Stacking the Deck: How Ballot Access Laws Are Written to Disadvantage Minor Parties

 

 

If the 2016 election was good for anything, it reminded us that controlled markets produce garbage products. In 2016, we saw the two most disliked presidential candidates in American history go head to head. That might explain why nearly nine million people voted for third-party candidates and another 5 million (or more) stayed home.

I call it a “controlled market” because third parties are intentionally excluded. There are several structural barriers inherent to our system of government, but two additional barriers are put in place by major parties to make sure third parties don’t muck things up for them: debates and ballot access.

As to the latter, ballot access, I’ll note that Gary Johnson was the only third-party candidate who was on the ballot in all 50 states. Jill Stein was allowed to be a choice in only 44 states. Evan McMullin only made the ballot in 11 states. (As to the former, the Commission on Presidential Debates is actually a wholly owned subsidiary of the two major parties. Before 1988, presidential debates were conducted by the League of Women Voters. The CPD is a cartel that excludes additional market entrants.)

Much is made about how minor parties, including the Libertarian Party, only act as spoilers and never win elections, and so forth. Indeed, our single-member district system of elections benefits a two-party system by its nature. So, third parties work from a natural disadvantage, but the two major parties exacerbate that by conspiring together to limit ballot access to minor party candidates.

Ballot access in New York, which I’m somewhat familiar with gives us an interesting look into how the deck gets stacked against minor party candidates. We have a gubernatorial election this year in helping to get one of the candidates, Larry Sharpe, on the ballot. Specifically, I was the New York Libertarian Party’s statewide petition coordinator*. During a six week period this summer, thousands of pages of petitions came to my home, and so I learned all about the horse [expletive] process that passes for functioning democracy in my state.

There will be five candidates on the ballot next month: Andrew Cuomo, Republican Marc Molinaro, perennial Green Party candidate Howie Hawkins, Stephanie Miner, and the above mentioned Larry Sharpe. (Cynthia Nixon, who had been endorsed by the Working Families Party has withdrawn and will not appear on the ballot.)

To understand the New York system, there are two important concepts I need to explain, fusion voting and ballot-recognized party status.

The Concepts

Fusion voting is only practiced in eight states. It’s a system where a candidate can be endorsed by multiple parties. So, Andrew Cuomo this year will not only be on the ballot line of the Democratic Party but a few other parties as well.

This system lets minor parties gain notoriety by endorsing major party candidates and major party candidates seek out minor party endorsements. It also means that sometimes well established major party candidates create minor parties as cut-outs to endorse them. A real-life example is the Women’s Equality Party of New York, which was created by Andrew Cuomo in 2014 specifically for that purpose. (And no, this isn’t crazy Fred’s interpretation of things. Go read the Wikipedia page.)

The second concept is Ballot-Recognized Parties. There are two types of political parties in New York, official, ballot-recognized parties, and unofficial parties. Currently, there are eight “official” political parties in New York:

  • The Democratic Party
  • The Republican Party
  • The Green Party
  • The Reform Party (This is unrelated to the old Perot Reform Party. Four years ago it was the Stop Common Core Party. They generally endorse Republicans.)
  • The Independence Party (This party used to be affiliated with the old Perot Reform Party. They generally endorse Republicans.)
  • The Conservative Party (They usually endorse Republican candidates, except in Albany County where it’s controlled by Democrats.)
  • The Working Families Party (This party is a coalition of labor organizations that generally endorse Democrats.)
  • Women’s Equality Party (This is the above-mentioned Cuomo front organization.)

You’ll notice a party that’s not on the list: the Libertarian Party. Despite having been around for 45 years, the LPNY is not currently ballot-recognized.

How does a party become ballot-recognized? It is tied to the quadrennial gubernatorial election. To qualify, a candidate must receive 50,000 votes on that party’s line. If they fail to get those 50,000 votes in subsequent elections, they lose their status.

Getting on the Ballot

Ballot-recognized states makes a huge difference. It allows parties to organize differently, it lets parties hold primaries, and gives them easy ballot access. Without it, candidates need to engage in ballot petitioning, an arduous process designed to keep candidates off the ballot.

If you’re a candidate and you want to run in a primary for office from a ballot recognized party, generally you need five percent of the registered voters in your political unit. So if there are 10,000 registered Democrats in the polity you want to run for mayor in, you need 500 signatures to be on the primary ballot. That’s not a high barrier for a well-organized candidate from a major party.

