Preserve Electoral Choice this Election Day

More and more, individuals are proclaiming their independence from party political labels. They eschew major party candidates or vote for them after careful deliberation. Collectively, “independents” are a mismatched, unpredictable and undefined group which is increasingly becoming a major political plurality in the American politic. This new trend has prompted the Democratic Party in New York to attempt to consolidate their power by making it much more difficult for the minor parties in New York to remain on the ballot.

Under a new law passed during the budget negotiations and during the height of New York's COVID pandemic, lawmakers rushed through a bill to require political parties to receive 2% of the vote — or 130,000 votes— whichever is greater, in the presidential or gubernatorial election, in order to maintain ballot status in New York. 

For many years, the media has criticized New York's minor parties.  They have called them spoilers and corrupt, and worse.  The truth is, the minor parties in New York are not the POWER BROKERS that the media and major parties have characterized them as, but instead they push new ideas and have become incubators for progressive thought for the left, right and middle of the political spectrum.  The media pushes this narrative because the major political parties spend billions -- on advertising during election cycles. This year, they will spend more than 6 billion on advertising.  Here is a paper on fusion voting from the Brennan Center and why it enhances electoral choice.

You can read more about how this scam unfolded here. Follow the Money

Here is the text of the portion of their analysis focused on the minor parties but feel free to click the link above to read their entire report, which is focused on the campaign finance portion of the law.  Once again, the information below is from https://www.followthemoney.org/research/institute-reports/small-donor

MINOR PARTIES, COST, AND SEVERABILITY

The most controversial provisions in the new law have been about minor party ballot access. Under the state law that prevailed through 2019, minor parties maintained a position on the state ballot if their candidates received at least 50,000 votes in the previous gubernatorial election. New York is also one of only four states that allow “fusion” voting – a practice that allows a candidate’s name to appear on more than one party’s ballot line and adds the votes on all lines together for the final vote tally. With fusion voting, the 50,000 votes to qualify for ballot access may be earned with votes on the minor party’s line for a major party’s cross-endorsed candidate. In addition, an independent group that has not earned automatic access may petition its way onto the ballot by gathering 15,000 valid signatures, including at least 100 from each of the state’s congressional districts.

During its early meetings, the commission considered abolishing fusion voting. This position was most strongly advocated by Commissioner Jay Jacobs, an appointee of the governor who is also chair of the State Democratic Party. However, Jacobs wrote in his individual statement for the final commission report that the commission turned away from this approach because “it could not be reasonably established that the practice of fusion voting would have any significant detrimental impact on the costs of a public financing program.”[12] Instead, the commission decided to increase the ballot access requirements. Beginning immediately, a party will gain automatic ballot access only if it received at least 2% of the total votes cast in the previous election for governor or president or 130,000 votes, whichever is greater. Independent nominating petitions were tripled to require 45,000 signatures (or 1% of the last gubernatorial vote, whichever is less), with at least 500 (instead of 100) signatures per congressional district. Under the new rules, only the Conservative Party has regularly satisfied the 130,000 vote requirement. The liberal Working Families Party has ranged between 112,000 and 148,000 since 2012, and the Green Party has reached 130,000 only once. No other party comes close.[13]

The net result of the new rules will be to diminish the number of minor parties on the ballot. There is a vigorous debate in New York as to whether this is a good or bad outcome. As an institute with a specific campaign finance expertise, CFI will not comment on the merits of this policy argument. However, we do have the expertise to analyze the key justification the commission put forward for presenting minor party ballot access as an integral part of a campaign finance package.

In the main body of its report, the commission said: “The primary motivation for the Commission addressing party ballot access is to craft a public campaign finance system that remains within the enabling statute’s limitation of a $100 million annual cost.”[14] However, no evidence is offered in the main body of the report endorsed by a majority of the commission to support the claim that the old ballot access rules, in fact, would have threatened the public campaign finance budget. The only such arguments appear in Commissioner Jacobs’ statement, in which he was speaking for himself. His arguments cannot withstand scrutiny. Its central claim appears in the following statement:

The recent example of the NYC Public Advocate special election where 17 candidates made the ballot, 11 qualifying for taxpayer funding is cautionary. While a Special Election that was open to all parties, this could mirror what general elections in the future look like with many parties.

