NEW YORK INJURES BALLOT ACCESS

INDEPENDENT PETITION DEADLINE MOVED FROM AUGUST TO MAY

On January 14, the New York legislature passed A779, which moves the petition deadline for independent candidates, and the nominees of unqualified parties, from August to May, for all office, even President. Governor Andrew Cuomo signed the bill on January 24.

The old deadline was eleven weeks before the general election, which would have been August 18 in 2020. The new deadline, 23 weeks before the general election, is May 26, 2020.

A779 was introduced on January 10 and had passed both houses of the legislature by January 14. There was no time to educate the members of the legislature about the petition deadline problem.

New York has always before had a late petition deadline. From 1922 to 1977 it was 28 days before the election. Between 1977 and 1985 it was 49 days. In 1985 it went to 77 days before the election, and now, in an extreme deliberalization, it is 161 days before the general election.

Such an early deadline violates the U.S. Supreme Court decision Anderson v Celebrezze, 460 U.S. 780 (1983). That decision says that throughout history, minor party and independent presidential candidates have arisen in the late spring and early summer of election years. It says that the First Amendment requires that states permit such candidacies to arise, after it is clear whom the major parties have nominated.

New York’s new deadline gives the state the third earliest deadline for president in the nation, if each state’s latest procedure (new party or independent) is compared. See the chart on page three which lists the deadlines of all states.

There are still four states that have deadlines in September, which makes a mockery of any claim that New York needs a May deadline. A majority of states have August deadlines, for President.

Early petition deadlines for minor party and independent candidates have been struck down, or enjoined, in Alabama, Alaska, Arizona, Arkansas, California, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, and Utah.

Significant presidential candidates who ran outside the major parties and who didn’t declare until a date later than May 26 are: Theodore Roosevelt in 1912, Robert La Follette in 1924, Parley P. Christensen in 1920, William Lemke in 1936, Strom Thurmond in 1948, John G. Schmitz in 1972, and Evan McMullin in 2016.

On July 25, 2000, the U.S. State Department criticized Azerbaijan’s new electoral law because it barred parties from the ballot unless they had been formed at least six months before any election. But now New York state has done what Azerbaijan had done.

The purpose of A779 was to move the primary for state and local office from September to June. However, there was no need for the bill to have moved the independent petition deadline. New York had had a June primary from 1956 through 1972, yet during those years, the New York petition deadline was in early October.

New York is in the Second Circuit. There are no precedents on the constitutionality of early petition deadlines in the Second Circuit, because no state in the Second Circuit has ever had an unreasonably early deadline. The only three states in the Second Circuit are Connecticut, Vermont, and New York. Until now, none of those states has had a petition deadline earlier than August.

On January 24, the Libertarian Party sued Alabama over access to the list of registered voters. Alabama gives the list free to qualified parties, but charges approximately $34,000 for an unqualified party. The list is very helpful to any party that must petition for a place on the ballot. The case is Libertarian Party of Alabama v Merrill,m.d., 1:18cv-3988.The petition for 2020 for new parties and statewide non-presidential independent candidates is 51,588 signatures. The case is assigned to U.S. District Court Judge

In 1970, the U.S. Supreme Court summarily affirmed a decision of a 3-judge U.S. District Court in Socialist Workers v Rockefeller. The lower court ruled that if a state gives the list free to the qualified parties, it must also give the list free to parties that are petitioning to get on the ballot. The summary affirmance means that the U.S. Supreme Court agrees, and therefore the ruling is binding on the entire nation.

Similar cases, filed by minor parties or independent candidates, have won in federal and state courts in Arizona, California, Indiana, Iowa, Michigan, New Hampshire, and Oregon.

Alaska: Representative Ivy Spohnholz (D-Anchorage) will introduce a bill to ease the definition of "political party", from a group with registered members equal to 3% of the last vote cast (which is now approximately 8,000) to exactly 5,000. Currently the only parties on the ballot are Democratic, Republican, and Alaskan Independence. If the bill were to pass, the Libertarian Party would also be on.

Arkansas: on January 23, the House State Agencies & Governmental Affairs Committee passed HB 1152. It changes the non-presidential independent deadline form March 1 to May 1.

Georgia: Representative Dar’shun Kendrick (D-Lithonia) will introduce a bill to drastically reduce the petition requirements for independent candidates and new parties. She has found a Republican co-sponsor.

