On December 22, U.S. District Court John G. Koeltl, a Clinton appointee, upheld the New York statewide petition requirement for independent candidates and the nominees of unqualified parties. He also upheld the new definition of a political party, a group that polled 2% of the vote every two years for the office at the top of the ballot (Governor in midterm years, and president in presidential years). SAM Party of New York v Kosinski, s.d., 1:20cv-323. Here is the 37-page opinion.
Judge Koetl issued the opinion less than 24 hours after the oral argument. His opinion has serious factual errors. Page 23 says New York requires the seventh highest number of signatures, when actually New York has the fourth highest number of signatures for president. His statement is based on errors concerning California, Pennsylvania, and North Carolina. The document he relied on says Pennsylvania requires 57,913 signatures, when actually it requires 5,000 signatures as the result of a 2012 court decision, Constitution Party of Pennsylvania v Aichele. The document he relied on for North Carolina says that state requires 82,542 signatures, when actually a new party needs 13,757 signatures. The document he relied on for California says California requires 220,474 signatures in 2022. Actually it is impossible to petition onto the California general election ballot in a midterm year, and no one needs more than 65 signatures to petition onto the primary ballot.
Page twenty-three says New York is “in the middle of the pack” regarding its 2% vote test for party status, but he doesn’t mention that the typical state lets a vote for any statewide race count towards party qualification, whereas New York requires 2% for president, in a presidential year. Evidence in the case, but ignored by Judge Koetl, shows that it is far easier for a minor party to poll 2% for a lesser statewide race than for president.
Page twenty-one mentions precedents from other states upholding vote tests more difficult than 2%, but the opinion does not say that all of those states (Oklahoma, North Carolina, and Arkansas) have a procedure by which a group that fails the vote test can regain its party status before the next election, with a petition. New York has no such procedure.
Pages four and twenty-three say the increase in the vote test, which was last changed in 1935, is justified because the state has four times the population it had in the 1930’s. But he doesn’t say that the number of votes cast has not even doubled. In 1936 New York cast 5,596,399 votes for president; in 2020 it cast 8,594,826, an increase of 53.6%, not 300%. Clearly the number of votes cast is more relevant than the population.
The opinion says the increases are needed to save money for the state’s public funding program. The decision does not say that the Second Circuit already ruled in Green Party of Connecticut v Garfield that if a state has public funding, it need not give the money to small qualified parties. The opinion also says the increases are needed to combat “ballot crowding”, but the state introduced no evidence about ballot crowding. To the extent that New York ballots are confusing, the state is free to switch to an office-group ballot.
