PRESIDENT BIDEN DEFENDS BALLOT ACCESS FOR MINOR PARTY AND INDEPENDENT CANDIDATES

On October 2, President Joe Biden, speaking to a reporter from ProPublica, commented on the possibility that No Labels will run a presidential nominee in 2024. He said, referring to No Labels supporter Joe Lieberman, "Well, he has a democratic right to do it. There’s no reason not to do that. Now, it’s going to help the other guy. And he knows that…That’s a political decision he’s making that I obviously think is a mistake. But he has a right to do that."

Remarkably, this is the first time a Democratic president, or even a Democratic presidential nominee, has ever made a public statement in support of ballot access for an independent or minor party presidential candidate who is opposing that Democrat. A thorough search of old newspapers has turned up two occasions when a Republican president, or a Republican presidential nominee, made such a statement. But never had a Democratic president or presidential nominee been publicly supportive.

In 1924, Louisiana was the only state that kept independent Progressive presidential candidate Robert La Follette off the ballot. President Calvin Coolidge, running for re-election, sent a telegram on September 29 to the La Follette headquarters. He expressed his sympathy and regret that Louisiana was keeping La Follette off the ballot. His telegram said that election laws should not be designed in a manner to stifle political competition. He added, "I would apply this rule not only to your complaint about Louisiana, but to all the other states of the Union."

Louisiana only required 1,000 signatures, due in September, but the signers had to be registered outside of the two qualified parties.

Louisiana at the time was so overwhelmingly Democratic that there were barely even 1,000 voters registered independent or in any third party.

On October 27, 1976, President Gerald Ford held a press conference in Atlantic City, New Jersey. He was asked about independent presidential candidate Eugene McCarthy, who was in New York state court fighting to be listed on the ballot. Ford said, "I think the people of New York or elsewhere ought to have a chance to vote for him if they feel it is the right decision." Ironically, later that day, New York’s highest state court, the Court of Appeals, removed McCarthy from the ballot because his petition, which had enough valid signatures, was not bindered properly. The Court said the petition should have been organized so that it was easier to check to see if he had met the distribution requirement of 100 signatures in half of each of the U.S. House districts.

The Democratic Party has a long history of filing challenges to keep minor party and independent presidential candidates off various ballots. It did so in 1936, 1940, 1948, 1952, 1956, 1964, 1976, 1980, 2004, and 2020. Democratic presidential nominees in those years were Franklin D. Roosevelt, Harry Truman, Adlai Stevenson, Lyndon Johnson, Jimmy Carter, John Kerry, and Joe Biden.

Special thanks to Darcy Richardson for the extensive historical research needed for this story.

On October 26, U.S. District Court Judge Steve C. Jones, an Obama appointee, struck down Georgia’s
U.S. House, State Senate, and State House district boundaries. Alpha Phi Alpha Fraternity v Raffensperger, n.d.,1:21cv-05339. The judge determined that the districts violate the Voting Rights Act.

The Georgia petitioning period for U.S. House and legislature runs from January 11 to July 9. Under several federal court precedents from Georgia, when the normal petitioning period is not available to petitioners, the state must either extend the deadline or cut the number of signatures.

Judge Jones gave the state until December 8 to draw new districts. There must be one more majority-Black U.S. House district, two more such State Senate districts, and five more such State House districts.

If the legislature does not do that, the Judge will appoint experts to draw new districts.

The state is considered almost certain to appeal. Therefore, no one will know the district boundaries for certain until next year. After the 2000 census, Georgia districts weren’t settled until March 2002, so a U.S. District Court ordered the state to cut the number of signatures to two-thirds of the normal amount. A similar outcome is likely for the 2024 election.

A cut in the number of signatures of that magnitude might make it possible for a third party U.S. House candidate to qualify, which would be historic, because the normal petition is so difficult, no third party has ever been on the ballot for a Georgia U.S. House regular election. The last time an independent was on for a Georgia U.S. House seat was in 1982, when the petition was cut down to only 25% of normal, due to late redistricting. That candidate was Billy McKinney, father of Cynthia McKinney, Green Party presidential nominee in 2008.

The 2023 decision is 516 pages long, and was issued following a trial.

On October 2, the U.S. Supreme Court refused to hear Libertarian Party of New York v New York State Board of Elections, 22-893. This is the case in which the New York Libertarian and Green Parties had challenged the ballot access changes made in 2020. The number of signatures for a statewide independent, and the nominee of an unqualified party, was tripled to 45,000. The distribution requirement was made more difficult. But the six-week petitioning period was not expanded. Also the definition of a qualified party went from 50,000 votes for Governor, to 2% of the vote for the office at the top of the ballot (president and governor), an increase to approximately 170,000 votes in a presidential year.