Hawaii: the leaders of each house of the legislature, Senate President Ron Kouchi and House Speaker Scott Saiki, have introduced bills to repeal the requirement that petition signers must show the last four digits of their Social Security number. The bills are SB 135 and HB 167.

Indiana: Senator Greg Walker (D-Columbus) has introduced SB 571. It cuts the number of signatures for statewide independent candidates, and the nominees of unqualified parties, from 2% of the last vote for Secretary of State (now 44,935 signatures) to exactly 4,500.

Kansas: the Green Party has found some legislators who will introduce a bill to lower the petition for a new party from 2% of the last gubernatorial vote, to 1%. The Green Party has never been on the ballot in Kansas.

Nebraska: Senator Justin Wayne (D-Omaha) has introduced LD 98, to cut the number of signatures for statewide non-presidential independent candidates from 10% of the number of registered voters, to exactly 4,000 signatures.

New Mexico: Representative Bill Pratt (D-Albuquerque) is about to introduced a bill to cut the number of signatures for independent candidates from 3% of the last gubernatorial vote, to something smaller.

Oklahoma: Representative Tamy West (R-Putnam) has introduced HB 2525, which cuts the number of signatures for the petition in lieu of the filing fee from 2% of the registered voters, to a formula in which each dollar of the filing fee equals one signature. This would be a large reduction in the number of signatures for statewide office. Governor would decline from 42,000 to 2,000; U.S. House from 8,000 to 1,000.

West Virginia: Delegate Larry D. Kump (R-Falling Waters) has introduced HB 2456, which makes it easier for a party to become qualified and remain qualified. If a group has at least 5,000 registered members, it becomes a qualified party; if it is already a qualified party and has that many members, it remains qualified. Currently there is no procedure for a group to become a qualified party in advance of any particular election. Instead unqualified parties submit candidate petitions, and if their gubernatorial nominee polls 1%, they become qualified.

West Virginia(2): Delegate Pat McGeehan has introduced HB 2169. It contains the same proposal as HB 2456, but it also says that the 1% vote test applies to any statewide state office, not just Governor.

On January 8, a U.S. District Court denied the attempt by the Montana Secretary of State to dismiss the Green Party’s ballot access lawsuit. The party is challenging the March 15 petition deadline, and the odd distribution requirement that requires three times as much support in some legislative districts as in other districts. Montana Green Party v Stapleton, 6:18cv-87. The case will now proceed to a trial.

On December 27, the Maryland Libertarian Party filed a lawsuit to prevent the state from removing it from the ballot. The party has over 22,000 registered voters, but it went off the ballot because it did not poll as much as 1% for Governor last year. The law requires it to submit a petition of 10,000 names to get back on the ballot. The party argues that the petition has no purpose, because if over 22,000 people choose to be registered in the party, obviously there are at least 10,000 voters who want it on the ballot. Johnston v Lamone, 1:18cv-3988. The case is assigned to U.S. District Court Judge Catherine Blake, a Clinton appointee. A decision is likely quite soon.

On January 9, the Fourth Circuit agreed with a U.S. District Court that a Virginia law, letting an office-holder decide how his or her party should nominate, violates Freedom of Association. Generally Virginia lets all qualified parties decide whether to nominate by primary or convention. Parties can use one method for some races and the other method for others. But the law also says that if the party has an office-holder who is running for re-election, the office-holder can tell the party which method to use. Sixth Congressional District Republican Committee v Alcorn, 18-1111.

On January 23, the Delaware House Administration Committee passed HB 41. It moves the primary from September to the fourth Tuesday in April. The bill would have the effect of moving the deadline for a new party to get on the ballot from August to early April. Delaware is in the Third Circuit, which ruled in 1997 in a New Jersey case that April is too early for new party deadlines. Council of Alternate Political Parties v Hooks, 121 F.3d 876.

