NEW YORK DEMOCRATIC BALLOT ACCESS CURTAILMENT BACKFIRES ON PARTY

In 2020, New York vastly increased ballot access requirements, under the determined leadership of then-Governor Andrew Cuomo, a Democrat. No other state sharply increased ballot access rules in 2020 or has done so since. No New York Democratic legislator voted against the new law, nor has any Democrat since then introduced a bill to ameliorate it.

In 2022, the Democratic Party of New York suffered the greatest decline of any state Democratic Party in the nation. A Politico news story of November 17, 2022, is headlined, "New York Democrats look for someone to blame after election catastrophe." The article says, "New York Democrats were the national outlier on Election Day."

If one compares the percentage of voters who voted for Democratic nominees for U.S. House in each state in both 2020 and 2022, one finds that the Democratic share of the U.S. House vote declined more in New York than in any other state in which the Democrats ran a full slate, with the only exception of Montana, where a strong independent received the votes of a large share of Democrats.

In New York, Democratic nominees for House received 53.6% of the vote in 2022, compared to 62.0% in 2020. The ratio of the two percentages is .86%. In no other state in which the party ran a full slate was the ratio that low, except, as already noted, in Montana. The ratio was also lower in Arizona (where Democrats skipped running anyone in two seats), Florida (they skipped three seats), Louisiana (they skipped two seats), and South Carolina (they skipped two seats).

In 2020 Democrats had run someone in every district in those states, except they had skipped two seats in Florida.

Furthermore, New York Democratic nominees for U.S. House, and for the top office (president or governor), received a lower share of the vote in 2022 than at any time since 2002.

~	HOUSE	TOP
2022	53.6%	52.7%
2020	62.0%	60.9%
2018	67.1%	59.6%
2016	62.9%	59.0%
2014	55.0%	54.2%
2012	64.0%	63.3%
2010	57.8%	62.5%
2008	67.1%	62.9%
2006	67.5%	69.6%
2004	59.2%	58.4%

Is there any connection between the Democratic slump in New York, and the new ballot access restrictions? I believe there is. The Democratic Party, for over fifty years, has trumpeted the message that it is the champion of voting rights. In 2004 the national convention resolved, "The Democratic Party recognized the right to vote as the most fundamental of all rights in our democracy. And no duty of the Party is more important than protecting the sanctity of this right."

Voters respond with great disdain to hypocrisy. The New York Democratic Party in 2020 eliminated the ability of voters to vote for the third and fourth largest nationally-organized parties in the U.S.

No rationale was offered for this act, except the insincere claim that because public funding was beginning in 2024 for candidates, the state needed to save money by reducing the number of minor party candidates. This was insincere because the state knew that the Second Circuit had already approved Connecticut’s public funding program which basically sends money only to Democratic and Republican nominees. New York is also in the Second Circuit.

Large numbers of voters may not have been aware of these details, but certainly large numbers of voters realized that the Democratic state government had changed the law to give New Yorkers fewer choices on their ballots than at an time since 1946. Democrats suddenly looked less worthy.

Another reason the new ballot access law may have hurt the Democratic Party in 2022 in New York, is that when voters are angry they frequently want to cast protest votes. In 2020, the presence of the Libertarian, Green, and SAM Parties on the ballot meant that in sixteen of the twenty-seven U.S. House districts, voters could vote for someone from those minor parties. But with those three parties off the ballot, they had no U.S. House nominees. If it plausible that some of the votes received by Republicans in 2022 would have gone to minor parties if they had been on the ballot.

On December 12, the Second Circuit refused to hear Libertarian Party of NY v Board of Elections, 22-44. This is the case that challenges the 2020 ballot access law.

On December 22, the U.S. Senate passed S.4573, the "Electoral Count Reform Act of 2022". On December 23, the House passed it, as part of the budget act. It is the first federal election law bill to pass since 2002, when the "Help America Vote Act" outlawing mechanical voting machines and punchcard ballots.

The new bill saves and strengthens the tradition that the voters, not the legislatures, choose the presidential electors.

