	Reform/AE	Constitution	Other
2000	941,463	822,671	31,864	13,024	5,054	19,209	71,824
2001	680,608	611,065	12,184	8,173	755	2,295	46,232
2002	928,716	892,438	84,120	7,289	749	2,886	97,559
2003	1,181,312	1,126,585	20,665	7,859	46	51	9,975
2004	828,136	786,190	16,309	8,446	324	1,409	8,822
2005	750,461	714,238	18,100	5,546	34	2,442	25,887
2006	915,945	806,193	50,434	7,282	– –	5,847	45,355
2007	1,050,593	850,580	15,716	5,839	– –	3,503	15,627
2008	1,520,746	1,127,478	8,324	5,034	– –	5,938	5,219
2009	978,325	718,165	7,642	45,889	– –	4,520	4,970
2010	830,562	616,027	5,257	11,115	– –	3,617	5,630
2011	850,490	603,022	6,560	53,133	– –	4,367	11,766
2012	1,883,507	1,245,403	7,862	101,253	– –	2,458	8,733
2013	740,897	545,527	4,041	22,438	11,516	2,816	21,430
2014	369,153	324,042	1,836	7,418	817	3,041	3,175
2015	280,223	246,396	1,777	7,263	174	2,455	12,078
2016	275,908	231,102	3,517	6,636	561	2,428	6,229
2017	261,402	235,678	2,502	7,426	– –	2,333	8,781
2018	251.366	201,949	4,783	8,316	– –	2,255	13,152
2019	239,727	215,182	3,330	7,467	– –	2,283	8,791
2020	261,568	215,678	5,235	7,496	– –	2,307	12,564
2021	314,365	228,267	5,490	9,035	– –	2,397	17,617

The Florida Secretary of State has accepted the filing of the People’s Party. As a qualified party, it may have a primary for any partisan office if there is a contest for the party’s nomination, but if there is only a single party member running for any particular office, the primary is not held. Florida is the first state in which the People’s Party is on the ballot.

Florida has eleven qualified parties, the most of any state. A party becomes qualified by submitting a list of party officers and a set of bylaws, and by promising to make periodic financial reports. There are large fines for parties that don’t make those reports.

On September 30, the Federal Election Commission ruled that Jill Stein, Green Party presidential nominee in 2016, must repay $175,272 in primary season matching funds. She had received a total of $590,936 in 2016.

The FEC said that she was not entitled to a match of funds that she had received from private donors after the date of the 2016 Green Party national convention. She argued that the cutoff date should have been the date of the Peace & Freedom Party convention, because she had been seeking its nomination also, and it had a later convention. But the Peace & Freedom Party is not a national party, and the law (which is very complex) says that therefore the date of the PFP convention doesn’t matter, given that the two major party conventions had been earlier than the PFP convention. By contrast, in 2008-2012, the two major party conventions had been much later.

Florida will hold a special U.S. House election, 20^th district, on January 11, 2022. A Republican, a Democrat, a Libertarian, and two independent candidates will be on the ballot. The major parties will choose their nominees in December 2021 in primaries.

The Alabama Libertarian Party now has approximately 30,000 signatures on its party petition. The Kansas Green Party petition failed, because Kansas limits the petitioning period to six months, and the party had chosen the period April 20-October 20, and did not get enough signatures during that period. The Green Party has started its New Mexico petition.

On October 5, Evan McMullin said he will run as an independent candidate for U.S. Senate in Utah in 2022. The Republican incumbent is Mike Lee. McMullin was an independent presidential candidate in 2016, and in Utah he received 21.5% of the vote.

Oklahoma: on October 19, Dr. Ervin Yen, a former State Senator, revealed that he has changed his registration from Republican to independent, and that he will be an independent candidate for Governor in 2022.

Oregon: on October 16, State Senator Betsy Johnson revealed that she had changed her registration from Democratic to independent and that she will be an independent candidate for Governor in 2022.