With smaller parties, it’s even easier. If you want to run on the Working Families Party line in a town of 35,000 people, and there are 20 registered WFP voters there, two signatures is double what you need. (This is a real-life example. I know a politician who had her family members register in the WFP for that specific purpose.)

If you’re not a ballot-recognized party, the barrier is much higher. If you want to run as an independent, the requirements vary, but it’s something like 1,500 signatures for an assembly seat. But the higher the office, the higher the requirement. If you want to run for governor, you need 15,000 signatures.

The Real Challenge

I realize that 15,000 signatures doesn’t sound like a lot for a statewide candidate, but it’s actually a pretty big operation to collect that many signatures. Bigger still, because of challenges. Any citizen can challenge those ballot petitions, specifically or generally.

A general challenge is along the lines of “You don’t have 15,000 signatures.” Jimmy McMillan, famous as the guy from the Rent Is Too Damn High Party, filed petitions this year but you could tell from the number of volumes he submitted, he didn’t have the signatures. He succumbed to a general challenge.

The specific challenge goes to individual signatures. Each signature needs to be from a voter registered in New York, it needs to be legible, the address needs to match the voter registration records, and the town needs to be correct. That’s this little beauty.

That section is there specifically to make challenging petitions easier. My mailing address is “Schenectady,” but I live in the Town of Rotterdam. Now, I know that because I’ve lived there my whole life. But lots of people don’t know what town they live in. Or they write the village, not the town. Or they write hamlet, not the town. Or they think they live in one town when they actually live in another.

Oh, you didn’t know any of this? Neither did I until I learned about it this summer. While we were cleaning up and correlating petitions, a group of us sat there flipping through a gazetteer and piles of maps trying to figure out what town a specific address was actually in.

The idea is to get so many signatures (our goal was 30,000, double the requirement) as to deter any challenges. And you don’t just need 15,000 (actually 30,000) signatures. You also need at least 100 (actually 200) from each congressional district. Once we collected the signatures, they needed to be checked (for legibility and that the town and the witness statement at the bottom was filled out correctly) and then correlated.

And all this needs to be done in six weeks, that’s how long the petitioning period is. Then the correlated petitions need to be delivered in person, to the state board of elections in downtown Albany. When our team delivered them, we had a wagon full of boxes, full of bound petitions.

New York actually has several statewide positions up for election this year, so our petitions included the lieutenant governor, attorney general, and comptroller candidates. (They are Andrew Hollister, Chris Garvey, and Cruger Gallaudet, respectively.)

Wherever possible, individual state assembly and senate candidates were also included. However, in order for them to be included on statewide petitions, they districts need to cross county lines. So if you have a district completely within one county, you needed to be on a separate nominating petition. Why didn’t we include US Senate and House candidates on our petition? Oh, because those are completely different petitioning periods, which barely overlap.

Then there’s the petitioning period itself. These signatures all need to be collected, cleaned, collated, and delivered in a six-week period. This year that period started in the second week of July and ended in August. So it was scheduled for a time when a candidate should be campaigning, when colleges are out of session, and when people are away on vacation. Traditional door-to-door petition gathering, already difficult to begin with, is hampered by the schedule for the period.

Two Sets of Standards

Now, I’d have less of a complaint about this terrible system if it applied equally to everyone equally. However, Andrew Cuomo didn’t have to get 15,000 (actually 30,000) signatures to get on the ballot. He had to get zero.

You see, if you’re a ballot-recognized party, and you hold a convention, and you nominate a candidate for statewide office, you don’t have to file any petitions. Nada. Nothing. El Zilcho. To challenge the incumbent Cuomo, Cynthia Nixon needed 15,000 signatures to get on the primary ballot. But King Andrew got there merely by being nominated. (That’s one hell of a free pass for ballot-recognized parties.)

Thing may be different from the LPNY in four years if Larry Sharpe gets 50,000 votes in a few weeks. Then we’ll have made it past this barrier. But the candidate in 2022 will need to get 50,000 votes in order to keep that status. (Unless they change the rules to make it harder, which, if the LP is too much of a nuisance to the major parties, they well might.)