Under the old 1845 law, preserved in the last revision in 1887, if a state holds a popular vote for presidential electors but "fails to make a choice", then the legislature can choose the electors.

"Fails to make a choice" is hopelessly vague. In 2000, the Florida presidential vote was virtually tied, and weeks of partial recounts had not settled the winner. Therefore, the Florida House passed a bill, choosing the Republican slate of presidential electors. The Florida Senate, which also had a Republican majority, was about to pass the same bill. But then the U.S. Supreme Court stopped the recount on the evening of December 12 and declared George Bush the winner of the Florida vote.

Under the 2022 Act, the Florida legislature could not have chosen the electors after the popular vote had been held, because the 2022 Act says the legislature cannot intervene except in the case of force majeure events. This means terrible physical calamity, such as a statewide weather calamity, or terrorist attack. Further, even in the case of such a event, the legislature cannot choose the electors itself; instead it can extend the period for a later popular vote.

Also, state law must have defined force majeure in advance.

Of course it will still be true that theoretically, a state legislature could pass a law in advance of a presidential election, saying the legislature will choose the electors and there will be no popular vote. But it is overwhelmingly likely that no legislature will ever pass that kind of bill, because our tradition of popular voting for president is deeply rooted. The last state to allow legislators to choose presidential electors, and dispense with a popular vote, was South Carolina before the Civil War (it is true that the Colorado legislature chose the electors in 1876 but that was only a temporary measure dictated by the state’s awkward transition to statehood).

Other Features of the 2022 Law

1. The Act moves the date on which presidential electors vote for president one day later, to give a little more time for popular votes to be counted.

2. It requires the Governor of each state to certify the popular election results.

3. It sets up specific procedures for presidential candidates to go to federal court if there is a dispute about the popular vote, on an expedited basis. The old law did not give federal courts this power, which is why the 2000 Florida vote contest was in state court.

4. It says the Vice President has no role except a ministerial one, on the date in January of the year following the presidential election when Congress counts the Electoral votes.

5. It says that when Congress counts the Electoral vote, a debate about the validity of the results can only be held if at least 20% of the members of either House of Congress ask for one.

6. It says that if some electoral votes are not cast, the "majority" required to elect a president will be reduced.

For example, in 1872, when Congress refused to count three electoral votes because they had been cast for a dead candidate, the "majority" need not include those three missing votes.

Oddly enough, in all U.S. history, no one had ever determined the meaning of a "majority" of the electoral vote, so that it was ambiguous whether it was a majority of all the valid electoral votes, or the number of potential votes, even invalid ones.

U.S. Senator Susan Collins was the lead sponsor of the bill. It passed in the Senate 68-29, and the House 225-201. Only nine Republicans in the House voted for the bill. None of them was from a top-two state except for Jaime Herrera Beutler of Washington state, and she had been defeated last month.

Arkansas: the state did not appeal the September 30, 2022 decision in Libertarian Party of Arkansas v Thurston, which had struck down the 3% petition for a group to become a qualified party.

Delaware: a U.S. District Court will hold a trial in Adams v Carney on April 13-14. This is the case over the state law that does not allow anyone to be appointed to most judicial posts unless he or she is a registered member of the Republican or Democratic Parties.

Georgia: on December 21, the Libertarian Party submitted a massive amount of evidence in Cowen v Raffensperger, the lawsuit over the 5% petition requirement for U.S. House. This part of the case concerns Equal Protection, and the evidence shows that the law was passed in 1943 in order to block the Communist Party, and also that the law was tweaked in 1986 in an attempt to discriminate against minor party candidates for district office, relative to statewide office.

