Here is an article about the No Labels party published in the online Wall Street Journal today.

On June 30, the New York State Board of Elections filed its response in Libertarian Party of New York v State Board of Elections, 22-893.

Here it is. This is the case that challenges the ballot access changes made in 2020. The changes were: (1) tripling the statewide independent petition from 15,000 signatures to 45,000 signatures, without expanding the six-week petitioning period; (2) making the distribution requirement much more severe; (3) changing the definition of a qualified party from one that polled 50,000 votes for Governor, to one that polled 2% of the vote for the top of the ticket office every two years.

The brief has nothing to say about the fact that when New York in 2020 first required a party to poll a certain share of the vote for president, New York became one of only five states to force qualified parties to perform in the presidential race.

The brief implies that the 2020 changes were to “update” a “century-old” requirement. It says that the 15,000 signature requirement had been passed in 1922. That is factually wrong. The 1922 legislature did not change the number of signatures. The petition had been set at 12,000 in 1918, and then it was raised in 1971 to 20,000, and then in 1992 lowered to 15,000. The text of the brief says the 15,000 signature requirement was set “more than a century ago”, but footnote two admits that the 15,000 was set in 1992. But only a careful reader would catch the contradiction.

The brief says that the old petition requirement placed “no meaningful burden” on petitioning groups. Actually, the old law prevented the presidential candidate who placed third in the nation from being on the New York ballot in 1936, 1956, 1972, 1976, and 2004.

The brief says that under the old New York law, the state faced the problem of “ballot clutter” and “voter confusion”, but the brief does not single out any year in which the ballot was too crowded. Instead, it says repeatedly that between 1996 and 2020, there were fourteen different unqualified parties that used the statewide petition, but that period includes 13 different election years.

The brief says the New York definition of a qualified party is “in the middle of the pack,” and it is true that the median vote test of the 50 states is 2%, and New York’s vote test is 2%. But, that ignores the fact that it is far more difficult for a minor party to poll 2% for president than for other statewide offices. The only minor parties that have polled as much as 2% of the national presidential vote in the last 100 years are the Progressive Party of 1924, the Socialist Party of 1932, the States Rights and Progressive Parties of 1948, the American Party of 1968, the Reform Party in 1996, the Green Party in 2000, and the Libertarian Party in 2016.

The brief says New York had to increase the requirements to avoid wasting money on minor party candidates in the new public funding program, without mentioning that the Second Circuit had already ruled in a Connecticut case that states don’t need to give money equally in public funding programs.

As to the short petitioning window, the brief says the U.S. Supreme Court seemed to approve of a 25-day petitioning window in California in Storer v Brown. Actually, the U.S. Supreme Court did not uphold the California independent petitioning period; it remanded the case for more facts. More important, California has always allowed an infinite amount of time for its procedure for new parties to get on the ballot. For example, the California Libertarian Party took seven years to complete its registration drive for party status, 1972-1979.

The brief does not acknowledge that New York is one of only eleven states with no procedure for a group to become a qualified party in advance of any particular election.

The Libertarian and Green Parties do have an opportunity to file a reply brief.