Starting in 1992, the U.S. Supreme Court has refused to hear every case filed by a minor party or independent candidate under the First or Fourteenth Amendments, unless either the Democratic or Republican Party, or both of them, were also a party to the case.

During the same period, the Court did accept cases involving minor party or independent candidates, if the state had lost in the lower court and that state had asked for Supreme Court review. The Court always then reversed those lower court decisions, or remanded the case back to a lower court. This happened in cases involving access to candidate debates, fusion, political party control over their own primaries. and top-two primaries.

By its lopsided policy on whether to hear cases, the Supreme Court has done injury to voters who wish to vote for minor party or independent candidates. Thanks to Supreme Court inaction, Georgia has had a virtual Democratic-Republican monopoly in U.S. House races since 1942, and North Dakota has kept all minor party candidates for legislature off the ballot since 1976.

The Constitution protects all voters, but members of the U.S. Supreme Court have failed to protect a significant share of U.S. voters, those who wish to support minor parties and independent candidates. No member of the Court has ever cast any helpful vote.

The November 1, 2019 B.A.N. lists the meritorious cert petitions filed by minor party and independent candidates starting in 1992 that were refused. See the chart, "Supreme Court Refusals to Hear Ballot Access Cases, 1992-2019." Past print issues can be seen at ballot-access.org; the links to past print issues on the upper right side. Since that 2019 issue was published, the Court has refused to hear ballot access appeals from Georgia, Alabama, Minnesota, Ohio, Arizona, and California.

On October 2, the U.S. Supreme Court refused to hear Mazo v Way, 22-1033. This case did not concern minor party or independent candidates. Instead it challenged the law that sharply limits candidate slogans on primary ballots. The lower courts had upheld the restrictions, which say that if a candidate mentions a living person in his or her label, he must get written permission. Also if a corporation is mentioned, the corporation must give consent. If the Court had taken this case, it would have settled the extent to which the First Amendment’s Free Speech provisions relate to ballots.

On October 10, the U.S. Supreme Court refused to hear Blankenship v NBC , 22-1125. This was not an election law case, but it was filed by the Constitution Party’s presidential nominee in 2020, Don Blankenship, and concerned libel law.

On October 23, the Tenth Circuit upheld Wyoming’s 300-foot zone around polling places on election day. The zone is an area in which leafletting, displaying signs relating to candidates or issues, or petitioning is prohibited. Frank v Lee, 21-8060. The vote was 3-0. The judges were Veronica Rossman (Biden), Scott Matheson (Obama) and Jerome Holmes (Bush Jr.)

This part of the decision is damaging for petitioning. Petitioning at the polls is one of the best methods for petitioners, because often people standing in line are bored and willing to talk to a petitioner. Also virtually everyone is a registered voter.

The decision also considered the 100-foot zone around places in which absentee voting is going on. The lower court had upheld that, but the Tenth Circuit remanded it back to the lower court. Absentee voting occurs during the 45 days before election day.

The decision creates a circuit split, because the Sixth Circuit earlier had struck down Kentucky’s 300-foot zone. Kentucky then revised it to 100 feet.

In many states, there are lawsuits pending on whether former President Donald Trump should be on the ballot in Republican presidential primaries. Hearings are set in at least three cases:

Colorado: a state trial court will hear Anderson v Griswold, Denver District Court, 2023cv-32577, on October 30.

Michigan: the state Court of Claims will hear Davies v Benson, 23-128, on November 6.

Minnsota: the State Supreme Court will hear Growe v Simon, A23-1354, on November 2.

Only two states still haven’t settled the dates of their 2024 primaries. New Hampshire’s presidential primary is set by the Secretary of State, and he still hasn’t announced the date.

In Pennsylvania, current law sets the primary for all office on April 23, but that is the first day of Passover. The House amended SB 224 to provide for an April 16 primary, and in a few days the Senate may or may not pass that bill. Election officials are warning that it is too late for any changes.

Access for candidates running in Democratic and Republican presidential primaries and caucuses is becoming more difficult, as more state parties are imposing very large filing fees. The Republican Party of South Carolina originated this idea eight years ago. Parties can do this because in some states, the law does not allow anyone on a presidential primary ballot unless the party approves of the candidate.

