NEW MEXICO LEGISLATURE PASSES BILL TO RESTRICT MINOR PARTY BALLOT ACCESS

On March 14, the New Mexico legislature passed SB 180, which makes it more difficult for minor parties to place candidates on the November ballot (although it does not affect presidential candidates). Governor Michelle Lujan Grisham has not yet signed the bill.

The bill doubles the petition requirement for the nominees of parties that nominate by convention. It does not affect parties that nominate by primary. Currently the Libertarian Party nominates by primary, but other minor qualified parties nominate by convention. Only parties that polled 5% of the vote in the last election, and that have registration of one-third of 1%, may nominate by primary. The Libertarian Party has had primary status starting in 2017, and the Greens had it 1995-2004, but no other minor parties in New Mexico history have been entitled to their own primary.

If the bill had existed in 2022, it would have required the parties that nominate by convention to submit 181,116 signatures if they wanted to run a full slate of nominees for federal and state office.

No newspaper in New Mexico covered this news. At the hearings, it seemed most, if not all, legislators did not understand what they were voting on. SB 180 is an omnibus election law bill, over 150 pages long, and the provision affecting minor parties got little attention. Green Party representatives testified against the bill, but the testimony of each individual was limited to one minute. After the testimony was over, the sponsor of the bill asserted that the bill did not change the minor party requirements, and no member of the committees asked any questions about the apparent contradiction.

New Mexico is the only state with a "double-petitioning" requirement. New Mexico requires one petition to qualify the party. New parties then nominate by convention. But, after their convention, each of their nominees (except the presidential nominee) must then submit his or her own separate new petition. The requirement is not logical. Once the party has shown by its first petition that it has a modicum of support, it follows logically that candidates nominated by that party also enjoy support.

No one would tolerate a law that says a primary winner should, after winning a primary, submit a petition to be on the general election ballot. But requiring such petitions for candidates who have won a convention nomination is equally illogical. Some might argue that a primary winner gets more votes than a convention winner does, but that is not necessarily true. In 2020, some of the Libertarian candidates for legislature polled as few as 20 votes in the Libertarian primary, but they weren’t expected to submit a post-primary petition.

The only other state that ever had a double-petition requirement was Maryland, starting in 1971. But the highest state court in Maryland, the State Court of Appeals, struck down the nominee petitions in 2003 in Maryland Green Party v Maryland Board of Elections, 832 A2d 214. It said the nominee petitions were redundant and not needed for any legitimate purpose.

SB 180 does say that if a party has registration of 2% of the last vote cast, in the state or in any particular district, it is exempt from the nominee petitions.

However, no third party in New Mexico or any other state has registration that high, with the exception of some parties with "Independent" or "Independence" in their name. Experience has shown that if a party puts either of those words in its name, it will have a relatively large registration because independent voters often tend to think, if they want to register as "independent", they should join such parties. Examples are the American Independent Party of California (with almost 800,000 members) and the Independent American Party of Nevada (with almost 80,000 members).

New Mexico adopted the double-petition system in 1969, not for any election administration-related reason, but because the People’s Constitutional Party had qualified in 1968. It was the first ballot-qualified party in any state in U.S. history to hold itself out as representing the interests of Hispanic voters, and its formation threatened the Democratic-majority legislature. The 1969 session passed the law for nominee petitions, effectively killing the People’s Constitutional Party, which never again had any nominees on the ballot.

After the 1994 election, when the Green Party gubernatorial nominee, Roberto Mondragon, polled 10% and appeared to cost the Democrats the governorship, the Democratic-majority 1995 session of the legislature doubled the nominee petition from one-half of 1% to 1%, and now it has again doubled it, to 2%.

The Republican Party has not had a majority in either house of the New Mexico legislature since 1918.

SB 180 passed on a party-line vote, with all of its "yes" votes from Democrats and all "no" votes from Republicans.

