SECOND CIRCUIT UPHOLDS NEW YORK BALLOT ACCESS

JUDGES IGNORE STORER AND APPLY LITMUS TEST

On October 19, the Second Circuit upheld the New York ballot access laws passed in 2020. Libertarian Party of New York v New York State Board of Elections, 22-44. Those laws increased the statewide independent petition from 15,000 to 45,000 signatures, and stiffened the definition of a qualified party from a group that polls 50,000 votes for Governor, to one that polls 2% for the office at the top of the ticket, every two years. In 2020, 2% was 172,337 votes.

The new law retained the six-week petitioning period, increased the distribution requirement, and retained the ban on anyone signing two petitions for the same office.

The new law retained the lack of any procedure by which a group can transform itself into a qualified party in advance of any election, something that exists in 39 states.

The three judges are Jon O. Newman, a Carter appointee; John M. Walker, a Bush Jr. appointee; and Eunice C. Lee, a Biden appointee.

The decision is only two sentences. It says that the U.S. District Court was correct when it upheld the laws last year. Because the Second Circuit didn’t speak for itself in writing, it is fair to presume that comments made by the judges at the oral argument do represent the thinking of the Second Circuit.

Judges Apply a Litmus Test

During the part of the oral argument at which the attorney for the Libertarian and Green Parties was speaking, one judge repeatedly demanded that the attorney express an objective numerical test which should be considered unconstitutionally difficult.

Over and over, the attorney for the parties tried to explain that this is the wrong way to adjudicate ballot access barriers. He was correct. The U.S. Supreme Court said in Storer v Brown in 1974, and also in Mandel v Bradley in 1977, that courts should not apply a "litmus test", i.e., they should not say that one number of signatures, or percentage of signatures, is necessarily valid or invalid.

Instead, courts should examine how many times the challenged law has been successfully used.

The attorney for the parties repeatedly pointed out that no statewide gubernatorial petitions succeeded in New York this year. He did not say, but he could have, that in 2020, the first year the petition requirement was in effect, no one succeeded either.

The judges also addressed the issue of whether the U.S. District Court should have held a trial. The U.S. District Court did not hold a trial, and ruled for the state one day after the oral argument. The U.S. District Court said that the law is constitutional because New York "is in the middle of the pack" when the laws of all states are compared. This was factually wrong and was factually disputed. The U.S. District Court should have held a trial to resolve the factual disputes.

Factual Errors & Omissions

The evidence that the U.S. District Court Judge depended on had numerous factual errors, which were pointed out to him, but he seemed not to notice.

The state’s evidence, which the judge relied on, said that the North Carolina petition was 82,542 signatures. Actually it was 13,757 for a new party.

The state’s evidence said that Pennsylvania required 57,913 signatures. Actually it required 5,000. The state’s evidence said that California required 220,474 signatures in 2022. Actually no candidate for any office in California in 2022 required more than 65 signatures.

The state’s evidence made many errors when it discussed the amount of time allowed for petitioning in many states. For example, Oregon lets both new party and independent candidate petitions start as early as the group wishes, but sets a certain narrow window for the petition to be submitted. The state confused the opening window for submitting the petition, with a prohibition on starting on that date.

The judges did not seem to know that in most states, petitions to create new parties may start as early as the group wishes. Unlimited time to complete a petition greatly eases the chances that the petition will succeed.

The U.S. District Court said that the New York vote test, 2%, is "in the middle of the pack", but the judge paid no attention to the evidence in front of him that vote tests cannot be compared without looking at which office the vote test applies to. It is far, far easier for a minor party to poll 2% of the vote for a less important state office, such as Agriculture Commissioner, than president, because voters care overwhelmingly who wins the presidency, but tend not to care very much about lesser state executive offices.

This is especially true given that in some states, often there is only one major party candidate for such offices. Thus even a 20% vote test can, in practice, be easier than a 2% vote test for President.

