Joel Searby, campaign manager for Evan McMullin, has this interesting account of how the McMullin campaign was launched in the first week in August 2016.
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On December 2, the First Circuit upheld the New Hampshire law making it illegal to circulate the petition for party status during an odd year. Libertarian Party of New Hampshire v Gardner, 15-2068. The 30-page opinion says that no U.S. Court of Appeals has ever struck down a state ballot access law for new parties on the grounds that too many signatures were required. This is not true; the judges didn’t seem to know about McLain v Meier, an 8th circuit opinion from 1980 that struck down North Dakota’s 3.3% petition requirement.
The New Hampshire opinion does not discuss any state interests in barring petitioning for a new party during odd years. It just says that the law (requiring 3% of the last gubernatorial vote, with all petitioning to be completed during election years), doesn’t seem too difficult. The judges relied on the fact that the U.S. Supreme Court refused to strike down Georgia’s 5% petition in Jenness vo Fortson in 1971. For 2018, the law requires approximately 22,800 valid signatures, which is very difficult in a small-population state.
The opinion denigrates the New Hampshire Libertarian Party’s vote totals in 2012, when the party last did the party petition. Back in 2012, the law permitted the party to circulate the petition as early as it wished. The judges who wrote the opinion seem to suggest that because the Libertarian Party didn’t get many votes in New Hampshire in 2012, and didn’t run many candidates, it isn’t really important if it’s difficult to get a party on the ballot or not. The opinion says nothing about the fact that the Libertarian Party used the independent petition in 2016 and polled enough votes so that it is now a qualified party for 2016. Of course, all the evidence was submitted well before the 2016 election occurred.
The Washington state Libertarian Party has told the press that it will sue if the Secretary of State denies that it is now a qualified party. See this story.
Fordham Law Review, December 2016 issue, has kindly published my article, “Does the Constitution Provide More Ballot Access Protection for Presidential Elections than for U.S. House Elections?” Here is a pdf of the article. I hope it focuses attention on the dismal state of ballot access laws in the United States for third parties and independents in U.S. House elections.
In Georgia, no one has successfully completed the independent or minor party petition to get on the ballot for U.S. House since 1964. In North Carolina and South Carolina, no independent candidate for U.S. House has ever appeared on a government-printed ballot. North Carolina has had government-printed ballots since 1901, and South Carolina since 1950.
Now is the time for people who are dissatisfied with current election laws to look for legislators who will introduce bills to improve the laws in 2017. Few people are aware that this is the best time to be doing that work. Some state legislatures have very early deadlines for bills. The most restrictive deadline is the Indiana legislature’s December 9, 2016 deadline for legislators to ask legislative staff to draft proposed bills.
Year after year, Indiana is the only state with restrictive ballot access in which no bill is introduced to improve those laws. No statewide minor party or independent petition has succeeded in Indiana since 2000. Indiana is one of only four states in which Ralph Nader (who placed third, in three presidential elections in a row) never got on the ballot (the others are North Carolina, Georgia, and Oklahoma). In the other states, there are always bills and/or lawsuits to do something about it, but Indiana is a dead zone. There is one Constitution Party activist working hard in Indiana to find a sponsor in time to meet the deadline. Anyone who lives in Indiana and who would like to help him should contact me at richardwinger@yahoo.com, or 415-922-9779.