The Supreme Court this week officially docketed a petition for a writ of certiorari in the case Libertarian Party of New York, et al. v. New York State Board of Elections, et al. This means that, sometime after April 17, the Court will decide whether or not to actually hear the case, which challenges a new set of 2020 restrictions on ballot access in New York, arguing they unjustly impact voters’ First and 14th Amendment rights.
A press release from the New York Libertarian Party (NYLP) sums up the tightening of ballot access requirements in its state that led to the lawsuit, in which it is joined by the Green Party of New York: “The threshold for a party to maintain recognized party status and ballot access was increased from 50,000 votes to 130,000 votes or 2% of the vote in the previous gubernatorial or presidential election, whichever is higher.”
This led, the press release points out, to four parties that used to have ballot access in New York suddenly losing it: the Libertarian Party, the Green Party, the Independence Party, and the SAM Party. The NYLP press release points out that of the four, only the L.P., whose 2020 presidential candidate Jo Jorgensen got 60,000 votes in the state, would have kept the party’s ballot access under the pre-2020 lower threshold.
The NYLP’s gubernatorial candidate in 2022, Larry Sharpe, failed to make the ballot under the new rules after gathering 42,000 signatures when he needed 3,000 more to make it—meaning, as the NYLP’s press release put it, that Sharpe “actually got more signatures than any other candidate, and yet he was denied a ballot spot due to the increased thresholds for ballot access.” The signatures requirement prior to the challenged 2020 change was just 15,000. The signatures must be gathered in a 42-day window, making it even harder. Thanks to the new tougher signature requirement and threshold for staying a recognized party, New York saw only two candidates on the ballot for governor in 2022, for the first time since 1946.
The new law made getting on the ballot harder in another way as well, as the petition to the Supreme Court pointed out, as it “quintupled its geographic distribution requirement from at least 100 to 500 signatures from voters residing in each of one-half of New York’s congressional districts.”
In the two parties’ Supreme Court petition, they argue that the question of how ballot access requirements should be constitutionally judged should be ripe for Supreme Court reappraisal: “For forty years, this Court has decided constitutional challenges to state election laws by applying the Anderson-Burdick analysis developed in Anderson v.
Celebrezze…(1983), and elaborated in Burdick v. Takushi….(1992). Yet in several
significant cases, the Court has suggested the analysis to be more deferential to states. This has led to confusion among and inside federal circuits, as this Court recognized 15 years ago in the splintered opinion in Crawford. Since Crawford, the confusion among lower courts has only deepened.”
Roughly, the Anderson-Burdick analysis should require, as the petition quoted Anderson, that the Court “identify and evaluate the precise interests put forward by the State as justifications” for the burdens, and then “determine the legitimacy and strength of each of those interests,” and seriously “consider the extent to which those interests make it necessary to burden the plaintiff’s rights.”
The NYLP’s petition to the Supreme Court argues the lower courts didn’t do that sufficiently in this challenge to New York’s laws. As the third parties assert, the lower courts merely “accepted the State’s proffered justifications at an abstract level of analysis—no matter how weak or pretextual in their specifics—and merely found the thresholds ‘coherent,’ ‘rational,’ ‘reasonable,’ and ‘justified under the “quite deferential” review.'”
The state got away with arguing that the burdens couldn’t be too severe since two minor parties met the new 2020 rules, the Working Families Party and the Conservative Party. But as the petition argues, those are “fusion” parties that merely nominate the same candidates as the Democrats and Republicans, respectively, and thus represent no real voter choice.
The petition also argues that Gov. Andrew Cuomo, who pushed through the new laws, pretty much admitted to the media that his goal was to “eliminate all but what he considered ‘legitimate’ parties” and that “the thresholds were introduced by Governor
Cuomo and passed over a matter of days as part of an emergency pandemic budget bill that the legislature was not capable of seriously debating or voting down.”
Overall, the Libertarian and Green Parties are arguing that the new requirements are unduly harsh and meet no actual legitimate state interest, intended merely to guarantee a monopoly on ballot access for Democrats and Republicans. (A district court considering the challenge earlier believed, on the contrary, that the new restrictions “ensure that candidates appearing on the ballots enjoy a ‘modicum’ of support, thereby assisting in maintaining an organized, uncluttered ballot; preventing voter confusion and frustration; avoiding fraudulent and frivolous candidacies; and assisting the maintenance of an efficient public finance system.”)
The petition says the Supreme Court needs to step in since in Anderson “the Court acknowledged that state legislatures have no incentive to consider minor parties’ interests and ‘more careful judicial scrutiny’ is appropriate….But subsequent decisions have undermined that conclusion, leading to confusion and conflicting decisions among the lower courts.” Hearing this case, the NYLP argues, is a chance to redress that issue, including many complex wrinkles laid out at length in the petition regarding the confusing and often conflicting ways the Anderson-Burdick analysis has been applied by other lower courts to assess burdens on ballot access.
Richard Winger, editor of Ballot Access News, suggested in an email to Reason about the case that the Supreme Court ought to return to a standard established in earlier cases, 1974’s Storer v. Brown and 1977’s Mandel v. Bradley, in which, roughly, state ballot access restrictions should be judged harshly if their effect seems to be to essentially bar third party candidates, clearly the result of New York’s 2020 changes.
The third parties lost with those above arguments at the district and appeals court levels—roughly, the courts just didn’t judge the new barriers to third-party access to be a sufficiently severe burden requiring judicial correction—which is why they are appealing to the Supreme Court for reconsideration.
In the NYLP’s press release, Party Chair Andrew Kolstee complained that “The lower courts have denied our case and our appeals while ignoring and disregarding several of our arguments,” including “that the signature-per-day count is the highest in the nation, making New York the most difficult state for a third party to get on the ballot.”