Recently No Labels announced that it endorses Andrew Cuomo for Mayor of New York City. This is believed to be the first time that No Labels has endorsed any candidates running outside the two major parties. Cuomo, although a registered Democrat, is running as an independent candidate.

Cuomo is responsible for making New York state ballot access for statewide candidates far more difficult. It is ironic that No Labels, which would have had a terrible time getting a presidential nominee on the ballot in New York in 2024 if they had actually run someone, has endorsed a ballot access opponent.

No Labels would have had a bad time with New York ballot access because New York has no procedure for a group to get on the ballot until after it has chosen a nominee. No Labels also would have had to contend with New York’s May petition deadline, and the short petitioning window.

U.S. District Court Judge Maxine Chesney will hear Peace & Freedom Party v Weber, n.d., 3:24cv-8308, on Friday, August 22, in San Francisco. The hearing starts at 9 a.m. and is on the 19th floor of the federal courthouse at 450 Golden Gate Avenue. It is in Courtroom 7.

The state will argue that the case should be dismissed because the California top-two system was upheld in 2015 in the State Court of Appeals. However, the 2015 decision has significant factual errors, a statement that the state does not dispute. Furthermore, other courts have sometimes struck down restrictive ballot access laws even though the same restriction had been upheld by a different court in an earlier case. The U.S. Supreme Court said twice (in Storer v Brown in 1974, and again in Mandel v Bradley in 1977) that the constitutionality of ballot access laws depends on how often the challenged law has been used. Therefore, history matters, and a law that has been challenged when it was new and upheld might be found to be too restrictive as the year pass.

For instance, in 1971 Arkansas created a petition of 7% of the last gubernatorial vote for a new party to get on the ballot. In 1972 the State Supreme Court upheld it. But in 1977, a U.S. District Court struck it down, on the grounds that it had not been used successfully in 1972, 1974, or 1976, a fact that could not have been known in 1972.

Since the California top-two system was put into effect in 2011, no minor party candidate has been able to appear on the general election ballot if both the Democratic and Republican Parties had a candidate on the primary ballot, with a single exception in 2024 for one Assembly seat. As to statewide office, California and Washington (which also has a top-two system) are the only states with a Democratic-Republican ballot monopoly during the 2020’s decade for offices covered by the top-two system. The top-two system does not cover presidential elections.