The Libertarian Party had challenged the double-petition law in 2006, but the judge ruled that the party had made a procedural error that did not allow it to submit any evidence, so with no evidence, the judge upheld the law in a non-published opinion, Libertarian Party of New Mexico v Vigil-Giron. The party appealed, but the Tenth Circuit ruled that excluding the evidence had been proper. The Tenth Circuit opinion did not discuss the merits of the case.

On March 14, the Minnesota Senate Elections Committee passed SF 1827. It changes the definition of a qualified party from a group that got 5% for a statewide race in either of the last two elections, to 10%. Already Minnesota’s definition of "party" is one of the most severe in the nation. For example, it is one of only six states in which the Libertarian Party has never been ballot-qualified (the others are New Jersey, Pennsylvania, Rhode Island, Tennessee, and Virginia; and it has only been qualified in Connecticut for certain offices, and in Georgia only for statewide offices). Only two states now have 10% vote tests, New Jersey and Virginia. If the bill passes, it will remove the only ballot-qualified party, the Legal Marijuana Now Party, from the ballot before the 2024 election is held.

On March 17, the House Elections, Finance & Policy Committee considered HF 2486, which is identical. The Committee voted not to advance the bill, but to include its provisions in a future omnibus election law bill, which has not yet been introduced.

All the Democratic members of both committees supported the bill, and all Republican members opposed it.

The rationale for the bill is that the Legal Marijuana Now Party, and another pro-marijuana party that was on the ballot in the recent past, have had "insincere" nominees who entered and won those party’s primaries, not because the candidates believed in marijuana legalization, but because they wanted to hurt Democratic nominees. However, witnesses against the bill said the solution is to let small qualified parties nominate by convention instead of by primary. Minnesota’s neighbor states of Michigan and South Dakota permit this. When a minor party nominates by convention, it is able to screen out insincere potential candidates.

Arkansas: on March 16, the Senate State Agencies & Governmental Affairs Committee passed SB 277. It lowers the petition for new parties from 3% of the last vote cast (about 27,000 signtures) to 10,000 signatures. It expands the petitioning period from three months to 15 months.

Kansas: SB 290, which would have moved the primary from August to May and thereby automatically moved the independent petition deadline from August to May, seems unlikely to pass.

Maine: on March 15, the Veterans & Legal Affairs Committees heard LD 769, which eases the definition of a party from 5,000 registrations in its first four years on the ballot but 10,000 thereafter, to a group that has 5,000 registrants. The committee hasn’t voted yet.

Texas: bills are pending to make ballot access more restrictive. All have Republican sponsors. SB 1660 would stiffen the definition of a party, from a group that polled 2% at any of the last five elections, to 10%. This would remove the Libertarian and Green Parties. SB 2531 would double the independent petition from 1% of the last gubernatorial vote, to 2%. SB 2532 and SB 2271 would increase filing fees.

New Hampshire: on March 22, HB 363, which would have moved the deadline for an independent candidate to file a declaration of candidacy from June to July, was defeated by voice vote in the House.

Vermont: on March 3, the House passed HB 429 on a voice vote. It would ban "sore losers", and it would double the number of write-in votes needed for a write-in candidate in a primary to obtain a party nomination. But a provision moving the independent petition deadline from August to May was deleted.

Recently, the press has considered the idea that Donald Trump, if denied the Republican presidential nomination in 2024, would likely run as an independent or minor party candidate in the general election. Trump has not said that he would do that, but the speculation doesn’t die down.

The spring 2023 Harvard Journal of Law & Public Policy has an article "How State ‘Sore-Loser’ Laws Make it Impossible for Trump to Run a Successful Third-Party Campaign If He Loses the Republican Primary." The authors are four attorneys in the law firm Holtzman Vogel Baran Torchinsky & Josefiak. The article concludes that 28 states would bar Trump from the general election ballot, if he had run in that state’s presidential primary and yet did not become the Republican presidential nominee. The 28 states, the authors say, are: Alabama, Arizona, Arkansas, Colorado, Georgia, Illinois, Kansas, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin.

