The New York city Independence Party is hoping the mainstream media will mention its showing in the New York city mayoral race last week. It polled 142,817 votes, or 12.98% of the total vote cast for Mayor, according to the incomplete, unofficial returns. See this press release from the party.

In 2009, Mayor Bloomberg was on the ballot twice. Voters could support him on the Republican line, or the Independence line. Minor parties have done very well in past New York City Mayoral races, on a few occasions when their nominee was not running on any other line. For example, in 1969, the Liberal Party nominated John Lindsay, and he won the election even though he was not the nominee of any other qualified party. So the 2009 showing for the Independence Party is not a record showing for a minor party.

But, the Independence Party press releases says its 2009 showing is a record for a minor party whose Mayoral nominee was also running on a major party line. And it is true that it is very tough for a New York minor party to poll a large share of the vote when its nominee is simultaneously running on a major party line. For New York city mayoral elections, the last time a minor party that was running someone who was also running on a major party line did so well was in 1949, when the Liberal Party polled 373,287 votes (14.40%) even though its nominee, Newbold Morris, was simultaneously running as the Republican nominee.

Joelle Riddle, a La Plata County, Colorado, Commissioner, will file a lawsuit in a few days to overturn the Colorado law that says no one may be an independent candidate (for office other than President and Vice-President), if that person was a registered member of a qualified party at any time within the entire year before filing. She switched her registration from “Democrat” to “independent” in August 2009, intending to run for re-election in 2010 as an independent. But Colorado law won’t let anyone be an independent candidate if they had been a member of a qualified party later than June 2009. See this story.

On the surface, it might appear that her lawsuit has little chance of success. In 1974 the U.S. Supreme Court upheld an almost identical California law, in a case called Storer v Brown. The vote was 6-3. However, there are some differences between California law back then and current Colorado law. Back in 1974, California had equally restrictive rules for candidates seeking to place themselves on partisan primary ballots. No one could get on a partisan primary ballot who had been registered in another party for an entire year before filing. California still has this restriction on getting on a primary ballot.

But, Colorado’s law on prior registration restrictions for candidates in a partisan primary were declared unconstitutional in state court in 1988. As things stand now in Colorado, any qualified party, major or minor, is free to write its own rules on prior affiliations. A party in Colorado is free to have a bylaw saying it doesn’t care about a candidate’s past registration. The basis for the 1988 Colorado court victory for parties was that in 1986, the U.S. Supreme Court had said in Tashjian v Republican Party of Connecticut that states have no authority to tell parties they can’t nominate a non-member, if they want to.

Ironically, this means that Riddle is still free to create a new ballot-qualified party, and then have that party pass a bylaw saying anyone can be nominated by that party, regardless of how that candidate was registered in the past. In theory, she could create the “Joelle Riddle Party” if she could get 10,000 signatures on a petition to establish that party, and then it could nominate her and she could appear on the 2010 November ballot that way. The very fact that Colorado lets new parties nominate whomever they wish makes it possible for her to argue that Colorado doesn’t really have a strong interest in barring independent candidates because of the way they were registered in the past. The Colorado legislature waited until 2007 to amend the election law give qualified minor parties the freedom to write their own rules about whom they can nominate; the bill was SB 83. The Libertarian Party of Colorado successfully lobbied for it. Until it passed in 2007, only the two major parties had that freedom. Thanks to Nancy Hanks for the link.