This is why the most realistic way to compare state definitions of political party is to examine the number of minor parties that attain qualified status. The attorney for the minor parties made this as clear as he could, when he told the Second Circuit panel that the Libertarian Party had attained qualified status in 42 states before it ever qualified in New York, and that was under the old, easier definition of "party." It should be obvious that if the old, easier definition had been met in 42 other states before the Libertarian Party met it in New York, then even the old, easier law was tougher than the laws of most states.

But the judges seem to pay no attention to that fact.

The attorney for the state reinforced the erroneous idea that ballot access laws should be evaluated with a litmus test. He cited all the cases in which courts in other states had upheld vote tests that were higher than 2%. But, he did not say, nor did the judges seem to grasp, that in all the other precedents, the state in question had a procedure by which a group could transform itself into a qualified party in advance of any election. So even though courts had upheld Oklahoma’s prior 10% vote test, and Arkansas’ 3% vote test, and North Carolina’s prior 10% vote test, those three states all had a procedure whereby a group could be come a qualified party without meeting the vote test.

The attorney for the state did not tell the judges, nor did they seem to know, that in all of the U.S. Supreme Court precedents upholding difficult petition requirements, the Court depended on the fact that such petition requirements had recently been used successfully.

For example, when the Supreme Court upheld the Georgia 5% petition, it noted that a statewide 5% petition had succeeded in both election years before the lawsuit had been filed.

When the U.S. Supreme Court upheld the Texas 1% petition in 1974, it noted that two of the plaintiffs, the Socialist Workers Party and La Raza Unida, had succeeded in getting on the ballot in 1972.

The attorney for the state also said that the U.S. Supreme Court had upheld a 20% vote test in Jenness v Fortson, the Georgia case from 1971. But the Socialist Workers Party in that case did not challenge the 20% vote test. The U.S. Supreme Court mentioned the 20% vote test and seemed to find it acceptable, but that was just dicta.

The attorney for the state said that New York was justified in increasing the vote test from 50,000 to 172,337 because the state has four times the population that it did in 1935, when the 50,000-figure was passed. But he did not say, nor did the judges seem to know, that the number of votes cast in 1936 for President was 5,596,399, and in 2020 it was 8,594,826, an increase of 53.6%. The number of votes, not the population, seems more relevant to this type of analysis.

Worst of all, the judges seem to pay no attention to the fact that the U.S. District Court had upheld the new laws as justified so the state wouldn’t need to give public funding to minor party candidates. Yet the Second Circuit had already ruled in a Connecticut case that if the state gives public funding to parties that polled 20% of the vote, it doesn’t need to give public funding to smaller parties.

As a result of this decision, New York is one of only five states that holds a gubernatorial election this year and that has only two gubernatorial candidates on the ballot. The others are Arizona, California, Ohio, and Wisconsin.

On September 30, U.S. District Court Judge Kristine G. Baker, an Obama appointee, struck down the Arkansas procedures for minor parties to get on the ballot. Libertarian Party of Arkansas v Thurston, e.d., 4:19cv-214. She said that given the combination of the number of signatures (3% of the last gubernatorial vote), the early petition deadline, and the short three-month petitioning period, the law is too severe.

Arkansas had a 3% petition requirement between 1977 and 2006, and in all those years, no party succeeded in completing the petition. It was lowered to 10,000 signatures in 2007, but in 2019 the state restored the 3% petition.

The decision is not surprising, because Judge Baker had enjoined it in 2019, a few months after it had passed. Unlike the U.S. District Court Judge in New York (see preceding story), Judge Baker held a trial. Her opinion is 83 pages. It summarizes the evidence presented at the trial by both sides. She notes that the expert witness for the state had admitted that having three candidates on a ballot does not constitute a "crowded ballot."