The article has factual mistakes, but it is true that courts in Alabama, Michigan, Pennsylvania, and Texas have said that states can bar presidential candidates from the general election, if they had run in major party presidential primaries and then failed to gain that major party’s nomination. The first, a Texas decision, filed in 1996, did not involve declaratory relief, but only denial of injunctive relief. The other three, filed in 2012 and 2016, did include declaratory relief.

Those decisions are: (1) De La Fuente v Merrill, 214 F.Supp.3d 1241 (m.d. Alabama 2016); (2) Libertarian Party of Michigan v Johnson, 905 F Supp 2d 751 (e.d. Michigan 2012); (3) De La Fuente v Cortes, 751 Fed.Appx. 269 (Pennsylvania, 3^rd circuit, 2018) (4) National Committee of the U.S. Taxpayers Party v Garza, 924 F.Supp.71 (w.d. Texas 1996).

However, it is also true that no state had ever barred a presidential candidate from the general election ballot, on "sore loser" grounds, until 2012, even though "sore loser" laws had existed for more than a century. Before 2012, 34 states had printed "sore losers" on their presidential general election ballots, setting precedents that the laws don’t apply to presidential candidates. It should strike anyone that it is peculiar that past practice should suddenly count for nothing when the law is applied.

Types of "Sore Loser" Laws

The Harvard Journal article says there are four types of law that would bar Trump: (1) explicit sore loser laws; (2) laws that require candidates to file simultaneously for a primary or for the general election, and they must choose one or the other; (3) laws that require a minor party or independent candidate not to have been affiliated with a major party; (4) laws that set a deadline for filing as an independent that are so early, no one yet knows who will win a major party nomination.

Disaffiliation Requirements

The Harvard Journal article is wrong to say that disaffiliation requirements would bar Trump. Every court that has ever considered a disaffiliation law in connection with a presidential candidate, has concluded that such laws cannot bar presidential candidates. There are three such decisions:

Arizona: the State Supreme Court ruled in Clayton v West, 489 P.2d 394 (2021) that Kanye West was not disqualified from being an independent presidential candidate because of his Republican registration. It reversed the lower court. West still didn’t get on the ballot, but only because his presidential elector candidates had not filed a "Statement of Intent" before the petition started.

Idaho: a state trial court ruled in Democratic Party of Idaho v Denney, cv01-20-14470, Ada Co., 2020, that Kanye West was not disqualified from being an independent presidential candidate because of his Republican registration.

Pennsylvania: the State Supreme Court ruled in In re Nader, 858 A 2d 1167 (2004) that Ralph Nader and his vice-presidential running mate, Peter Camejo, could not be barred from the ballot just because Camejo was a registered Green. Also they could not be barred just because Nader-Camejo were the nominees of the Reform Party in a few states, but were independent candidates in Pennsylvania.

The Harvard Journal article does not mention any of these decisions.

Deadline Problems

The Harvard Journal article says Trump would be barred in Kansas and Ohio because the independent deadline is too early. But the Kansas and Ohio deadlines for independent candidates are both in August. If there were states with a petition deadline so early as to interfere with Trump, such laws would be unconstitutional under Anderson v Celebrezze.

Simultaneous Filing Problems

The article says Trump would be barred from the ballot in some states because those states require a candidate who files to choose which method he or she will use. But this ignores the fact that no state requires the presidential nominee of a qualified party to file any sort of document, after being nominated. When a qualified party nominates someone for president, he or she gets on the November ballot because the state party submits a list of presidential elector candidates to the state elections office and announces to whom these electors are pledged. The presidential candidate does not sign or file any documents. The only exception is Pennsylvania, where the nominee himself or herself is expected to choose candidates for presidential elector, but that exception is not germaine.

Furthermore, 39 states have a procedure by which an unqualified party can qualify (by petition, or registration drive, or showing a level of organization) before it has chosen any candidates. A Trump party could qualify without any filing by Trump himself.

Explicit Sore Loser Laws

That leaves only explicit sore-loser laws. Many states have sore-loser laws that ban the "loser" of a primary from the general election ballot. Those laws obviously don’t apply to presidential candidates, because no candidate "loses" the nomination of his or her party by losing a single presidential primary.

