No one knows yet if Gary Johnson received as many as 50,000 votes for President this month in New York state. The preliminary total for Johnson, gathered by the news media, is 42,452. However, the total on election night in New York state, as in most states, is far below what the final total will be. In 2010, New York city finished its official canvass on December 2, 2010, and the final results were 17% higher than the election night total.

The New York State Board of Elections did not release 2010 election returns until December 13, 2010, and chances are the 2012 results will not be known until mid-December 2012.

New York state defines “party” to be a group that polled 50,000 votes for Governor. When this definition was written, New York state elected its governor every two years. There is a plausible argument to be made that it is unconstitutional for a state to make it literally impossible for a group to become a “political party” at any point during a presidential election year. New York and Indiana are the only states in which a group cannot qualify as a “political party”, except on election day in mid-term years.

In 1980, the Libertarian Party polled 52,648 votes for President, and after the election was over, filed a lawsuit, alleging that it had shown enough voter support to qualify as a political party. However, the attorney who filed the lawsuit erroneously sued the New York Secretary of State, instead of the State Board of Elections, which was a fatal procedural flaw.

Each state, and the District of Columbia, has its own law to determine the order of candidates on general election ballots. In 2012, there are eight jurisdictions in which a minor party presidential candidate appeared first on the ballot. Also there are nine states in which minor party presidential candidates appeared first on the ballot in some parts of the state.

The states in which a minor party presidential candidate appeared first on all ballots include five in which candidates are listed alphabetically. In Hawaii, Maine, and Massachusetts, Gary Johnson was listed first because his name came first in the alphabet, among all candidates who were on. In Nevada, Virgil Goode benefited from the same law. In Vermont, Rocky Anderson was first.

Colorado puts all major parties on the ballot in alphabetical order of party name, and the status of the Constitution Party, which is a major party because it polled over 10% for Governor in 2010, meant that Virgil Goode was listed first. It happens to be that the name of that party in Colorado is “American Constitution”, but the results would be the same if it were just “Constitution”, because “C” comes before “D” and “R.”

Utah and the District of Columbia use a random selection process to determine the order of names on the ballot, and Jill Stein was chosen to be first in both places. Oregon also uses that method, and President Obama benefited from that and was listed first.

States that rotate the order of candidates on the ballot, giving each ballot-listed candidate the top spot on some ballots, are Alaska, California, Idaho, Kansas, Montana, New Hampshire, North Dakota, and Ohio. Arkansas seems to give each county discretion over candidate order, and in some counties a minor party candidate was on top. South Carolina rotates the order of parties on the ballot from one election to the next, and it just happens that in 2012, it was the Republican Party’s turn to be listed first on the ballot. Louisiana lists parties on the ballot alphabetically by party name, but of course that means the Democratic Party is always first, although the Green Party is second. South Dakota has a random selection but it happens that in 2012, the Democratic Party was first.

If anyone reading this can help me obtain a copy of a Delaware ballot, or a Hawaii ballot, please e-mail me at richardwinger@yahoo.com.

On November 6, the Vermont Progressive Party elected two State Senators and five Representatives. The winning State Senate candidates are David Zuckerman and Anthony Pollina. The winning Representative candidates are Christopher Pearson, Cindy Weed, Susan Hatch Davis, Mollie Burke, and Sandy Haas.

All seven of these candidates showed that they are Progressive Party members, by listing the Progressive Party first on the November ballot. Vermont permits two parties to jointly nominate the same candidate, and some of the Progressive Party winners were nominated by both the Progressive Party and the Democratic Party. Vermont doesn’t have registration by party. Therefore, the only objective way to know which party a particular fusion candidate belongs to is to see how the candidate chooses to be listed on the ballot.

In Vermont, when a candidate is nominated by two parties, voters can’t use their vote to show which party they prefer. The candidate only appears on the ballot once, so there is only one square on the ballot to vote for him or her. This is referred to as “aggregated fusion”. By contrast, the type of fusion used in New York, Connecticut, and South Carolina, which lets the voter choose the party, is “disaggregated fusion.”