~	Dem	Rep.	Lib’t.	Green	Constit.	Wk.Fm	other pty	indep.
Ala.	436,746	942,154	32,879	0	0	0	0	0
Alas.	27,145	232,532	0	0	0	0	0	0
Ariz.	1,322,027	1,196,308	53,762	0	0	0	0	0
Ark.	280,187	592,437	28,682	0	0	0	0	0
Cal.	6,621,616	4,222,025	0	0	0	0	0	0
Colo.	1,397,170	1,031,693	43,534	0	0	0	16,379	11,354
Ct.	701,175	535,943	0	0	0	22,689	0	0
Fla.	3,201,522	4,474,847	32,177	0	0	0	0	49,201
Ga.	1,946,117	1,908,442	81,365	0	0	0	0	0
Hi..	290,894	106,358	4,915	4,142	0	0	2,208	0
Idaho	169,808	358,539	4,126	0	8,500	0	0	49,917
Ill.	2,329,136	1,701,055	68,671	0	0	0	0	0
Ind..	704,480	1,090,390	63,823	0	0	0	0	0
Iowa	533,330	681,501	0	0	0	0	0	0
Kan.	372,214	602,976	29,766	0	0	0	0	0
Ky.	564,311	913,326	0	0	0	0	0	0
La..	481,065	876,843	4,865	0	0	0	5,388	15,129
Md.	1,316,897	682,293	0	0	0	0	0	0
Mo.	872,694	1,146,966	34,821	0	14,608	0	0	0
Nev.	498,316	490,388	6,422	0	5,208	0	0	8,075
N.H.	332,193	275,928	12,390	0	0	0	0	0
N.Y.	3,022,822	2,204,499	0	0	0	297,739	0	26,844
No.C.	1,784,049	1,905,786	51,640	29,934	0	0	0	0
No.D.	59,995	135,474	0	0	0	0	0	44,406
Ohio	1,939,489	2,192,114	0	0	0	0	0	0
Okla..	369,370	739,960	20,495	0	0	0	0	20,907
Ore.	1,076,424	788,991	0	23,454	0	0	36,883	0
Pa.	2,751,012	2,487,260	72,887	30,434	0	0	26,428	0
S.C.	627,616	1,066,274	0	0	0	0	0	0
S.D..	91,007	242,316	14,697	0	0	0	0	0
Utah	0	571,974	31,784	0	0	0	12,103	459,958
Vt..	196,575	80,468	0	0	0	0	1,574	7,871
Wash.	1,741,827	1,299,322	0	0	0	0	0	0
Wis.	1,310,467	1,337,185	0	0	0	0	0	0
TOT.	39,369,696	39,114,567	693,701	87,964	28,316	320,428	100,963	693,662

Parties in the "Other" column are: Colorado: Unity; Hawaii, Aloha Aina; Louisiana, Independent Party; Oregon, Progressive; Pennsylvania, Keystone; Utah, Independent American; Vermont, Green Mountain Liberty & Justice.

U.S. Senate totals in 2016, when these same seats were up, were: Democratic 51,297,372; Republican 40,784,703; Libertarian 1,788,027; Green 695,604; Working Families 428,854; Constitution 124,587; Independence 150,457; other parties 467,550; independents 461,960.

U.S. Senate totals in 2010 for these same seats were: Democratic 29,101,467; Republican 32,940,025; Libertarian 780,676; Green 526,669; Constitution 338,593; Working Families 233,483; other parties 659,219; independents 2,000,132.

U.S. Senate totals in 2004 for these same seats were: Democratic 43,630,378; Republican 39,956,419; Libertarian 770,185; Constitution 401,069; Green 157,533; Reform 22,599; Socialist Workers 16,753; other parties 1,044,293; independents 239,795.

Note concerning all three vote charts: for states with ranked choice voting, the totals shown are the first choice votes.

Georgia held a run-off on December 6 between the Democratic and Republican nominees. The totals for that election were: Democratic 1,820,633; Republican 1,721,244. The runoff was needed because Georgia requires all winners to receive 50% of the general election popular vote, and in the November election, no one had received 50%.