State	Deadline	Code Reference	Formula for Date
Az.	September 4	16-341.G	60 days before general election
Ky.	September 4	118.365	Friday after 1st Tuesday in Sept.
Miss.	September 4	23-15-785(2)	60 days before general election
R.I.	September 4	17-14-11	60 days before general election
Id.	August 31	34-501(c)(D)	date named in law
N.D.	August 31	16.1-12-04	64 days before general election
Del.	August 25	Title 15, sec. 3001	21 days before primary election
Ore	August 25	249.722(1)	70 days before general election
Wy.	August 25	22-5-307	70 days before general election
La.	August 21	Title 18, sec. 1255	Friday after 3rd Tuesday in August
Va.	August 21	24.2-543	74 days before general election
Minn.	August 18	204B.09	77 days before general election
Tn.	August 18	2-5-101	3rd Tuesday in 3rd month before gen. election
Utah	August 17	20A-9-503(3)(b)(i)	date named in law (adjusted for weekend)
Iowa	August 14	44.4	81 days before general election
Ala.	August 13	17-14-31	82 days before general election
Mt.	August 12	13-10-504	83 days before general election
Cal.	August 7	Elec. code 8403(a)(1)	88 days before general election
Alas.	August 5	15.30.026	90 days before general election
Colo.	August 5	1-4-303(1)	90 days before general election
Ct.	August 5	Ch. 153, sec. 9-453i	90 days before general election
D.C.	August 5	1-1312(j)	90 days before general election
Hi.	August 5	Tit. 2, sec. 11-113(c)(2)	90 days before general election
N.H.	August 5	655:43, 655:41	34 days before primary election
Ohio	August 5	3513.257	90 days before general election
S.D.	August 4	12-7-7	first Tuesday in August
Wis.	August 4	8.20(8)	first Tuesday in August
Ark.	August 3	7-8-302	date named in law (adjusted for weekend)
Ks.	August 3	25-305	day before primary election
Me.	August 3	Tit. 21A, sec. 354.8	date named in law (adjusted for weekend)
Md.	August 3	Art. 33, sec. 5-703(f)	first Monday in August
Neb.	August 3	32-620	date named in law (adjusted for weekend)
Pa.	August 3	settlement, Libt Pty v Davis, 1984	date named in settlement (adj. for weekend)
Vt.	August 3	Title 17, sec. 2402	date named in law (adjusted for weekend)
W.V.	August 3	3-5-24	date named in law (adjusted for weekend)
Mass.	July 28	Ch. 53: sections 7 and 10	14 weeks before general election
Mo.	July 27	115.329	15th Monday before general election
N.J.	July 27	19:13-9	99 days before general election
Wa.	July 25	29A.20.121(2)	fourth Saturday in July
Mich.	July 16	168.685	110 days before general election
Fla.	July 15	103.021(3)	date named in law
Ok.	July 15	10-101.1	date named in law
S.C.	July 15	7-13-351	date named in law
Ga.	July 14	21-2-132	second Tuesday in July
Nev.	July 10	298.109	25 work days bef. 2nd Fri. in August
Ind.	June 30	3-8-6-10(b)	date named in law
N.M.	June 25	1-8-52.B	23 days after primary election
Ill.	June 22	10 ILCS 5/10-6	134 days before general election
N.Y.	May 26	Elec. code 6-158.9	23 weeks before general election
N.C.	May 18	163A-950	15 days before June 1
Tex.	May 18	181.005(e), 181.061(c)	75 days after primary

This chart accompanies the article about the recent change in the New York state deadline. It shows that New York now has the third earliest deadline for presidential candidates running outside the major parties.

~	Libertaran	WkFam	Green	Indpdc	Consti	Ind Pty	oth(1)	oth(2)	indep
Alab.	0	0	0	0	0	0	0	0	32,555
Alas.	0	0	0	0	0	0	0	0	6,803
Ariz.	0 0	0	1,076	0	0	0	0	0	48,212
Ark.	19,895	0	0	0	0	0	0	0	0
Cal.	0	0	0	0	0	0	0	0	181,191
Colo.	23,898	0	0	0	0	0	0	0	11,484
Conn.	0	19,966	1,077	0	0	26,513	0	0	0
Del	0	0	0	0	0	0	0	0	0
Fla.	5,514	0	0	0	0	0	0	0	4,319
Ga.	0	0	0	0	0	0	0	0	0
Hi.	4,565	0	4,379	0	0	0	0	0	0
Ida.	1,678	0	0	0	1,265	0	0	0	4,510
Ill.	0	0	0	0	0	0	32,549	0	0
Ind.	4,696	0	0	0	0	0	0	0	0
Iowa	11,839	0	0	0	0	0	0	0	0
Ky.	0	0	0	0	0	0	0	0	10.946
Me.	0	0	0	0	0	0	1,124	0	4,975
Md.	9,091	0	16,426	0	0	0	0	0	12,231
Mass.	0	0	0	0	0	0	0	0	20,031
Mich.	43,629	0	11,601	0	4,344	0	10,438	0	0
Mo.	5,311	0	2,117	0	0	0	0	0	0
Mont.	2,292	0	0	0	0	0	0	0	4,274
Neb.	6,299	0	0	0	0	0	0	0	0
Nev.	1,078	0	0	0	13,634	0	0	0	0
N.H	1,461	0	0	0	0	0	0	0	0
N.Y.	0	145,208	10,539	156,527	0	0	248,141	54,403	1,040
No.C.	33,219	0	0	0	1,301	0	0	0	0
No.D.	0	0	0	0	0	0	0	0	1,392
Ohio	4,037	0	3,041	0	0	0	0	0	0
Okla.	0	0	0	0	0	0	0	0	9,493
Ore.	4,126	0	0	0	10,637	0	0	0	0
Pa.	1,251	0	14,467	0	0	0	0	0	0
R.I.	0	0	0	0	0	0	0	0	8,898
So.D.	2,134	0	0	0	0	0	0	0	5,996
Tenn.	0	0	0	0	0	0	0	0	9,756
Tex.	67,062	0	0	0	0	0	0	0	0
Utah	2,095	0	1,225	0	0	0	18,060	2,738	0
Vt.	8,753	0	0	0	0	0	45,410	1,422	30,380
Wa.	9,707	0	0	0	0	0	0	0	13,538
W.V.	0	0	0	0	0	0	0	0	14,567
Wis.	0	0	1,776	0	0	0	0	0	0
Wyo.	0	0	0	0	0	0	0	0	889
TOT.	273,630	165,174	67,724	156,527	31,181	26,513	302,653	58,563	437,480