But in the meantime, when a candidate should be building an organization, getting name recognition, and raising funds, outside candidates, they have to expend time, energy, and cash jumping through hoops that their major party opponents do not.

If voters have problems with the LP, fine. If they take issue with minor parties acting as spoilers or “stealing” votes from major party candidates, so be it. But if they take swipes at minor parties and how they “never win anything,” understand that they’re starting at a disadvantage not faced by major party candidates. And if people complain about “the political class” or “the establishment” or even “the deep state,” please recognize that one of the tools they use to maintain their positions of power is excluding outside competition.

 

*In the interest of full disclosure, I should also mention that I’m a member of the NYLP state committee and that I filled out a form and am technically a member of the Sharpe campaign, although I haven’t done any work for them.  And obviously, the views expressed here are entirely my own. 

 

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  1. Duane Oyen Member
    Duane Oyen
    @DuaneOyen

    Seems to me that if you can’t get 15,000 signatures in a state that size, there is zero point in being on the ballot and wasting everyone’s time and money.  Send out literature urging write-in votes.

    It is, of course, pretty easy to see why the LP isn’t on the ballot.  They had their day, people saw what nonsense they try to sell, and how worthless the bilge is that is disseminated by the Reason crowd (with the occasional exception of Ron Bailey).  So they are now ignored.

    • #1
  2. Kozak Member
    Kozak
    @Kozak

    LOL. Because this would so improve our elections….

    • #2
  3. Instugator Thatcher
    Instugator
    @Instugator

    Fred Cole: Now, I’d have less of a complaint about this terrible system if it applied equally to everyone equally.

    You mean that if the LP got its 50,000 votes it wouldn’t be ballot qualified?

    Really?

    Or are you really complaining about having to go through the petition drive.

    That seems simple – I mean, you guys need only collect less than 1 signature per 1024 voting age citizens. 

    That is even less than Elizabeth Warren’s proportion of non-caucasian blood.

    Then you need only get 1 out of 310 voter to pull your lever.

     BTW, how many people did you have working on the petition?

    • #3
  4. Instugator Thatcher
    Instugator
    @Instugator

    Fred Cole: It also means that sometimes well established major party candidates create minor parties as cut-outs to endorse them. A real-life example is the Women’s Equality Party of New York, which was created by Andrew Cuomo in 2014 specifically for that purpose. (And no, this isn’t crazy Fred’s interpretation of things. Go read the Wikipedia page.)

    Sounds like an easy way to become Ballot Qualified. Do the legwork, nominate the Republican, Garner the 50K votes in one election, run your guy the next time.

    Beats working like a dog for 11 election cycles.

    • #4
  5. Nick H Coolidge
    Nick H
    @NickH

    Minor parties could, in theory, perform a useful function if they were a serious threat to win. The major party candidates would be forced to modify their positions to keep voters from defecting. So the major parties conspire to keep the third parties in their place.

    It’s a vicious cycle really. People (justifiably) point out that the national LP convention is only one ring short of a circus, but the did manage to get the full set of circus freaks. And that’s the most successful third party! You can’t win without a serious candidate, but serious candidates go where they can win. The LP is left with the hardcore ideological purists, the disaffected, and the guy with a boot on his head. 

    There’s an opening for the LP in 2020 if they can take it. The GOP is only in favor of small government when they’re not in power and the Democrats are never going to do anything to shrink government power. Sometimes it’s hard to tell the difference between the way the two parties govern when it comes to spending. The LP needs to win some house seats to have some influence. Then maybe they’ll be able to do more.

     

    • #5
  6. JoelB Member
    JoelB
    @JoelB

    Thanks for an interesting look at this part of the political process, Fred. Your post raises some interesting questions as to how to make the electoral system more sensitive to the will of the people without splintering into an ineffective plethora of factions.

    • #6
  7. ToryWarWriter Thatcher
    ToryWarWriter
    @ToryWarWriter

    In Canada, ballot access laws were overturned by the Supreme Court when the Marxist-Leninist party appealed to that court.  In Canada the ruling Liberals didnt deny parties the ability to run, just denied them there party ID on the ballot.

    The ML Party argued that people had a right to know who they were voting for and didnt want anyone voting for them by accident.  The Supreme Court agreed.  

