On November 5, New York state filed this brief in Libertarian Party of New York v New York State Board of Elections, 21-1464. This is the lawsuit over the new definition of a New York qualified party, and the new number of petitions for statewide independent candidates and the nominees of unqualified parties. The vote test for party qualification rose from 50,000 votes for Governor, to 2% for both president and Governor, which is now 172,364 votes. The statewide petition rose from 15,000 to 45,000. Both changes were made in April 2020. As a result, no statewide independent petitions in New York succeeded in 2020, and in November 2020 the Libertarian, Green, Independence, and SAM Parties lost their qualified status.

The state’s brief fails to engage the most important point in the case. New York claims the increases were due to the need to preserve the state from spending too much for its new public funding program for state office. But the Second Circuit already ruled in 2010 in Green Party of Connecticut v Garfield that states with public funding for candidates don’t need to treat all candidates equally, and states can make it far easier for candidates who are members of parties that polled 10% or 20% of the vote in the last election to get public funding, than other candidates. The state’s brief simply doesn’t mention that point. The Table of Contents to the state’s brief mentions the Connecticut case on two pages, but those pages don’t discuss the holding of the case.

The state also claims that it had to increase the requirements because New York ballots are confusing and having fewer candidates makes the ballots less confusing. But the state fails to recognize the point that New York’s bad ballot design is to blame for the confusion, and that 45 other states have cured the problem by switching to office-group ballots, which are not confusing.

The state also claims the higher requirements are necessary because the state has grown so much since the 50,000-vote test was set in 1936. On four pages, the state mentions that the number of registered voters is 2.5 times as high as it was in 1935. But the state never mentions that the number of votes cast in the state has not risen nearly so much. The 1936 presidential vote in New York state was 5,596,399; in 2020 it was 8,618,194. It increased by 54%, but the vote test has more than tripled, from 50,000 to 172,364 (2% of the 2020 presidential vote).

The state says the vote test for qualified status has been upheld by other courts, but all the other cases were from states that had a method for an unqualified party to transform itself into a qualified party in advance of any election (generally by a petition drive). New York state has no method for a group to become a qualified party in advance of an election.

The state says New York has the fifth highest statewide petition requirement now, but actually it is third. The state makes this mistake because its evidence ignores the existence of procedures in other states for party qualification; instead the state’s expert only submitted evidence about independent candidate procedures. This also causes the state to claim that California, New Mexico, and Oregon have a shorter period to collect signatures than New York does (New York petitions must be collected within six weeks). But California, New Mexico, and Oregon all give groups an infinite period of time to complete the procedure to become qualified.

The state claims on page 29 that neither the U.S. Supreme Court, nor any U.S. Court of Appeals, has ever struck down a petition below 5%. But the U.S. Supreme Court itself did so in two Illinois cases, Illinois State Board of Elections v Socialist Workers Party in 1979, and Norman v Reed in 1992. U.S. Appeals Courts that have struck down petitions below 5% include the Eighth Circuit in McLain v Meier in 1980, the Sixth Circuit in Graveline v Benson in 2021, and the Eleventh Circuit in Green Party of Georgia v Harris.

The state’s brief says the new 2% vote test is “middle of the pack” but doesn’t acknowledge there is a huge difference between requiring a party to get 2% for any statewide race, and requiring it to get 2% for president. Voters are far, far more likely to give their vote to a minor party candidate for an unimportant office than they are for president.

The state says on page 10 that the Libertarian Party’s best showing in New York was 95,033 votes for Governor in 2018, ignoring that the party got 108,530 votes for U.S. Senate in 1992, and also that Gary Johnson got 176,598 votes in New York for president in 2016. However, some of those votes were cast on the Libertarian line, but others on the Independence line. The Independence Party had also nominated Gary Johnson.

The state says on page two that the Libertarian Party’s presidential candidate in 2020 received less than 1%. Actually Jo Jorgensen, the Libertarian presidential nominee, received 1.18% in the nation, the highest percentage for any woman presidential candidate in history in a general election who was not a major party nominee. Presumably the state is talking about Jorgensen’s percentage inside New York, which was .70%.

Florida holds a special election for U.S. House, 20th district, in January 2022. The Republican nominee, Jason Mariner, was formerly in prison for a felony, and some Florida officials and reporters have been speculating that he is not eligible to run for Congress because he never asked for a gubernatorial decision that his rights have been restored. These officials and reporters are in error. State law cannot impede the eligibility of any citizen age 25 and above to run for U.S. House.

Mariner and his attorney have made this point in an article in The Floridian, an on-line Florida newspaper. See it here.

The 20th district is overwhelmingly Democratic, so the consensus of observers is that the Democratic nominee will win the election.

On November 8, the Ninth Circuit issued an opinion in Montana Green Party v Jacobsen, 20-35340. It struck down the unequal distribution requirement that has existed for Montana petitions for new party recognition ever since 1981. The unequal distribution requirement was responsible for the Green Party’s petition failure in both 2018 and 2020. It requires signatures from one-third of the State House districts. The fatal flaw is that it requires almost three times as many signatures from some districts as from others, even though all districts are approximately equal in population.

The decision says, “The State has provided no reason, much less a compelling reason, for requiring far more signatures in some equal-population districts than in others.”

The decision upholds the March petition deadline for new party petitions that had existed in 2018 and 2020, but it would have been surprising if the decision had struck down that deadline, because the Montana Green Party complied with the March deadline in both 2018 and 2020. Thus there was no evidence that the early deadline injured the party. Another case from any state in the Ninth Circuit against such a similar deadline might win someday, if the plaintiff-party fails to meet the deadline and presents evidence about how the deadline injured it. The decision is by Judge William Fletcher, a Clinton appointee; it is also signed by Judge Michelle Friedland, an Obama appointee; and Judge Frederic Block, a Clinton appointee. The lower court had upheld the distribution requirement.

The decision erroneously seems to say that the new deadline of February 4, created this year, is also constitutional. It says that an earlier deadline was upheld in 2016 in Arizona Green Party v Reagan, 838 F.3d 983, but actually in that case the upheld deadline was February 27, 2014, whereas the 2022 Montana deadline (under the new law passed this year) will be February 4. Also the only reason the Ninth Circuit upheld the Arizona deadline was that the Green Party did not submit any evidence that the early deadline injured it. Furthermore the weather is very different in winter in Montana compared to Arizona. The decision also seems to have a typographical error concerning the deadline law. On page sixteen it correctly says the deadline is 123 days before the primary, but on page sixteen it says the Montana deadline is 128 days before the primary. The Montana primary is the first Tuesday after the first Wednesday in June.

Other states with unequal distribution requirements for candidate or party petitions are Arizona and Iowa. Neither state’s distribution requirement has ever been challenged in court; they are both new.