Law professor Jerry H. Goldfeder, the acknowledged expert on New York election law, has published this article about New York’s continuing habit of disqualifying candidate petitions for trivial reasons. This has been a problem in New York state for almost a century. Goldfeder suggests that New York institute candidate filing fees as a substitute for petitions, or to use campaign finance data as a substitute for a petition.
The Eleventh Circuit has posted the audio of the December 17 oral argument in the Georgia ballot access case. Listen to it here. It is 39 minutes. Scroll down to Cowen v Raffensperger.
Judge Pryor suggested that possibly the Georgia 5% petition requirement currently is more severe in reality than it was in 1971, because in 1971 there were no federal contribution limits on donations to petitioning candidates for Congress. He asked both sides about that. The requirement had been upheld by the U.S. Supreme Court in 1971.
Judge Grant said that perhaps the fact that an independent petition that succeeded in 2020 shows the 5% requirement is not too burdensome. She was referring to Keith Higgins, who was running for District Attorney in the Brunswick Judicial Circuit. But he only needed 3,526 signatures, whereas the U.S. House petition is usually about 25,000. A federal court in 2020 had reduced the independent petition requirement to 70% of the normal 5%, due to covid. Without that ruling, Higgins would have needed 5,038 signatures. He submitted 8,500 raw signatures.
Judge Hull asked the state if Wayne Parker, the Libertarian who tried hardest to get on the ballot for U.S. House, was a “reasonably diligent candidate”. He spent $40,000 in 2002, and hired 35 circulators. He submitted 20,000 signatures. In that year, the petition requirement was only 3% because the petitioning period was shorter, due to late redistricting. He needed 9,000 valid and the state said only 8,000 were valid, so he didn’t get on the ballot. The state’s attorney refused to admit that Parker was a diligent candidate. Judge Hull asked if Parker would have been considered a diligent candidate if he had spent $1,000,000, and the state’s attorney said, in that case, yes, he would have been a diligent candidate.
The most disturbing aspect of the hearing was that one or two judges seemed to feel the state has a “compelling interest” in keeping candidates off the ballot who are not reasonably diligent. The U.S. Supreme Court has never said that, and one wonders what that compelling interest would be. The U.S. Supreme Court has said several times that parties that are too weak to win still belong on ballots. For instance, in Williams v Rhodes, in 1968, the Court said, “To grant the state power to keep all political parties off the ballot until they have enough members to win would stifle the growth of all new parties working to increase their strength from year to year.”
U.S. District Court Judge John Koeltl will hear Libertarian Party of New York v New York State Board of Elections, 1:20cv-5820, on Tuesday, December 21. This is the challenge to the 2020 ballot access changes in New York, which moved the statewide independent petition, and the petition for the nominees of unqualified parties, from 15,000 signatures to 45,000. It also changed the definition of a party from one that polled 50,000 votes for Governor, to one that polled 2% for the office at the top of the ballot in the last election.
At the hearing, attorneys for the state will try to persuade the judge to uphold the laws, without benefit of a trial. They will argue that the constitutionality of the new laws are so clear, no more evidence is needed. The state’s briefs in this case so far have many factual errors. Their expert submitted a report on the independent candidate laws of every state, but he neglected to mention that 39 states have separate laws on how new parties may qualify. That is why the state’s expert said that, in California, the petitioning period is only 105 days. He ignored the fact that the procedure for a new party to get on the ballot may take as long as the activists need, even years. For example, the California Libertarian Party took seven years to accumulate enough registered voters to qualify for the ballot, between 1972 and 1979.
The state’s expert also made factual errors even concerning each state’s independent petition period. For example, he said that Oregon has a short window to collect independent candidate signatures. Actually Oregon allows an unlimited amount of time to collect independent signatures. The state’s expert confused the concept of a start date for petitioning, with the earliest date on which an independent petition can be submitted.
During the period 1970 through 2020, Georgia has only had one person on the ballot for a regularly-scheduled U.S. House election who was not a Democratic or Republican nominee. He was Billy McKinney. He got on in 1982, not because he did the 5% petition that has been in place since 1943, but because a court cut the requirement down to 1.3% in 1982 due to late redistricting.
In that same half-century, every other state has had at least 13 minor party or independent candidates on the ballot for U.S. House. The state with only 13 is West Virginia, which had very restrictive ballot access before 2009. Of course West Virginia only has three districts, whereas Georgia has fourteen.
There have been 7,725 instances in the nation when a minor party or independent candidate was on the ballot for U.S. House in a regular election, for the period 1970-2020. Minor party and independent candidates for U.S. House are a regular feature of political life in the U.S. Georgia stands completely outside this tradition.
Some commenters to this website seem very interested in the accuracy of official election returns. Forty-two states have procedures for post-election audits. The National Association of Secretaries of State issued this report in September 2021, describing each state’s law on post-election audits.
The states that don’t seem to have such laws are Alabama, Idaho, Louisiana, Maine, Mississippi, New Hampshire, South Carolina, and South Dakota.