     

    • #7
  8. Instugator Thatcher
    Instugator
    @Instugator

    Nick H (View Comment):
    The LP is left with the hardcore ideological purists, the disaffected, and the guy with a boot on his head. 

    I am reliably told that walking around and giving speeches with a boot on your head is enough to invoke the provisions of the 25th Amendment.

    However, to Nick’s comment – an unwillingness to apply game theory to the system – opting instead for ideological purity – is more of a reason that the LP has been frozen out of elections than the conspiracy theory offered by Fred.

     

    • #8
  9. David Carroll Thatcher
    David Carroll
    @DavidCarroll

    Incumbent party politicians make the rules.  Why is anyone surprised that they make it hard on the parties on the outside?  Does anyone really think that the elected officials who make the laws are really about good and efficient government?  Is that any graduate of elementary school who still thinks that?   

    • #9
  10. Shawn Buell (Majestyk) Contributor
    Shawn Buell (Majestyk)
    @Majestyk

    First past the post elections mean that we form our coalitions before elections and not afterwards.

    I don’t care that minor parties have a hard time getting on statewide ballots – that’s why they’re “minor parties.”

    • #10
  11. Shawn Buell (Majestyk) Contributor
    Shawn Buell (Majestyk)
    @Majestyk

    Here is my article from 2016 about why we have a 2-party system and why it’s superior to a plethora of minor parties.

    • #11
  12. James Of England Moderator
    James Of England
    @JamesOfEngland

    Instugator (View Comment):

    Nick H (View Comment):
    The LP is left with the hardcore ideological purists, the disaffected, and the guy with a boot on his head.

    I am reliably told that walking around and giving speeches with a boot on your head is enough to invoke the provisions of the 25th Amendment.

    However, to Nick’s comment – an unwillingness to apply game theory to the system – opting instead for ideological purity – is more of a reason that the LP has been frozen out of elections than the conspiracy theory offered by Fred.

    It’s not ideological purity. They’re willing to nominate candidates who are radically more statist than Molinaro or Cuomo. Johnson recently said that he was running to get interviews rather than to get more votes than the other guys.

    If Sharpe was ballot recognized, he still wouldn’t make enough of a dent to serve any non spoiler function. The man has a 5% approval rating and a 10% disapproval rating, while no other candidate is more disliked than liked. Non-candidate Trump is also disfavored in his home state, but not by as big a ratio as Sharpe.

    The point is not to win. If it were, your game theory would obviously be sound. The point is to get media attention for the candidate and play at being in politics (in Johnson’s case, to make money, but I get the impression that Sharpe is honestly pursuing an interest). If they wanted to achieve a goal (reduced occupational licensing, for instance), they could work on that. Instead, they spend most of their time talking about themselves and the process. Not running the candidate would remove the point.

    For many of the supporters, it’s an identity thing, much like the morons backing the Serve America Party (which gathered 40k signatures). It’s important to many of these people to maintain that the LP is equidistant from the two parties. Endorsing the Republican in New York would thus be a huge problem for the party nationally. Endorsing the Democrat is unthinkable (and would run a bigger risk of not getting 50k votes).

    As so often, if it looks like the market is failing, you might not be understanding the market.

    https://files.constantcontact.com/9c83fb30501/4f7ee355-8094-4adb-88c0-c4766dc241fb.pdf

    • #12
  13. Instugator Thatcher
    Instugator
    @Instugator

    James Of England (View Comment):
    The point is not to win. If it were, your game theory would obviously be sound. The point is to get media attention for the candidate and play at being in politics (in Johnson’s case, to make money, but I get the impression that Sharpe is honestly pursuing an interest). If they wanted to achieve a goal (reduced occupational licensing, for instance), they could work on that.

    I don’t think Fred understands this.

    • #13
  14. Instugator Thatcher
    Instugator
    @Instugator

    James Of England (View Comment):
    The point is not to win. If it were, your game theory would obviously be sound. The point is to get media attention for the candidate and play at being in politics (in Johnson’s case, to make money, but I get the impression that Sharpe is honestly pursuing an interest). If they wanted to achieve a goal (reduced occupational licensing, for instance), they could work on that. Instead, they spend most of their time talking about themselves and the process. Not running the candidate would remove the point.

    You know, if this this true, then Fred’s effort over the summer is even more forlorn than I first imagined.