The article acknowledges this point, which had been made by the Sixth Circuit in Anderson v Mills, 664 F 2d 600 (1981, Kentucky). That decision had kept independent candidate John Anderson on the Kentucky ballot in 1980, even though Anderson had run in the Republican presidential primary in Kentucky. The Sixth Circuit said the "loser" reference makes it obvious the sore loser law was not meant to apply to president.

The four court decisions that interpreted sore-loser laws to apply to presidential candidates are contradicted by a decision of the Ohio State Appeals Court, Brown v Taft, Tenth District, 92AP-1267, Sep. 18, 1992. That decision allowed Lyndon LaRouche to appear as an independent in November even though he had run that year in Ohio’s Democratic primary. It says, "At the general election, the voters do not directly elect a president. Instead, the voters elect electors to the electoral college, who in turn cast votes for a presidential candidate…Applying this analysis to the present set of facts, the fact that Lyndon H. LaRouche, Jr., allowed himself to be the first choice of candidates for delegate to the Democratic National Convention does not mean that he sought party nomination by declaration of candidacy for purposes of R.C. 3513.04." The article does not mention this decision.

Three of the four decisions that did intepret the sore-loser laws restrictively are flawed:

The Texas decision filed by the U.S. Taxpayers Party in 1996 is flawed because the party was seeking an advisory opinion from the court instead of presenting an actual case or controversy. The judge should not have adjudicated it. The U.S. Taxpayers Party said it wanted to nominate Pat Buchanan, but Buchanan had already rebuffed the party’s desire to nominate him. Even if the decision had gone the other way, it would have made no difference in the Texas 1996 election. Federal courts are not permitted to issue advisory opinions.

The Michigan case lost by the Libertarian Party in 2012 is also flawed, because when the U.S. District Court issued its opinion on September 7, it said that John B. Anderson had not been on the ballot in the 1980 Republican presidential primary in Michigan, and therefore the Libertarian Party had no precedent to depend on.

The judge was factually mistaken, because Anderson had appeared on the 1980 Michigan Republican presidential primary, and had still been allowed to appear on the November ballot as the nominee of his Anderson Coalition Party. Three days later, the judge issued an amended decision, acknowledging his mistake, but he wrote that "The Court did not in any way rely" on the incorrect fact. He then said that the Anderson precedent was not important because Michigan in 1980 had no procedure for an independent presidential candidate to get on the ballot. But that wasn’t accurate either. In 1976 a three-judge U.S. District Court had created an independent procedure in McCarthy v Austin, 423 F.Supp. 990 (w.d.), and in 1980 another U.S. District Court had created an even easier independent procedure for Michigan in Hall v Austin, 495 F.Supp.782 (e.d.).

The decision lost by Rocky De La Fuente in 2016 in Alabama is flawed because the U.S. District Court Judge refused to give any weight to the fact that the same law had already been construed in 1992 not to apply to presidential candidates. In 1992 Alabama had put Lyndon LaRouche on the November ballot as an independent even though he had run in the 1992 Alabama Democratic primary. The judge in the 2016 case said, "The Secretary of State has not offered any justification for Mr. LaRouche’s inclusion on the ballot, other than the fact that it happened ‘a long time ago and under a different Secretary of State.’ "

When a law is ambiguous, but it has been construed already, it violates every canon of justice to set it aside on the basis that the past construction was "a long time ago" and the decision had been made by a different government employee.

Furthermore, Alabama didn’t have a presidential primary until 1980, so the fact that there had only been one favorable precedent should have been placed in context.

Chances are if Alabama had had presidential primaries in 1912, Theodore Roosevelt would have set another precedent that the sore-loser law doesn’t apply. In 1912 no state had kept Roosevelt off the general election ballot as the Progressive nominee, even though he had run in all the Republican presidential primaries.