~	Dem.	Rep.	Lib’t.	Green.	Wk Fam	Constit	oth(1)	oth(2)	indp.
Alab.	318,540	942,393	74,920	0	0	0	0	0	0
Alas.	128,553	129,379	4,570	0	0	0	0	0	0
Ariz.	1,004,462	1,324,961	0	0	0	0	0	0	0
Ark.	271,771	598,000	25,331	0	0	0	0	0	0
Cal.	6,743,732	3,859,662	0	52,965	0	0	0	0	0
Colo.	1,365,427	1,050,959	34,234	0	0	0	3,796	2,876	0
Conn.	712,823	521,387	2,140	7,257	8,703	0	9,041	0	0
Del	178,416	138,201	3,074	0	0	0	1,958	0	0
D.C.	174,212	11,699	4,003	9,867	0	0	0	0	0
Fla.	2,905,702	4,271,196	80,370	0	0	0	0	0	74,777
Ga.	1,863,870	2,044,102	0	0	0	0	0	0	0
Hi.	271,953	124,091	5,130	0	0	0	0	0	0
Ida.	180,997	395,351	7,280	0	0	0	0	0	0
Ill.	2,271,361	1,768,782	0	0	0	0	4,605	0	4,439
Ind.	716,412	1,108,575	22,420	0	0	0	0	0	9,386
Iowa	526,460	677,857	0	0	0	0	0	0	6,035
Kan.	425,322	569,567	6,928	0	0	0	0	0	0
Ky.	490,921	953,296	0	0	0	0	0	0	10,111
La.	318,932	773,701	37,236	0	0	0	3,255	0	0
Me.	372,827	270,523	0	0	0	0	0	0	21,655
Md.	1,291,446	690,463	11,049	0	0	0	0	0	0
Mass.	1,634,193	705,903	5,995	0	0	0	0	0	0
Mich.	2,184,504	2,083,361	51,408	0	0	8,175	48,078	0	0
Minn.	1,250,518	1,200,855	0	0	0	0	33,538	4,943	0
Miss.	251,202	454,329	3,569	0	0	0	0	0	0
Mo.	794,978	1,223,617	41,490	0	0	0	0	0	0
Mont.	158,745	245,081	12,611	0	0	0	0	0	47,195
Nebr.	235,572	414,599	0	0	0	0	13,016	0	0
Nev.	480,774	515,535	9,000	0	0	4,194	0	0	0
N.H	339,027	277,808	0	0	0	0	0	0	0
N.J.	1,407,438	1,158,491	15,736	0	0	0	1,997	0	14,926
N.M.	387,665	316,352	0	0	0	0	0	0	0
N.Y.	3,028,115	2,233,120	0	0	171,381	0	320,049	1,878	1,095
No.C.	1,795,170	1,956,906	8,325	0	0	0	0	0	0
No.D.	0	148,399	0	0	0	0	0	0	89,644
Ohio	1,790,614	2,318,993	0	0	0	0	0	0	0
Okla.	356,988	760,639	0	0	0	0	0	0	28,684
Ore.	1,012,725	851,991	0	6,033	0	12,837	9,052	0	0
Pa.	2,436,919	2,702,262	0	0	0	0	12,820	0	0
R.I.	201,750	150,024	0	0	0	0	5,489	0	0
So.C.	517,129	1,056,078	0	3,547	0	0	2,634	0	0
So.D.	0	253,821	74,020	0	0	0	0	0	0
Tenn.	581,902	1,099,462	0	0	0	0	0	0	29,060
Tex.	2,999,053	4,559,280	129,001	0	0	0	0	0	63,175
Utah	342,078	670,924	8,287	0	0	12,544	4,035	25,362	0
Vt.	176,494	78,397	12,590	0	0	0	0	0	13,541
Va.	1,572,296	1,462,049	0	0	0	0	0	0	7,466
Wa.	1,751,582	1,261,961	0	0	0	0	0	0	0
W.V.	149,706	312,004	0	0	0	0	0	0	10,257
Wis.	1,012,955	1,403,080	32,057	0	0	0	0	0	63,996
Wyo.	47,250	132,206	5,420	0	0	4,505	0	0	0
TOT.	51,431,481	54,231,672	728,194	79,669	180,084	42,255	473,363	35,059	495,422

Parties in the "other(1)" column are: Co., Unity; Ct.., Independent Party; Del., Non-Partisan Party; Ill., Working Class; La., Independent Party; Mi., Working Class; Mn., Legal Marijuana Now; Neb., Legal Marijuana Now; N.J., Socialist Workers; N.Y., Conservative; Or., Progressive; Pa., Socialist Workers; R.I., Moderate; S.C., Alliance; Ut., Indp. American. Other(2): Co., Colorado Center; Mn., Grassroots-Legalize Cannabis; N.Y., Medical Freedom; Ut., United Utah.