On September 23, James R. Adams won an important procedural victory in his lawsuit against the Delaware law that says only members of the two largest parties may serve in most judicial posts. Adams v Carney, 1:20cv-1680. The ruling says Adams does have standing. He is a registered independent and an attorney, and he has applied for five judicial appointments this year. In his earlier case, he had won, but then the U.S. Supreme Court said he didn’t have standing because in his first case he hadn’t actually applied.

On September 29, U.S. District Court Judge Robert Pitman, an Obama appointee, issued an opinion in Miller v Hughs, w.d., 1:19cv-700. This is a ballot access lawsuit filed in 2019 by the Libertarian, Green, Constitution, and America’s Party of Texas, and some independent candidates. The decision upholds all ballot access restrictions that apply to minor party and independent candidates, except that it strikes down the lack of any method to obtain electronic signatures on petitions.

It is likely that both sides will appeal. The part of the decision striking down the absence of electronic signature-gathering says that the ban violates equal protection, because the major parties are permitted to electronically inform election officials of who files for their primaries. That part of the decision does not cite any precedents.

The decision is only 28 pages, and ignores vast amounts of evidence. The opinion says the petition requirements are needed to prevent ballot overcrowding. Yet the evidence includes data that any state that requires more than 5,000 signatures for all routes to the ballot will never have a crowded ballot, if "crowded ballot" means more than eight candidates for a single office. Justice John Harlan wrote in Williams v Rhodes that eight candidates is not confusing, and no other opinion has ever disagreed with that opinion. The Supreme Court opinion Lubin v Panish says a crowded ballot is one with more than a dozen candidates for a single office.

Texas requires 113,151 signatures for an independent presidential candidate in 2024, and 83,434 signatures for a new party. The decision does not address the point that the disparity deprives independent presidential candidates of equal protection.

There are precedents from Alabama, Florida, Maryland, and North Carolina, that states cannot require more signatures for a single independent candidate than for an entire new party, but the decision does not mention any of them.

The decision upholds the new law that requires persons seeking nomination from a convention party to pay filing fees; that money goes into the state treasury. But filing fees paid by candidates running in a major party primary are paid to those political parties. This is an obvious equal protection problem, noted by this very same judge in an earlier case, Bilyeu v Esparza. In that case Judge Pitman declined to enjoin the convention-party filing fees, but he mentioned the equal protection problem and suggested that therefore the law would be held unconstitutional. He seems to have forgotten what he had written on March 1, 2022.

Judge Pitman seems influenced by the fact that the plaintiffs Libertarian and Green Parties are already on the ballot in Texas. As to the two unqualified parties in the case, the judge noted that the evidence shows they are very weak and have not tried to petition in this century. The Constitution Party did petition successfully in Texas in 1996, but that fact is not in the opinion.

The U.S. Supreme Court returned on October 3, and already it has refused to hear three cases that could have expanded voting rights. On October 3 it refused to hear the Georgia Libertarian ballot access case concerning petition requirements for U.S. House, which are so severe, no party has ever used them in the 79 years they have existed. However, that case is not entirely over; part of it is still in U.S. District Court.

On October 3 it also refused to hear Kowall v Benson, 21-1360, a challenge to the strict term limits for state legislators in Michigan.

On October 17, it refused to hear Fitisemanu v U.S., 21-1394, over whether the Fourteenth Amendment requires that the U.S. government grant automatic citizenship to residents of American Samoa. The plaintiff was a Utah voter who was born in American Samoa. Without automatic citizenship, even though he has a U.S. passport and is considered a U.S. "national", he can’t vote in Utah without going through the same naturalization process that people born in foreign countries must go through.

In another move that is hostile to voting rights, on October 11 the Court issued an order in Ritter v Migliori, 22-30. It said the Third Circuit’s opinion in that case is moot, and is vacated, which is another word for saying it is "erased." The Third Circuit had ruled that the "materiality" federal civil rights law means that postal ballots cast in a 2021 Pennsylvania local election are valid, even if the voter forgot to add the date of mailing. The Third Circuit had reasoned that all postal ballots are date-stamped by the elections office when received, so it doesn’t matter if the voter fails to add the date to the outer envelope. An old federal law says that voters cannot be disenfranchised for making a mistake that is not "material".

