On December 23, the Maine Libertarian Party filed this brief in Baines v Bellows, 1:19cv-509. This is the ballot access case concerning new and minor parties. The Maine laws on de-enrolling party members when a party goes off the ballot, and restricting who can sign primary petitions, had been held unconstitutional on November 17, 2021. Afterwards the judge expected the Libertarian Party and the Secretary of State to come to a joint understanding on how to implement the decision.

But the Secretary of State declined to put the party back on the ballot, so now judge Lance Walker will decide.

It is normal for courts to put parties on the ballot, after the party has won a constitutional ballot access lawsuit. The U.S. Supreme Court put the American Independent Party on the Ohio ballot in 1968, and put the National Democratic Party on the ballot in several Alabama counties the same year (the National Democratic Party was an African-American party that was different from the Democratic Party). The U.S. Supreme Court also put the Harold Washington Party on the Cook County, Illinois ballot in 1990, even before declaring the laws that had kept it off the ballot unconstitutional.

Lower courts have taken similar action many times: in Alabama in 1990 (New Alliance), in Alaska in 1982 (Alaskan Independence), in Hawaii in 1974 (Peoples), in Idaho in 1984 (Populist), in Illinois in 1972 (Communist and Socialist Labor), in Kansas in 1982 (Libertarian), in Massachusetts in 1984 (New Alliance), in Michigan in 1984 (Socialist Workers), in Nebraska in 1976 and 1984 (Libertarian), in Nevada in 1986 (Libertarian) and 1992 (Populist and Natural Law), in New Mexico in 1988 (Workers World), in Ohio in 1970 (Socialist Labor), 2008 (Libertarian and Socialist) and 2014 (Libertarian, Green, Constitution, and Socialist), in Oklahoma in 1984 (Libertarian), in Tennessee in 2012 and 2014 (Green and Constitution), and in Wyoming in 1984 (Libertarian). There are probably other examples as well. In Maine itself, the Reform Party sued in 1996, but then the state agreed it had qualified for the ballot, so the court didn’t need to make a ruling.

Ballotpedia has looked at partisan races held on November 2, 2021, and has identified two state legislative races, and three for local office in New York state, where a minor party nominee polled more votes than the margin between the Republican and the Democratic nominees. See the list here. One legislative race was in New Jersey and one was in Virginia.

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.