In 2020, the U.S. House totals had been: Democratic 77,404,247; Republican 72,627,195; Libertarian 1,110,357; Green 95,663; Working Families 388,923; Constitution 82,567; other parties 657,191; independent 373,978.

~	Democratic	Republican	Lib’t.	Green	Wk Fam	Constit	oth(1)	oth(2)	indp.
Alab.	412,961	946,932	45,958	0	0	0	0	0	0
Alas.	63,851	144,449	0	0	0	0	0	0	54,668
Ariz.	1,287,891	1,270,774	0	0	0	0	0	0	0
Ark.	319,242	571,105	16,690	0	0	0	0	0	0
Cal.	6,470,099	4,462,910	0	0	0	0	0	0	0
Colo.	1,468,481	983,040	28,939	0	0	21,623	6,687	0	0
Conn.	690,183	546,209	0	0	16,137	0	12,400	2,827	0
Fla.	3,106,313	4,614,210	19,299	0	0	0	0	0	31,577
Ga.	1,813,673	2,111,572	28,163	0	0	0	0	0	0
Hi.	261,025	152,237	0	0	0	0	0	0	0
Ida.	120,160	358,598	6,714	0	0	0	0	0	101,835
Ill.	2,253,748	1,739,095	111,712	0	0	0	0	0	0
Iowa	482,950	709,198	28,998	0	0	0	0	0	0
Kan.	499,849	477,591	11,106	0	0	0	0	0	20,452
Me.	376,934	287,304	0	0	0	0	0	0	12,581
Md.	1,293,944	644,000	30,101	14,580	0	0	17,154	0	0
Mass.	1,581,214	859,433	39,205	0	0	0	0	0	0
Mich.	2,430,505	1,960,635	38,800	10,766	0	16,246	4,973	0	0
Minn.	1,312,349	1,119,941	0	0	0	0	51,945	25,397	0
Nebr.	242,006	398,334	26,455	0	0	0	0	0	0
Nev.	481,991	497,377	14,919	0	0	9,918	0	0	0
N.H	256,766	352,813	7,843	0	0	0	0	0	0
N.M.	370,168	324,701	17,387	0	0	0	0	0	0
N.Y.	2,879,092	2,449,394	0	0	261,323	0	313,187	0	0
Ohio	1,545,489	2,580,424	0	0	0	0	0	0	0
Okla.	481,904	639,484	16,243	0	0	0	0	0	15,653
Ore.	917,074	850,347	6,867	0	0	8,051	0	0	168,431
Pa.	2,996,882	2,229,532	51,214	24,138	0	0	20,346	0	0
R.I.	207,166	139,001	2,811	0	0	0	0	0	7,635
So.C.	692,691	988,501	20,826	0	0	0	0	0	0
So.D.	123,148	217,035	9,983	0	0	0	0	0	0
Tenn.	572,153	1,128,097	0	0	0	0	0	0	37,204
Tex.	3,553,656	4,437,099	81,932	28,584	0	0	0	0	0
Vt.	68,248	202,147	0	0	0	0	0	0	13,060
Wis.	1,358,774	1,268,535	0	0	0	0	0	0	27,198
Wyo.	30,686	143,696	8,157	0	0	0	0	0	0
TOT.	43,023,266	42,805,750	670,322	78,068	277,460	55,838	426,692	28,224	497,535

Parties in the "Other(1)" column are: Colorado, Unity; Connecticut, Independent Party; Md., Working Class; Michigan, Natural Law; Minnesota: 29,346 Legal Marijuana Now and 22,599 Legalize Cannabis; New York, 253,624 Conservative; Pennsylvania, Keystone.