    • #14
  15. James Of England Moderator
    James Of England
    @JamesOfEngland

    Instugator (View Comment):

    James Of England (View Comment):
    The point is not to win. If it were, your game theory would obviously be sound. The point is to get media attention for the candidate and play at being in politics (in Johnson’s case, to make money, but I get the impression that Sharpe is honestly pursuing an interest). If they wanted to achieve a goal (reduced occupational licensing, for instance), they could work on that. Instead, they spend most of their time talking about themselves and the process. Not running the candidate would remove the point.

    You know, if this this true, then Fred’s effort over the summer is even more forlorn than I first imagined.

    It depends on what you think Fred is doing. Just because Johnson viscerally dislikes reading and shows little interest in policy doesn’t mean he’s dumb. If you think Fred was trying to make it easier for New Yorkers to braid hair or something similar, obviously supporting a third party that will have no impact other than making deregulation a less electorally profitable a platform for others would be unwise. He could have made a vastly bigger impact by supporting a small l libertarian state assembly primary campaign (either GOP or Democrat; both parties have candidates who are better and worse than each other from Fred’s perspective), for instance. Outside Wisconsin, Republicans are generally shorter on manpower (unions are a really big deal), but even being part of a larger, professional, team would be more impactful on the world. 

    If you think that Fred is sad about politics and is looking to find meaning in a social crusade that makes him feel good about himself, I see no reason to believe he hasn’t chosen a perfectly sensible path. It’s likely that there’s good camaraderie in his group, he has a position of responsibility, and images of Trump or Hirono on the news cause only a mild sense of superiority rather than the shame sometimes felt by those who associate themselves with actual candidates. The impact is likely to be relatively minimal, so it’s not much more harmful to society than Magic games and seems obviously better for self improvement. Those of us who spend a bunch of time on Ricochet aren’t in a great place to throw stones about hobbies that don’t always make a big impact. ;-)

    With luck, the growth will be in the direction of putting his skills to good use rather than becoming more cult-y. 

    • #15
  16. Fred Cole Inactive
    Fred Cole
    @FredCole

    Um, thanks, James.

    • #16
  17. Henry Racette Contributor
    Henry Racette
    @HenryRacette

    Shawn Buell (Majestyk) (View Comment):

    Here is my article from 2016 about why we have a 2-party system and why it’s superior to a plethora of minor parties.

    Thanks, Shawn. Good article.

    @fredcole, I appreciate the effort and detail you put into your post. While I might take issue with some of the mechanisms created to discourage minor-party challengers, I side with Shawn in thinking the two-party system a feature, rather than a bug, of our political process.

    Put simply: allowing easier access for minor parties increases electoral noise, and makes the outcome more random. I don’t think that’s good. I see politics as basically a battle between conservatism — the preservation of a traditional American cultural and legal/political norm — and everything else, with “everything else” obviously covering a lot of territory. I want that choice, between preserving what we have and adopting something — anything — radically different, to be the choice the voter faces when he or she steps into the ballot box.

    Imagine it were different, and minor parties could easily get on the ballot. Picture two scenarios:

    1. Three candidates are presented on the ballot: a Republican, a Democrat, and a Gun Rights candidate.
    2. Three candidates are presented on the ballot: a Republican, a Democrat, and a Legalize Pot candidate.

    In the first instance, the Democrat is likely to win. In the second, the Republican is likely to win. In both cases, a majority are likely to be disappointed by the outcome, which is the opposite of what would have happened if only the Republican and Democrat had run. How does that improve politics?

    Now multiple that by the number of fruitcake special interests out there, and see how meaningless the results of an election become.

    Finally, while I love free markets, we aren’t talking about a market here. In a market, I don’t have to live with your market choices. In an election, I do have to live with the majority’s choice. What we are doing in an election is picking the monopoly that everyone has to live with for the next few years. That isn’t what markets are supposed to do, and it isn’t obvious that a free market is the best way to filter candidates.

    As Shawn observes in his excellent post, the primary process provides an opportunity for narrow interests to make their case. I’d rather keep them to a minimum on election day.

    • #17
  18. James Of England Moderator
    James Of England
    @JamesOfEngland

    Fred Cole (View Comment):

    Um, thanks, James.

    I don’t want anyone thinking you dumb, Fred. You’re plenty smart.

    • #18

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