Parties in the "Oth(1)" column are: Downstate United (Illinois), Socialist (Maine), Working Class (Michigan), Conservative (New York), United Utah (Utah), Progressive (Vermont).

Parties in the "Oth(2)" column are: in New York: Women’s Equality 29,041; Reform 25,362. In Utah, Independent American. In Vermont, Liberty Union.

"Indpdc" = Independence Party; "Wk Fam" = Working Families; "Ind Party" = Independent Party; "Consti" = Constitution. States not named had no regularly-scheduled state senate elections in 2018.

In 2014, when these same seats were up, Libertarians received 328,020 votes; Conservative 263,225; independents 251,674; Independence 195,338; Working Families 169,927; Green 58,416; Independent Parties 22,064; Constitution 35,737; Americans Elect 7,494; .Stop Common Core 5,200; Women’s Equality 3,409; Liberty Union 1,807; Tax Revolt 930.

Kansas, Minnesota, New Mexico, and South Carolina don’t elect State Senators in midterm years.

~	Libertaran	Wk Fam	Green	Indpdc	Consti	Ind Pty	oth(1)	oth(2)	independent
Alab.	2,236	0	0	0	0	0	0	0	9,252
Alas.	2,274	0	0	0	0	0	0	0	16,024
Ariz.	21	0	36,562	0	0	0	0	0	0
Ark.	8,687	0	0	0	0	0	0	0	2,800
Cal.	145,514	0	0	0	0	0	0	0	63,272
Colo.	17,153	0	0	0	0	0	874	0	46,447
Conn.	1,692	21,246	977	0	0	23,449	0	0	530
Del	2,759	0	0	0	0	0	0	0	0
Fla.	5,381	0	4,622	0	0	0	0	0	81,720
Ga.	0	0	0	0	0	0	0	0	4,595
Hi.	3,369	0	3,469	0	0	0	0	0	0
Ida.	558	0	0	0	3,696	0	0	0	6,528
Ill.	0	0	0	0	0	0	0	0	0
Ind.	10,132	0	0	0	0	0	0	0	528
Iowa	11,756	0	0	0	0	0	0	0	5,448
Kan.	8,533	0	0	0	0	0	0	0	0
Ky.	907	0	0	0	0	0	0	0	3,626
Me.	195	0	2,365	0	0	0	0	0	24,233
Md.	2,951	0	50,320	0	0	0	0	0	6,472
Mass.	0	0	6,813	0	0	0	0	0	41,483
Mich.	14,931	0	2,233	0	398	0	0	0	1,425
Minn.	1,067	0	0	0	0	0	0	0	8,184
Mo.	15,896	0	2,757	0	406	0	0	0	853
Mont.	10,846	0	0	0	0	0	0	0	3,849
Nev.	1,746	0	0	0	1,876	0	0	0	2,905
N.H	8,349	0	0	0	0	0	0	0	2,099
N.M.	7,753	0	0	0	0	0	0	0	7,195
N.Y.	3,958	156,068	6,211	93,835	0	0	235,807	51,811	341
No.C.	22,074	0	565	0	2,264	0	0	0	22,288
No.D.	0	0	0	0	0	0	0	0	0
Ohio	16,928	0	2,906	0	0	0	0	0	0
Okla.	2,519	0	0	0	0	0	0	0	5,565
Ore.	23,991	5,560	0	0	0	18,607	0	0	0
Pa.	8,214	0	6,849	0	0	0	0	0	11,140
R.I.	3,399	0	0	0	0	0	958	0	15,404
So.C.	13,064	3,176	0	1,648	0	0	4,294	3,611	0
So.D.	2,902	0	0	0	0	0	0	0	7,106
Tenn.	5,448	0	0	0	0	0	0	0	16,597
Tex.	64,219	0	0	0	0	0	0	0	11,995
Utah	13,684	0	859	0	3,456	0	20,591	6,338	4,528
Vt.	0	0	0	0	0	0	18,932	385	20,053
Wa.	42,314	0	0	0	0	0	0	0	113,037
W.V.	6,153	0	3,374	0	0	0	942	0	15,499
Wis.	19,480	0	0	0	4,441	0	0	0	13,019
Wyo.	1,592	0	0	0	0	0	0	0	5,931
TOT.	534,645	186,050	186,050	95,483	16,537	16,537	282,398	62,145	601,971