Parties in the "Other(2)" column are: Connecticut, Griebel Frank for Ct; Mn., Independence-Alliance 18,156 and 7,241 Socialist Workers.

Gub. totals in 2018 were: Democratic 46,070,426; Republican 43,171,009; Libertarian 898,165; Green 285,342; Working Families 132,389; Constitution 72,978; other parties 892,089; independent 345,382..

Gub. totals in 2014 were: Republican 32,027, 999; Democratic 29,438,775; Libertarian 883,728; Green 405,484; Conservative 250,634; Working Families 151,006; Independence 134,662; Constitution 88,619; United Independent 71,814; Moderate 69,278; Independent Parties 65,231; Women’s Equality 53,802; Stop Common Core 51,294; Grassroots 31,259; Americans Elect 15,432; Progressive 13,898; New Independent Party 10,582; Iowa 10,239; United Citizens 5,622; Sapient 4,963; Liberty Union 1.673.

On December 21, the Republican National Committee set the dates for the 2024 presidential convention. It will be July 15-18. This is a relatively early date, compared to other national convention dates of the major parties for the last twenty years. The city, Milwaukee, had already been chosen.

Most states have petition deadlines for presidential candidates who run outside the two major parties in August, with a few in September. Therefore, if there is a major split in the party at the convention, there will be time for a new candidate to arise.

On December 9, U.S. Senator Kyrsten Sinema of Arizona revealed that she had changed her voter registration from "Democratic" to "independent." On December 15 she filed a form with the Federal Election Commission saying she will run for re-election in 2024 as an independent.

Her model may very well be U.S. Senator Harry F. Byrd, Jr. He had been elected as a Democrat in a special election in Virginia in 1966. In 1970, when his term expired, he declared himself to be an independent, not a Democrat. He ran for re-election in 1970 and was re-elected, even though both major parties ran a candidate against him. When he was re-elected, he was the first independent ever elected to either branch of Congress from Virginia. He was also re-elected as an independent in 1976, although that year, the Republicans didn’t oppose him.

Arizona has never elected an independent or minor party candidate to either House of Congress. It hasn’t even elected such a candidate to its state legislature, although one had been elected to the territorial legislature in the 19^th century. Arizona and Hawaii are the only states that have never elected an independent to a federal or state office. Arizona had an independent legislator in 2003, Sylvia Laughter, but she had switched in the middle of her term and was defeated when she tried to retain her seat as an independent.

On December 2, Chase Oliver declared his candidacy for the Libertarian presidential nomination. He had been the party’s U.S. Senate nominee in Georgia in 2022, and had been the only Libertarian candidate in 2022 to be featurd in the New York Times. He had debated U.S. Senator Raphael Warnock during that campaign.

On December 14, Charlene Mitchell died at the age of 92. She was the Communist Party presidential candidate in 1968. She was the first black woman to ever appear on a government-printed ballot as a presidential candidate. Also, she was the first minor party presidential candidate to be put on the ballot due to a court order of a lower federal court.

She had filed a petition in Minnesota, but the Secretary of State refused to put her on the ballot because he believed that Congress had outlawed the Communist Party. A three-judge U.S. District Court put her on the ballot. No lower federal court had ever before done that for any minor party candidate, in a constitutional case. One of the three judges was Harry Blackmun, who the following year was appointed to the U.S. Supreme Court. The case was Mitchell v Donovan, 290 F.Supp.642. Afterwards it went to the U.S. Supreme Court, which didn’t make a definitive ruling. But in 1974 the Communist Party a case against Indiana in the U.S. Supreme Court that established that states cannot keep parties off the ballot just because they teach that someday, there will be a revolution.

Mitchell was only on the ballot in Minnesota and Washington. California and Ohio counted write-ins for her, and she received 1,075 votes.