This year, the Republican Party is charging $40,000 in Colorado, $50,000 in Idaho, $50,000 in South Carolina, and $20,000 in the U.S. Virgin Islands. Sometimes the party will waive half the fee if the candidate agrees to campaign at least once in that state during the presidential primary season.

The Democratic Party is charging $2,500 in North Dakota, $1,500 in Nevada, $20,000 in South Carolina, and $2,500 in Wyoming.

The U.S. Supreme Court ruled in both 1972 and 1974 that there must be an alternative to filing fees, at least for indigent candidates. In 1976 a U.S. District Court in Vermont said that this principle even applies to presidential primaries.

On October 3, the U.S. House voted to replace Speaker Kevin McCarthy. Eight Republican members of the House voted against McCarthy, leading to a weeks-long period in which the U.S. House had no speaker and thus couldn’t act on any other business.

Supporters of "open primaries" are constantly preaching that closed partisan primaries cause extremist politicians to be nominated and elected. However, seven of the eight Republicans who voted against McCarthy are from states in which independents are allowed to vote in Republican congressional primaries. They are Andy Biggs (Arizona), Ken Buck (Colorado), Tim Burchett (Tennessee), Eli Crane (Arizona), Bob Good (Virginia), Nancy Mace (South Carolina), and Matt Rosendale (Montana). The only Republican who voted against McCarthy and who is from a closed primary state is Matt Gaetz (Florida).

President Joe Biden, who is running for re-election, has said that he will not file to be on the ballot in the New Hampshire Democratic presidential primary. The national Democratic Party rules say that South Carolina should be the earliest Democratic presidential primary, but New Hampshire intends to have an earlier primary, so the national party does not recognize the legitimacy of the New Hampshire Democratic primary date.

However, the Biden campaign will seek write-in votes for him. In New Hampshire, write-ins are counted even if the candidate doesn’t file a declaration of candidacy.

The chart below shows the number of signatures to get a new party on the ballot for statewide office, in the year in which the requirements were easiest. It shows that 47 states, at one time in history, had a very easy method to get a new party on the ballot for statewide office with the party label.

The only states that never had an "easy" requirement are California, North Carolina, and South Carolina. "Easy" is defined as a petition that required no more than 2,100 signatures. In the few cases in which a state required a state convention with a minimum attendance, "easy" means 100 people or fewer.

Almost half the states once let a new party on the ballot if it merely held a state nominating convention, and certified its nominees to the state elections office.

Most people assume that high petition requirements for new parties are normal and traditional, but this chart shows that is a mistaken idea.

The chart makes the assumption that the key variable to determine if a petition is "easy" is not the percentage of signatures required, but the number of signatures. The empirical basis for this assumption is set forth in Richard Winger’s article in the November 2021 Fordham Law Journal, "How States Can Avoid Overcrowded Ballots but Still Protect Voter Choice."

On the chart, the column "Formula" explains the legal requirement, in the year in which it was easiest. The column "Law was in Effect" tells the years in which that statutory requirement was in effect. The left column headed "Year" tells the year in which the requirement was easiest. In case of ties, it shows the most recent such year.