Parties in the "Oth(1)" column are: Unity (Co.), Conservative (N.Y.), Moderate (R.I.), American (S.C.), United Utah (Utah); Progressive (Vt.); American Freedom (W.Va.).

Parties in the "Oth(2)" column are: in New York, 28,392 Reform and 23,419 Women’s Equality; United Citizens (So.C.), Independent American (Utah), Green Mountain (Vt.).

If a state has multi-member seats, and the party has more than one candidate in that district, only the vote for the top vote-getter for that party in that district is included.

In 2014, when these same seats were up, independent candidates received 410,118 votes; Libertarians 542,570; Greens 52,509; Working Families 167,797; Constitution 54,961.

During January 2019, two Republican state legislators switched to the Democratic Party. They are Maine Representative Don Marean, who switched on January 3, and California Assemblymember Brian Maienschein, who switched on January 24. Both had been re-elected in November 2018 as Republicans.

On January 18, the Maryland State Board of Elections said the Bread and Roses Party has enough valid signatures to be a qualified party. It can nominate by convention in 2020 and 2022, with no more petitioning. The petition needed 10,000 signatures. The party name reflects a very old socialist slogan. No other state has ever had a ballot-qualified party with that name.

In November 2018, the Libertarian Party had nominees for state legislature on the ballot in all but five states (excluding the states that don’t elect legislators in even years). No other party, other than the Democratic and Republican Party, has done that since 1916. The five states without Libertarian legislative candidates on the ballot last year were Arizona, Georgia, Illinois, Massachusetts, and North Dakota.

The Libertarian Party previous best showing was in 2000, when it only missed six states. All of the 2018 Libertarians had the party name on the ballot, except that in Tennessee the candidates were on as "independent."

The January 1, 2019 BAN had a chart showing the vote for U.S. House by party. It accidentally omitted the Green Party vote for U.S. House in Oregon, which was 10,758. The national Green total thus becomes 235,677.

The New York Independence Party has been ballot-qualified since 1994. Recently, bills have been introduced in both houses of the New York legislature to ban any party from using the words "independent" or "independence" in their names. The Assembly bill, AB 2600, has 14 sponsors, all Democrats. The Senate bill, SB 1628, has two Democratic sponsors. Although the Independence Party cross-nominates many Democratic nominees for statewide office, it helped Republicans in virtually all the close State Senate races in 2018. But Democrats still won control of the Senate.

The last B.A.N. reported that Jill Stein had won the part of her Pennsylvania recount lawsuit concerning vote-counting machines, and as a result Pennsylvania will switch to machines that have a paper audit trail. Then, on January 11, she also won a victory in state court in Wisconsin, in conjunction with the Wisconsin Elections Commission. The court ruled that the Elections Commission was permitted to sign a contract with Stein that lets her experts criticize the voting machine vendor’s software, after those experts have seen it. The vendor had sued, arguing that Stein’s experts must not express any public opinion about the software. Elections Systems & Software v Election Commission, Dane County, 18-cv-972.

During latter January, many news sources have reported that Starbucks CEO Howard Schultz is pondering whether to run for president as an independent in 2020. There are also news stories in which prominent Democrats are quoted as urging him not to do so.