Why Sore Loser Laws Cannot be Applied to Presidential Elections

There are two reasons why sore loser laws cannot constitutionally be applied to presidential candidates, and one of them was expressed by the Ohio State Court of Appeals decision Brown v Taft, quoted above.

(1) The true candidates in presidential general elections are the candidates for presidential elector. Article Two makes this clear.

If this were not true, the election outcomes of 2000 and 2016 would have violated the Fourteenth Amendment. In 2016, Hillary Clinton received 65,853,510 votes, and Donald Trump received 62,984,824 votes. And in 2000, Al gore got 50,992,335 votes and George Bush got 50,455,156. The U.S. Supreme Court said in Gray v Sanders, 372 U.S. 368 (1963), "’We the people’ under the Constitution visualizes no preferred class of voters, but equality among those who meet the basic qualifications…The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote."

Gray v Sanders struck down a Georgia law for primaries that made it possible that the person who got the most popular votes would still fail to get the nomination. It is the essence of equal treatment for voters that the candidate who receives the most votes must be declared the winner over a candidate who got fewer votes.

The outcome that Donald Trump, not Hillary Clinton, won the election is incomprehensible if the true candidates had been Trump and Clinton. But, they weren’t. The voters of each state were electing presidential elector candidates for their own particular state.

People who argue that the presidential candidates are the true candidates in November, instead of the candidates for presidential elector, have a duty to explain how the results of the 2016 and 2000 elections are consistent with the Constitution.

In 2020, the U.S. Supreme Court issued a unanimous opinion in Chiafalo v Washington, a case over whether states could punish disobedient presidential electors. The opening paragraph says, "Every four years, millions of Americans case a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each state appoints based on the popular returns. Those few ‘electors’ then choose the President."

The four decisions interpreting sore-lower laws to apply to presidential elections did not meet their obligation to face up to Gray v Sanders. In the Michigan case, the judge wrote "The individual whose name appears on the ballot, whether it be Gary Johnson, Barack Obama or Mitt Romney, is the only ‘candidate." In the Alabama case, the judge quoted the Michigan decision and said the plaintiff’s point is "overly formalistic." In the Pennsylvania and Texas cases, the decision did not even discuss the point about presidential electors being the true candidates.

(2) The U.S. Supreme Court ruled in 1995 in U.S. Term Limits v Thornton that states cannot add to the qualifications listed in the Constitution, but they can have "procedural" requirements.

A "procedural" requirement is one that is required in order for election administrators to hold the election. Petitions for ballot access are procedural because, without them, the ballot might be cluttered with too many candidates, imperiling the administration of the election.

Disqualifying a presidential candidate because he or she engaged in a certain type of political behavior has no connection to an election "procedure". When a presidential candidate seeks the nomination of a political party by running in its primaries, that is political behavior, and states cannot bar candidates for such reasons. Sore-loser laws are not needed for election administration.

Those who believe that "sore-loser" laws do apply to presidential candidates often mention Storer v Brown, 415 U.S. 724, a 1974 U.S. Supreme Court decision which upheld prior disaffiliation laws as applied to candidates for Congress. But when Storer was decided, the U.S. Supreme Court had not yet ruled that states cannot add to the constitutional qualifications listed for federal office. That only happened in 1995, so Storer is outdated. Storer did not even discuss the qualifications issue, except in a footnote at the very end of the decision, which says "The argument is wholly without merit" but doesn’t explain why, except to say the requirement no more establishes a congressional qualification than a petition does.

Sore-loser presidential candidates have appeared on general election ballots in the elections of 1912, 1924, 1980, 1984, 1988, 1992, 2008, 2012, 2016, and 2020. They are deeply rooted in U.S. history, and include such significant figures as Theodore Roosevelt, Robert La Follette, John B. Anderson, and Ron Paul. Something is deeply wrong when political behavior that has been so well-established for so many years suddenly becomes illegal, without any intervening legislative changes.

Bills are pending in many states to alter presidential primaries:

Connecticut: SB 389 would use Ranked Choice Voting in presidential primaries.

Hawaii: SB 1005 would add a presidential primary, to be held in April. The state has never before had a presidential primary.