Those 11 candidates, combined, spent over $7,165,000 of taxpayer money. More than half of them received about $550,000 each.[15]

The main problem with this example is that if it proves anything, it runs opposite to the conclusion Jacobs drew from it. As he noted, eleven candidates qualified for public financing. Of these, seven were current or former Democratic members of the New York City Council or State Assembly, one was a Republican member of the City Council and the remaining three were clearly identified Democrats (one of whom is a Democratic party official, one had served in two presidential administrations and one had served as a delegate to the Democratic National Convention). A few of the candidates self-identified as “Democratic Socialists” but all were Democrats or Republicans. The election offers no support to the claim that public financing will artificially underwrite third-party candidacies. Moreover, this is the only empirical evidence anyone on the commission offered on the subject of the potential cost of public financing for minor party candidates under the previous ballot access rules.

Consider these facts. None of the tiny handful of the Assembly, Senate, or statewide candidates below Governor who ran in 2018 as purely third party candidates would have qualified for public funds under the new law. Only one such Assembly candidate would have come close. Most of the general election candidates who carried a minor party label, and who would have qualified, had run and lost in the primaries as Democrats or Republicans. They would have received their public funds while running as Democrats or Republicans and they would have spent most of their money during the major party primaries. Under the new system, similar candidates will again raise and spend their money as Democrats or Republicans and the new ballot access rules will encourage this. There is some possibility that a minor party gubernatorial candidate could qualify for matching funds. In 2018, only one gubernatorial candidate had enough donors to qualify. The other two were not close. However, our $51 million cost estimate includes giving all three enough to qualify and then doubling their money from small donors. While that could conceivably come to a maximum of about $10 million over four years, it is already included within the $51 million. If a few additional minor party candidates qualify for this or any other office, we have built enough new candidates into the assumptions to cover them. Therefore, we estimate the net cost of matching funds for minor parties under the old ballot access rules would be little or nothing beyond what is already estimated. It could be slightly more under some conditions, but not remotely enough to threaten the budget.

This point is not being made to argue one way or the other about the merits of ballot access rules. As noted, this would lie beyond CFI’s expertise. The cost issue becomes important, however, because of the following singular statement in the commission’s final report.

During the Commission’s first meeting, held on August 21, 2019, the Commission voted to package its recommendations on a voluntary public campaign finance system in a single, non-severable product, due to the complexity and inter-relation of the various components of the proposed system. The Commission’s vote at its final meeting, held on November 25, 2019, reflected this packaging of a proposed public finance system into a single recommendation, as presented in the “Recommendations” section of this report. It is the expressly stated intent of this Commission that each of the recommendations made in this report be interpreted as non-severable from any other recommendation, except for the one instance where explicitly provided for in the Recommendations section.[16]

One of the co-authors of this report attended the meeting on August 21. The motion to package all of the commission’s recommendations was sprung on the commission at the beginning of that first meeting with no advance warning. The discussion that followed showed many of the commission’s members to be confused. They understood they were being asked to accept or reject the whole package in a final up or down vote. At no point at this or later public meetings, however, was there any discussion that the commission would be endorsing a claim that the various parts of the package were to be presented to the courts as being legally inseverable from each other.

One could make a case for saying that the new law’s qualification rules and matching rates should not be separated. But we see no basis other than the dubious budget claim made above for treating ballot access and public financing as being logically inseverable – as opposed to being brought together for political convenience. As of this writing, minor parties have brought or are considering lawsuits against the commission. We have no idea how such lawsuits might be decided. However, the report’s declaration of inseverability could mean that a ruling against the ballot access provisions would bring the whole law down. However, there is no substantive evidence to support such a result. To go further, there is no indication that the commission seriously weighed any evidence that would bear on this point. It therefore does not clear the bar that should be expected for judicial deference. As a result, whatever the merits of the policy arguments about ballot access, these provisions can be and should have been considered legally severable and logically distinct.

-End-

 

VOTE your conscience this year.  We hope to have your vote on the Independence Party ballot line for Brock Pierce -- it's a vote for good government and it's a vote for electoral free choice in New York. 

Here are some articles on law referenced above. 

https://www.wamc.org/post/minor-parties-say-nys-budget-provision-unfairly-weakens-them

https://www.nytimes.com/2020/09/15/nyregion/working-families-party-biden.html

https://www.wsj.com/articles/new-yorks-third-party-candidates-aim-for-survival-11601247601