Room for a View

Access to Grind

by Todd Paul

by zak pullen

New York State’s ballot access laws have changed significantly in the past decade, mostly due to two federal court challenges in the last five years—both of which resulted in rulings that declared the laws unconstitutional. Yet this state is still widely viewed as having the most arcane and tortuous regulations for primary ballot access in the nation. The result is that Democratic and Republican Committee favorites are protected from challenge both from within and without their own parties. And New York voters are offered a limited choice at the polls.
New York’s ballot access regulations don’t even treat the two major parties equally. That’s because they’re the result of combined party rules and state laws. They are adopted every four years by the state legislature and have the force of law. According to Lee Daghlian, director of public information for the State Board of Elections, the Democratic rules alone are set forth in a manual nearly an inch thick, and are “almost impossible to explain.”
Although these rules are written by Democrats and Republicans, they also apply to third party candidates, whose committees have no say in how the rules are formulated.
Until 1911, New York relied on state party conventions to produce nominations. These conventions were controlled by state party leaders, who chose candidates in the proverbial smoke-filled room. The primary election system was in place by 1913, at first with few restrictions; but in time party leaders added various requirements for ballot access, such as increased numbers of signatures on petitions, cover sheets and a system for petition challenges.
According to a bulletin of the Legal Information Institute of Cornell Law School, candidates running in the New York State presidential primaries must secure signatures from 0.5% of registered voters of their party (prior to this year, that figure was five percent) in each of 31 congressional districts—or 1,000 signatures per district, whichever is less. An additional 5,000 signatures must be gathered statewide, and all signatures must be collected during a 37-day period between Thanksgiving and New Year’s Day. There are differences between the rules for Democrats and Republicans; for example, the Democratic rules state that the candidate’s name appears on the ballot, whereas the Republican rules state that the delegate’s name appears. This can be confusing for Republican voters, who may not recognize the name of the delegate who has pledged to vote for their candidate.
Candidates fielded by one of the six state-recognized third parties—the Independence, Conservative, Liberal, Right-to-Life, Green and Working Families Parties—may choose to follow either the Republican or the Democratic primary rules. For independent candidates, different rules apply—they must obtain at least 15,000 signatures from various districts, and file a list of electors. Without a major party structure, this can be a daunting task. “Let me put it this way,” says Daghlian, “It’s not an easy task to put together a team in 31 congressional districts.”
That task is further complicated by New York’s challenge system, which allows the petition signatures collected by any party to be challenged by any other party. Although challenges aren’t as spurious as they once were—at one time, petitions could be thrown out because they were printed on the wrong kind of paper—they still represent a major strategy of warring parties. According to the Internet magazine Salon, this was a banner year for challenges. The George W. Bush campaign challenged signatures gathered by John McCain, resulting in his name being dropped from ballots in 13 districts. In retaliation, Steve Forbes challenged Bush signatures in six districts. Meanwhile, McCain filed suit in court, and New York Eastern District Federal Court Judge Korman, who had also ruled against New York State in a similar 1996 case mounted by Forbes, found in McCain’s favor.
Korman also struck down two state regulations—one requiring signature gatherers to reside in the district where they worked to gather signatures, and another requiring petition signers to list their town of residence rather than their village. In the past, signatures could be invalidated if the signer listed their address as Brooklyn, for example, rather than New York City—despite the presence of a valid and verifiable address. These picayune laws—which Korman found unconstitutional, saying they placed an undue burden on the right to vote—no longer apply.
According to Cornell, “nearly half the country’s election law litigation occurs in New York” as a result of the state’s petition challenge system. This system also requires that candidates acquire substantially more signatures than the law mandates, because it is assumed that a portion will be challenged and thrown out.
While petitions, delegates, challenges and court cases may be easy for major parties with hefty campaign war chests to handle, they can prove an insurmountable obstacle for challenger candidates or those representing lesser parties. A February article on this subject by Robert Spitzer, professor of political science at SUNY Cortland and the author of eight books, appeared in the Internet magazine IntellectualCapital.com under the title, “Welcome to Soviet—Er, New York—Politics.” In it Spitzer states, “only two sorts of presidential campaigns can normally expect to survive New York’s electoral gauntlet—those with a ready-made grass-roots organization and those with lots of money.” Spitzer characterizes New York’s election laws as “carefully crafted to boost the choice of state party leaders and to impose an exceptionally high burden on all other challengers.”
In fact, New York State doesn’t even allow a party to organize, elect officers, or hold a primary or caucus until that party has won 50,000 votes in a gubernatorial campaign. Any of the eight parties (including Democrats and Republicans) currently recognized by the state runs the risk of losing party status at any time if it fails this test. If that were to happen, all the voters enrolled by that party would suddenly become non-enrolled, and the non-party would be required to file petitions once again to get on the gubernatorial ballot (recognized parties don’t have to bother with petitions for state offices). One way to avoid this pitfall and retain party status is to cross-endorse one of the major party candidates—thus the tendency of some third parties, such as the Conservative and Liberal Parties, to endorse Republican and Democratic candidates, presumably until such time as they gain enough political momentum to garner 50,000 votes for a gubernatorial candidate of their own.
Discouraged? So are your candidates. According to the Libertarian Party, New York State averaged only 1.6 different candidates per seat in the 1994 election. Of 211 state office seats, 42 went unopposed, and only 28 third-party candidates competed for the rest. According to a 1995 article in Ballot Access News, no Republican challenger to the Republican Committee’s nominee has ever managed to comply with the ballot access rules in most New York districts.
It is important to note that while a few states have ballot access laws as rigorous as New York’s, many states do not require any petitions whatsoever to gain ballot access.
Due to the successful legal challenges by McCain and Forbes, New York’s laws appear to have begun a slow process of change. “They are designed for the two major [parties], there’s no doubt about that, and I think the federal judge saw it as exclusionary,” says Daghlian. “I think the message was pretty clear to the powers that be in New York.”
Currently, a ballot access reform bill crafted by Governor Pataki’s office has passed the State Senate, though it has failed to gain passage in the Assembly. If signed into law, this bill would allow candidates to put their names on primary ballots if they obtained national media recognition, became eligible for federal matching funds, or obtained 5,000 petition signatures. The bill would also end the practice of placing the names of delegates rather than the candidates themselves on the ballot. “Last year, we made significant improvements to make it easier for candidates to get on the primary ballot,” the governor said in a press release. “But we didn’t go far enough.”
Ironically, Pataki was one of the Republican backers of the petition challenge that sought to throw McCain off the primary ballot earlier this year.