On October 14, a Wyoming legislative committee defeated 23LSO-0192, which would have converted Wyoming from a state with party nominees, to a state in which parties no longer have nominees (except for President). If the proposal had passed, the Joint Corporations, Elections & Political Subdivisions would have sponsored the measure next year.

~	Demo.	Rep.	Lib’t.	Constitn	Green	Wk Fam	Indp. Party	other
Alabama	10,281	10,488	– –	– –	– –	– –	– –	– –
Arizona	17,856	10,913	1,147	– –	– –	– –	– –	– –
Kentucky	82,910	54,868	– –	– –	– –	– –	– –	– –
Minn.	34,185	11,423	670	– –	– –	– –	1,592	1,595
N. Mex.	7,468	3,062	402	112	338	– –	– –	240
Oregon	16,191	4,230	588	183	861	1,146	1,473	711
Rhode I.	8,898	1,974	– –	– –	– –	– –	– –	– –
Utah	41,354	45,342	5,244	2,274	34	– –	– –	8,210
Virginia	56,720	19,979	– –	– –	– –	– –	– –	– –

YEAR	Dem.	Rep.		Green		Lib’t.	Ref./AE		Consti.		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
2022	275,863	162,279		1,233		8,051	– –		2,569		10,756

State	# seats	Dem.	Rep.	Lib’t.	Green	Consti	WkFam	other(1)	other(2)	indp.
Ala	140	61	111	38	0	0	0	0	0	6
Alas	59	35	50	3	0	1	0	3	1	19
Ariz	90	61	65	0	0	0	0	0	0	1
Ark	135	64	118	42	0	0	0	0	0	5
Cal	100	94	80	1	0	0	0	0	0	2
Colo	82	79	80	24	0	0	0	1	1	1
Ct	187	174	158	0	4	0	1	10	0	3
Del	62	46	42	6	0	0	0	0	0	0
Fla	160	111	139	0	2	1	0	0	0	4
Ga	236	168	182	0	0	0	0	0	0	0
Hi	76	74	63	2	4	0	0	4	0	2
Id	105	46	105	4	0	10	0	0	0	5
Ill	177	128	124	0	0	0	0	0	0	0
Ind	125	85	111	4	0	0	0	0	0	4
Iowa	134	94	102	14	0	0	0	0	0	6
Kan	125	79	106	6	0	0	0	0	0	0
Ky	119	68	107	0	0	0	0	0	0	0
Maine	186	170	172	0	1	0	0	0	0	16
Md	188	160	123	4	5	0	0	0	0	0
Mass	200	179	74	0	2	0	0	2	0	14
Mich	148	148	146	15	4	3	0	3	0	0
Minn.	201	193	183	2	0	0	0	7	2	2
Mo	180	107	151	11	0	1	0	0	0	1
Mont	125	90	122	9	2	0	0	0	0	1
Nev	53	44	53	12	0	0	0	0	0	0
NH	424	407	382	1	0	0	0	0	0	8
NM	70	53	51	1	0	0	0	0	0	5
NY	213	191	161	0	0	0	9	5	4	2
NoC	170	129	160	22	1	0	0	0	0	0
NoD	98	42	93	0	0	0	0	0	0	3
Ohio	116	88	103	0	0	0	0	0	0	3
Okla	125	50	111	1	0	0	0	0	0	3
Ore	75	69	71	5	0	1	0	1	0	0
Pa	228	172	181	14	2	0	0	2	0	3
R I	113	109	72	0	0	0	0	0	0	22
So C	124	68	106	3	1	0	0	3	1	0
So D	105	48	105	2	0	0	0	0	0	4
Tenn	116	64	96	1	1	0	0	0	0	13
Tex	181	131	150	29	0	0	0	0	0	2
Utah	90	49	87	7	0	2	0	17	0	1
Vt	180	159	115	1	0	0	0	8	0	19
Wash	122	94	99	0	0	0	0	0	0	6
W Va	117	85	116	4	2	0	0	3	0	3
Wis	116	95	106	1	0	0	0	0	0	4
Wyo	78	25	77	7	0	3	0	0	0	7
TOTAL	6254	4686	5209	296	31	22	10	69	9	200

