By Richard Winger
Buried within this year’s New York State budget was the creation of a commission whose task is to write a new law on three aspects of the state’s election code: public campaign finance; “fusion” voting; and party qualifications. Oddly, though it’s called the Public Campaign Financing Commission, most of the hearing testimony and press coverage has focused on fusion voting and party qualifications. This may be so because the commission’s informal leader, Democratic State Chairman Jay Jacobs, has not disguised his desire to eliminate the minor or “third” parties in the state.
Jacobs has suggested raising the “threshold” number of votes required by a political party to achieve and maintain ballot status. This is what “party qualifications” means. It answers an important question that all states must face: How does a group of citizens who form a political party get that party listed on the ballot?
Right now in New York, a party must receive 50,000 votes in each gubernatorial election under its own banner. Right now there are six qualified minor parties in the state; the two most prominent are the Conservative Party and the Working Families Party.
The 50,000-vote threshold is approximately 1% of the gubernatorial vote. Jacobs has proposed quintupling the vote requirement to 250,000, or roughly 5%, in both the gubernatorial and presidential races.
Because New York, unlike most states, does not permit minor parties to qualify in any other manner (such as a petition), this would effectively put the minor parties out of existence. It would instantly make New York among the most restrictive states in the nation in terms of ballot access for citizens who are neither Democratic nor Republican. And it is in stark contrast to the trend in other populous states. In the last 20 years, five of the most populous states – California, Texas, Florida, Ohio and Pennsylvania – have reduced barriers to minor party qualification, not raised them.
The commission should also consider the legal problem presented by a 250,000-vote threshold. It will likely be ruled unconstitutional in the federal courts. Dozens of cases hold that overly onerous party qualification rules are unconstitutional. Surely the lawyers on the commission understand that if “equal protection” means anything, it is that “party qualification” rules designed to punish or eliminate minor parties will not stand.
If the State Legislature wishes to ban fusion voting, it should do so in the proper way: pass a constitutional amendment, and refer it to the voters for approval.
The minor parties may annoy the major parties, but democracy is not about limiting ballot access only to those with whom you agree.
Richard Winger publishes the Ballot Access News newsletter and website.