THIS CHART SHOWS WHEN EACH STATE HAD SMALLEST SIGNATURE REQUIREMENT

State	Year	Number of Signatures	Formula	Law Was in Effect
Alabama	1982	Zero	just hold convention	1893-1971 and 1977-1982
Alaska	1952	Zero	just hold convention	1915-1953
Arizona	1912	66	2% of last vote any 5 counties	1909-1970
Arkansas	1970	Zero	Just hold convention	1891-1971
California	1896	8,537	3% of last vote cast	1893-1929
Colorado	1972	300	number stated in law	1963-1973
Conn.	1918	zero	just hold convention	1909-1919
Delaware	1912	75	25 signatures in each county	1891-1913
Florida	2014	Zero	File bylaws and list of officers	1999-2016
Georgia	1942	Zero	just hold convention	1922-1943
Hawaii	1968	Zero	file list of officers	1900-1970
Idaho	1918	Zero	just hold convention	1891-1919
Illinois	1930	Zero	just hold convention	1927-1931
Indiana	1980	500	number stated in law	1889-1933
Iowa	1960	Zero	Just hold convention	1925-1961
Kansas	1964	Zero	Just hold convention	1955-1965
Kentucky	1978	1,000	number stated in law	1892-1978
Louisiana	2023	(reg.) 1,000	number stated in law	2004-present day
Maine	1952	1,000	number stated in law	1891-1953
Maryland	1920	500	number stated in law	1890-1922
Mass.	1889	Zero	Just hold convention	1888-1890
Michigan	1938	Zero	Just hold convention	1891-1939
Minnesota	2022	2,000	number stated in law	1889-present day
Miss.	2023	Zero	file list of officers	1890-present day
Missouri	1952	Zero	just hold convention	1909-1953
Montana	1968	Zero	just hold convention	1889-1969
Nebraska	1896	500	number stated in law	1891-1897
Nevada	1892	371	3% of last vote cast	1891-1893
N.Hamp.	1896	500	number stated in law	1891-1897
N Jersey	2021	800	number stated in law	1890-present day
N Mexico	1968	Zero	just hold convention	1917-1969
New York	1890	1,000	number stated in law	1890-1891
No. Car.	1982	5,000	number stated in law	1981-1983
No. Dak.	1892	Zero	just hold convention	1891-1893
Ohio	1891	500	number stated in law	1891-1892
Oklahoma	1912	Zero	file list of officers	1910-1913
Oregon	1934	100 attendees	number stated in law	1891-1905 & 1926-1935
Pennsyl.	1912	2,064	One-half of 1% of winner vote	1891-1971
Rhode Is.	1974	500	number stated in law	1889-1976
So. Car.	2022	10,000	number stated in law	1950-present day
So. Dak.	1928	Zero	Just hold convention	1891-1929
Tennessee	1960	Zero	just hold convention	1889-1961
Texas	1966	Zero	just hold convention	1903-1967
Utah	1996	500	number stated in law	1939-1997
Vermont	2022	20	number stated in law	1977-present day
Virginia	1934	2	number stated in law	1894-1936
Wash.	1936	Zero	just hold convention	1890-1937
W. Va.	1932	1,000	number stated in law	1891-1932
Wisconsin	1936	1,000	number stated in law	1889-1937
Wyoming	1896	Zero	just hold convention	1890-1961

State	Requirements		SIgnatures or Registrations Obtained
	Full Party	Candidate	Libert.	Green	Const.	RFK	No Lab.
Ala.	42,353	5,000	0	0	0	0	finished	Aug. 15
Alaska	(reg) 5,000	3,614	already on	*finished	already on	0	already on	Aug. 7
Ariz.	34,116	(es) #43,000	already on	*52,000	0	0	already on	Sept. 6
Ark.	10,000	5,000	*finished	already on	0	0	already on	Aug. 1
Calif.	(reg) (es) 75,000	219,403	already on	already on	156	0	*35,000	Aug. 9
Colo.	10,000	12,000	already on	already on	already on	0	already on	Aug. 7
Conn.	no procedure	#7,500	already on	can’t start	can’t start	can’t start	can’t start	Aug. 7
Del.	(est.) (reg) 760	(est.) 7,600	already on	*727	*242	0	*15	Aug. 20
D.C.	no procedure	(est.) #5,200	can’t start	already on	can’t start	can’t start	can’t start	Aug. 7
Florida	0	145,040	already on	already on	already on	0	already on	Sept. 1
Georgia	69,884	#7,500	already on	can’t start	can’t start	can’t start	can’t start	July 9
Hawaii	861	5,745	already on	*500	*0	0	0	Aug. 7
Idaho	17,359	1,000	already on	0	already on	0	*0	Aug. 30
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	can’t start	June 24
Indiana	no procedure	#36,944	already on	0	0	0	0	July 1
Iowa	no procedure	#3,500	already on	0	0	0	0	Aug. 16
Kansas	19,890	5,000	already on	0	0	0	finished	Aug. 5
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Sept. 6
La.	(reg) 1,000	#pay fee	already on	already on	221	0	0	Aug. 23
Maine	(reg) 5,000	#4,000	(rg) **3,400	already on	0	0	already on	Aug. 1
Md.	10,000	10,000	already on	*1,600	0	0	0	Aug. 5
Mass.	(est) (reg) 49,000	#10,000	already on	(reg) 3,991	(reg) 330	0	0	July 30
Mich.	44,478	30,000	already on	already on	already on	0	0	July 18
Minn.	(est) 130,000	#2,000	0	0	0	0	0	Aug. 20
Miss.	be organized	1,000	already on	already on	already on	0	*already on	Sept. 6
Mo.	10,000	10,000	already on	*5,000	*1,200	0	0	July 29
Mont.	5,000	#5,000	already on	*already on	0	0	0	Aug. 14
Nebr.	6,605	2,500	already on	0	0	0	0	Aug. 1
Nev.	10,096	10,096	already on	*4,000	already on	0	already on	July 5
N. Hamp.	18,575	#3,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 7
N.J.	no procedure	#800	0	0	0	0	0	July 29
N. M.	3,562	3,562	already on	already on	0	0	0	June 27
N.Y.	no procedure	#45,000	can’t start	can’t start	can’t start	0	can’t start	May 28
No. Car.	13,757	82,542	already on	already on	*17,000	0	already on	May 18
No. Dak.	7,000	4,000	*4,200	0	0	0	0	Sept. 2
Ohio	40,345	5,000	750	0	0	0	finished	Aug. 7
Okla.	35,592	pay fee	already on	0	0	0	0	July 15
Oregon	28,576	23,737	already on	already on	already on	already on	0	Aug. 27
Penn.	no procedure	5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 1
R.I.	17,884	#1,000	0	0	0	0	0	Sept. 6
So. Car.	10,000	10,000	already on	already on	already on	already on	finished	July 15
So. Dak.	3,502	3,502	already on	*4,000	0	0	already on	Aug. 6
Tenn.	56,083	275	0	0	0	0	0	Aug. 20
Texas	80,778	113,151	already on	already on	*can’t start	can’t start	can’t start	May 19
Utah	2,000	#1,000	already on	*150	already on	0	already on	Jan. 6
Vermont	be organized	#1,000	already on	0	0	0	0	Aug. 1
Virginia	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 23
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	can’t start	can’t start	July 27
West Va.	no procedure	#7,948	already on	already on	0	0	0	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	can’t start	can’t start	Aug. 6
Wyo.	3,879	3,879	already on	0	already on	0	0	Aug. 27
TOTAL STATES ON			34	17	12	0	*12	~

