LP fights unfair ballot access laws in four states

Richard Winger
Richard Winger

Guest entry by
Richard Winger,
publisher of Ballot Access News

The Libertarian Party has been forced to fight for fairer ballot access laws for more than four decades, and has successfully done so in many states, playing a key role in improving their ballot access laws. Many detrimental laws still exist, though, and some states have made these laws considerably worse during the last few years.

State laws, rather than federal laws, have complete control over ballot access laws, so their fairness varies widely throughout the United States. This diversity between states can make it easier to affect any particular law, but it also means that the United States, almost uniquely among countries that have the reputation of holding free elections, has many laws that make it difficult for any party other than the those of the Democrats and Republicans to place its nominees on the ballot.

The Libertarian Party is currently fighting for fairer ballot access in a four states:

California has a long history of intolerance toward parties that try to compete with Democrats and Republicans. Its latest disgraceful election law kept state and congressional Libertarian Party candidates from appearing on California ballots in 2012, and the LP is fighting back in court.

In 1891, when almost all states were writing their first ballot access laws, California became one of only two states that set the petition requirement for a new party to get on the ballot at above 1 percent — the original law required a petition of 3 percent. In 1937, the legislature increased the petition requirement to 10 percent of the last vote cast, although there continued to be an alternate path to the ballot, requiring the group to persuade 1 percent of the last vote cast to register into the party on voter registration forms.

In June 2010, California voters passed Proposition 14, which said that in elections for Congress and state office, all candidates would run on a single primary ballot in June, and then only the two top vote-getters could run in November. In 2012 the legislature passed a bill eliminating write-in space from the November ballot for these offices.

For the first time since the Libertarian Party qualified for the ballot in California in 1979, the 2012 election had zero Libertarians appearing on the November ballot for Congress and state office, and zero votes were recorded for Libertarian candidates for those offices. By contrast, in November 2010, 6 percent of the voters had voted for Pamela Brown, the Libertarian candidate for lieutenant governor, who was running against two major party opponents and three other minor party opponents. Also in 2010, two Libertarians running for Congress had polled at 8 percent of the vote while running against two major party opponents.

To fight back, the Libertarian Party, along with the Green Party and the Peace and Freedom Party, filed a lawsuit against Proposition 14, which is currently pending in Alameda County Superior Court. The East Bay Libertarian Party (with members in Contra Costa and Alameda counties) has taken the lead in raising the funds to pay the Libertarian Party’s share for the attorneys for this lawsuit. A trial is set for January 2014.

Only eighty-five minor party candidates in the entire nation, in only three states, have run for office under top-two elections in which both a Democrat and a Republican also ran. In all 85 instances, no minor party candidate ever placed first or second in the primary, and thus couldn’t run in the general election — effectively blocking them from electoral participation. Additional evidence will soon be obtained by a scheduled deposition, in which the author of Proposition 14, former state Sen. Abel Maldonado, will be asked about his motives in drafting the measure, which got on the ballot by legislative action rather than an initiative petition.

The LP recently held a lobbying day at the Capitol, which was well-attended. Two other bills had been moving through the legislature to make ballot access even worse. One bill, which is still alive, would make it illegal for the party to pay registration drive workers in order to increase the party’s registration if the workers are paid according to how many new registered Libertarians they obtain. This is a serious threat, because under current law, the party can only retain its place on the ballot if it has approximately 110,000 registrants. Currently, the party has 108,000, but if the requirement rises, a registration drive will be needed.

The other bill has been defeated, thanks to LP lobbying. It would have provided that write-in candidates in the June primary who managed to reach second place, which is easy if only one person files to be on the primary ballot, could still not be on the November ballot unless their write-in total were at least 2,300 write-ins for U.S. House or 120,000 write-ins for statewide office. Fortunately, the California Assembly defeated that bill on May 29 — a surprising turn of events, because a companion bill had passed overwhelmingly a week earlier. Persistent lobbying turned the tide, however. If this bill had been in effect during the 2012 election, there would have been eight races with only one candidate on the November ballot. With no write-in space on that ballot, the voters would literally have no choice whatsoever in single-candidate races.

The Montana legislature has placed a top-two question on its 2014 ballot. Republicans there have openly said that they favor a top-two system because they are tired of having Libertarians on the general election ballot. Libertarian Party leader Mike Fellows is already leading a campaign against the measure.

The Libertarian Party is on the ballot in North Carolina because it managed to poll more than 2 percent of the vote for its gubernatorial nominee, Barbara Howe, in 2012. However her total of 2.12 percent is only slightly higher than the requirement. If she had dipped below 2 percent, the party would now be faced with obtaining 89,366 valid signatures in order to get back on the ballot for 2014. The party has been working hard this year to pass a bill that would lower the petition requirement to one eighth of that number. Party activists have visited all members of the House Committee responsible for election law bills who hadn’t already committed to support the measure. The bill sponsor was informed, however, that his original bill would not be brought up on the House floor. Instead, he amended the bill to provide that the legislature would study ballot access later this year. The bill passed the House in that form, but it has since been sent to a hostile committee in the state Senate. Libertarians and members of other minor parties are now lobbying senators to have the bill sent to a friendlier committee.

The requirement for a party to remain on the ballot automatically in Pennsylvania is the worst in the nation. A party can only have qualified status there if it has a registered membership amounting to 15 percent of the state total. This law is so strict that if it were the law in Utah and Idaho, the Democrats wouldn’t be on the ballot automatically. If it were the law in Massachusetts, Rhode Island, and the District of Columbia, Republicans wouldn’t be on the ballot automatically. The Libertarian Party must therefore petition each year in order to place candidates on the November ballot.

The Pennsylvania petitioning system has a unique provision that places petitioning groups in danger of incurring huge court costs if the petition lacks enough valid signatures. All Pennsylvania petitions are presumed to be valid if the number of signatures submitted is greater than the legal requirement, but if anyone challenges the validity of the petition, the challenge is conducted in state court. In 2004 the Pennsylvania courts started applying court costs against petitioning groups whose petitions are held to lack enough signatures. Ralph Nader was assessed $80,000 in 2004, and the Green Party was charged $86,000 in 2006. The Libertarian Party’s petition was challenged in 2010, and ultimately withdrawn rather than running the risk of incurring such huge court costs.

The LP’s 2012 petition was also challenged, but the party took the risk and prevailed. The court found that our petition for Gary Johnson and our other statewide nominees had collected enough valid signatures. The risk continues, though, for future petitions. The party is currently fighting the Pennsylvania petition challenge system in court, and is also working hard for a bill that, if enacted, would permit the LP to be ballot-qualified based on the number of registered voters we already have. The Pennsylvania Ballot Access Coalition and the sponsor of the bill, state Sen. Mike Folmer, recently joined the LP in holding a town hall meeting to gain support and publicity.

This list of ballot access activism is not comprehensive, but the states listed above are especially dramatic examples of the fight for free elections that is going on across the country.