Parties in the "other(1)" column are: Co., Unity; Ct., Independent Pty; Il, Downstate United; Me, Socialist; Mi, Working Class; NY, Conservative (21) and Independence (8); Or, Independent Pty; RI, Moderate; S.C., American; Ut., United Utah; Vt, Progressive; WV, American Freedom.

Parties in the "other(2)" column are: N.Y., Reform (9) and Women’s Equality (1)., S.C., United Citizens (2) and Independence (1); Ut., Independent American; Vt, Liberty Union (2) and Green Mountain (1).

Nine states have income tax returns that provide a place for a taxpayer to send a small donation to that taxpayer’s favorite political party. Page four shows the money received by each party from income tax returns filed during 2022. B.A.N. has been tracking this data every year, starting in 2000. Over the years, some states have abandoned the program, so the totals aren’t as high these days as they were in the past. The 2022 "other" entries are: Minnesota: Grassroots-Legalize Cannibis $620; Legal Marijuana Now $975; Independence $1,592. New Mexico: Better for America. Oregon: Independent Party $1,473; Progressive $711; Working Families $1,146. Utah: Independent America $4,848; United Utah $3,362.

The chart on page five shows the number of candidates on the ballot for U.S. House in each state. No candidate is counted twice; if the candidate is the nominee of two parties, he or she is listed in the party of membership. The "other(1) column is: Colorado, Unity; Delaware, Nonpartisan; Illinois and Michigan, Working Class; Minnesota and Nebraska, Legal Marijuana Now; New Jersey and Pennsylvania, Socialist Workers; New York Conservative; Oregon, Progressive; Rhode Island Moderate; South Carolina Alliance; Utah, United Utah. In the "other(2)" column: Colorado, Colorado Center; Minnesota, Grassroots; Utah, Independent American. This chart, plus similar charts in each election year in past issues of B.A.N., reveal that the Democratic Party has fewer legislative candidates, as a percentage of the number of seats up, than at any time since before 2000.

On October 23, Congresswoman Liz Cheney of Wyoming appeared on "Meet the Press." She predicted that if the Republican Party nominates Donald Trump for president in 2024, a new conservative party would arise.

The Forward Party has become a board member of the Coalition for Free & Open Elections (COFOE). COFOE is a loose coalition of most of the nation’s nationally-organized minor parties, plus organizations that support their quest for better ballot access laws. It has existed since 1985.

Florida allows a group to become a qualified party if it submits a list of its officers and its bylaws, and if it agrees to make financial reports every six months. Recently a new party called the Coalition with a Purpose Party qualified. It appears to be composed of persons interested in the political problems of Puerto Rico. Also recently the Unity Party disbanded in Florida; it had qualified in 2021.

Last month, the Connecticut Independent Party survived two court challenges to its nominations decisions. One case was filed by the Republican nominee for Treasurer, who had tried to get the Independent Party nomination, but had failed (Connecticut permits fusion). He argued that all of the party’s nominees should be stricken from the ballot because the party hasn’t submitted its bylaws to the Secretary of State for many years.

The other challenge was filed by the Republican Party nominee for Governor, who had tried and failed to get the Independent Party’s nomination. He charged that the Independent Party’s statewide nominating convention had cheated him, because the vote was tied, and then the state chair, who had already voted once, cast another tie-breaking vote. In both cases, the courts ruled for the party, partly on the grounds that the lawsuits had been filed too late.