Idaho: HB 138 would move the primary from March to May.

Illinois: SB 1456 and HB 2807 would use Ranked Choice Voting for presidential primaries.

Kansas: SB 321 would restore the presidential primary, and hold it in March.

Maryland: SB 379 would move the primary from April to May.

Michigan: the state has already this year changed its primary from March to late February.

Missouri: several bills would restore the presidential primary and hold it in March.

Ohio: HB 21 would move the primary from March to May.

Oregon: SB 499 would move it from May to March.

Pennsylvania: HB 51 would move it from April to March.

Washington: HB 1592 would use Ranked Choice Voting in presidential primaries.

On March 22, the Seventh Circuit ruled that the lawsuit Gill v Linnabary, 22-1653, is moot. This is the lawsuit filed in 2016 that challenged the Illinois 5% petition for independent candidates for U.S. House. The court said it is moot because the district boundaries had changed in 2021. An entire new lawsuit now needs to be filed to reach the issue.

During March, the Secretaries of State of Arizona and Oregon both said that the petitions to qualify the No Labels Party are valid. The party is now ballot-qualified in Arizona, Colorado, Florida, and Oregon.

In addition, the party has finished its petitions in Alabama, Alaska, Nevada, North Carolina, and Ohio, and it has finished its registration drive in Maine. It is waiting for election officials to verify the signatures. The party is about to launch a registration drive in California, and is petitioning in many other states. No Labels is the only party that has qualified for the ballot in any state during 2023 so far.

Libertarian: the party has 1,500 registrations in Maine (it needs 5,000) and is about to start its North Dakota petition.

Constitution: the party has 5,000 signatures in North Carolina and is negotiating with the American Independent Party of California for that party to re-affiliate with the Constitution Party. It also is about to start its Missouri petition. Recently it was removed from the Hawaii ballot because it didn’t run any nominees in 2022.

Green: is almost finished with its registration drive in Delaware, and is almost finished with its South Dakota petition. It is petitioning in Hawaii. It is still waiting a ruling from the Montana Secretary of State on whether it is on the ballot.

Forward: is about to file for recognition in Florida, which would be the first state in which it is recognized.

On March 8, the voters of Redondo Beach, California, passed a measure to use Ranked Choice Voting for city elections. It will be the first city in Los Angeles County to use RCV. The same day, voters in Burlington, Vermont, voted to use RCV for Mayoral and School Committee elections. The city already has it for city council elections. It had it for Mayor in the past, and then had repealed its use in mayoral elections.

On February 28, Bob Richards died at the age of 97. He had been the Populist Party’s first presidential nominee, in 1984. He had also been a Gold Medalist in the Olympics of 1952 and 1956 in pole vaulting. While he was the 1984 Populist Party nominee, his party won an important ballot access decision in the Ninth Circuit, striking down the Idaho petition May deadline for new parties. Populist Party v Evans, 84-4108, not reported. That is why today the Idaho petition deadline for new parties is in late August. The Populist Party also ran presidential nominees in 1988 and 1992.

On March 2, the Libertarian National Committee filed a federal lawsuit against the Tidewater Libertarian Party, because the Tidewater Libertarian Party is not part of the Virginia Libertarian Party. Trademark law usually only pertains to business, and there are no precedents that parties have trademark protection. Libertarian National Committee v Dean, e.d., 3:23cv-155. So far the defendant has not filed anything in the case, not even the name of any defense attorney.

The New York Libertarian Party, and Green Party, have asked the U.S. Supreme Court to hear their appeal against the hostile 2020 New York ballot access changes. Libertarian Party of New York v New York State Board of Elections, 22-893. The Coalition for Free & Open Elections (COFOE) contributed $1,500 toward the costs of printing the brief. COFOE gets all its income from readers of B.A.N. Thanks to all who have contributed.

The Prohibition Party will hold its presidential convention in Buffalo, on May 7-9. The party has been holding its presidential conventions in the odd year before presidential elections ever since 1943.