#partisan label permitted. "RFK Jr" = Robert F. Kennedy, Jr. "Deadline" column shows the deadline for the latest way to get on.

**The Maine Libertarian figure indicates the number of registrations believed to be valid, not the raw number obtained.. * means entry changed since last issue.

On September 29, the news broke that Robert F. Kennedy, Jr., would drop out of the race for the Democratic presidential nomination, and would run as an independent. He made a formal announcement on October 9. He will probably start petitioning as soon as he chooses a vice-presidential running mate.

Others who dropped out of a major party race and ran outside the two major parties have been John Anderson in 1980, Pat Buchanan in 2000, and Gary Johnson in 2012.

During October, the Forward Party became ballot-qualified in South Carolina and Utah. In South Carolina, it did not need a petition. Instead, it persuaded the Independence Party to change its name to the Forward Party, and the two parties merged. The Forward Party had previously qualified in Florida. It got on in Utah with a petition.

On October 20-22, the Socialist Party USA held an on-line national convention and nominated Bill Stodden for president and Stephanie Cholensky for vice-president. Stodden lives in Iowa and Cholensky lives in Minnesota. Approximately 30 delegates participated.

This is the first presidential ticket for the Socialist Party since 2016, when it ran Emidio "Mimi" Soltysik, who received 2,693 votes. In 2020 it endorsed the Green Party candidate, Howie Hawkins, who ran with a running-mate from the Socialist Party.

If the party regains its qualified status in Florida, by filing a list of officers and bylaws, it will be on automatically for president because the Federal Election Commission recognizes it as a national committee.

On October 5, Professor Cornel West said he will no longer seek the Green Party presidential nomination, and will run as an independent candidate. He indicated that he found the process of seeking the Green nomination to be more arduous than he had expected. But he thanked the Green Party and as a courtesy, he will continue funding their Arizona petition drive.

If he had stayed with the Green Party and won its nomination, he and the party would only have needed approximately 225,000 valid signatures to be on the ballot in all 51 jurisdictions.

Louisiana held its state election on October 14. Only two minor parties had any candidates. The Independent Party had two candidates for Governor, who jointly polled 8,590 votes, .81%. The party’s Lieutenant Governor candidate received 17,195 votes, 1.66%. The party’s two State Senate candidates polled 3,496 votes; the party’s two House candidates polled 3,409 votes.

In the last election, in 2019, the party had polled 10,084 votes for Governor, 6,593 for its sole State Senate candidate, and 12,774 votes for its five State House candidates. One of the party’s House candidates, Roy Daryl Adams, won. However, he did not run for re-election in 2023.

The sole 2023 Libertarian candidate ran for State Senate and got 772 votes, 8.57% in a three-way race.

On October 19, Pew Research released a poll that asked voters if they wish there were more parties. Those in the youngest age group, the 20-29-year-olds, showed 79% support for more parties. In the oldest age group, over 65, only 51% wanted more parties.