Amy Bernstein, a traffic court judge in Brooklyn, was heading home from work one night in late April when, she said, a young man carrying a clipboard approached her on the subway platform, asking if she would sign a petition to help place independents on the ballot in New York.
The top of the petition was folded underneath itself, so that the names of the candidates were not visible, Ms. Bernstein said. She asked for more details and told the man she was a judge — at which point he yanked the clipboard away, she said, and asked: “Am I going to get in trouble?”
The petition was for Robert F. Kennedy Jr.’s independent presidential campaign, which is working to collect the signatures needed to secure a spot for him on the November ballot in New York State. The campaign needs 45,000 but is aiming for more than 100,000. Candidates often collect far more signatures than they need in case some end up being invalidated for various reasons.
“At a minimum, it’s misleading,” Ms. Bernstein said of the interaction. “I was just pretty much taken aback.”
More than a half-dozen New York City residents, including two who are journalists at The New York Times and were approached randomly, have described similar encounters with signature gatherers for Mr. Kennedy in Brooklyn over the past three weeks. In each case, the resident was approached by a clipboard-wielding petitioner and asked to support “independent” or “progressive” candidates, or, in one case, to help get Democrats and President Biden on the ballot.
In three cases, the petitioners said that they were being paid for the work, the people who were approached said; in four cases, the petitioners said they had been told by a supervisor not to show or mention Mr. Kennedy’s name. Descriptions and photographs of the petitioners suggest that they are at least four different people. The petitioners themselves could not be identified or reached for comment.
Category Archives: ballot access
“Pritzker signs election bill that would favor Democrats in November”
The Chicago Tribune has this coverage of a new election law in Illinois that changes the rules of ballot access in the middle of an ongoing campaign:
Gov. J.B. Pritzker has signed into law a comprehensive election bill that would give Democrats a significant advantage toward keeping their legislative majorities before any votes are even cast in the Nov. 5 general election.
Democrats already enjoy legislative supermajorities in the Illinois House and Senate thanks to district maps drawn by party leaders following the 2020 federal census that were crafted to minimize Republican opposition.
But the election bill given final approval by Senate Democrats Thursday, a day after the bill passed the House, would further help Democrats maintain control in the next General Assembly.
Under the new law, local political party organizations can no longer appoint candidates to fill out legislative ballots where the party did not field a primary candidate. Previous law allowed the appointment process within 75 days of the primary.
Capitol News Illinois has more. And The Center Square has a piece, “Candidates feel ‘cheated, violated, robbed’ after Pritzker enacts law ending slating.” (The bill does a lot of other things, too, like moving its quite early presidential nomination deadline up a month earlier, and adding three non-binding and unrelated referenda to the fall ballot.)
One can, of course, oppose the idea of “slating” and prefer that candidates petition, in the abstract and as a general matter. But, the reason many candidates did not petition was the fact that they relied on existing rules to allow them to be “slated” by the party for the general election. That rug has been yanked out from under them, leaving a number of uncontested elections in the upcoming election. Cold comfort offered here from one Illinois legislator: “‘A candidate who would want to run for General Assembly seat after the primary will have to run, as they can today, as an independent or a third-party candidate,’ Harmon said.”
While I typically prefer to share stories without a lot of editorializing, I want to take a moment to offer one small observation. I waited for a couple of day to see how other media outlets would cover the story. After all, we are in an era where there is an explosion in journalists who identify as covering the “democracy beat” or looking for a “democracy angle” in stories. I wondered how the Washington Post, the New York Times, the Associated Press, or CNN might cover these stories. After all, they are quite attuned to what local county officials in Nevada or Arizona are doing with respect to counting ballots, or every twist and turn of an election bill in Georgia. How about this? As far as I can tell, there hasn’t been any coverage in these or many other major media outlets of America’s sixth-largest state changing the rules of an election in the middle of the campaign to deprive hundreds of thousands of voters of the opportunity to choose a candidate of their preference, and as a number of candidates who behaved in a way relying on existing laws have lost their opportunity to seek office. But there is still time for coverage, of course, particularly as I imagine litigation is coming.
“Third parties will affect the 2024 campaigns, but election laws written by Democrats and Republicans will prevent them from winning”
Barry Burden for The Conversation.
“Trump: ‘Marco has this residency problem.'”
Marc Caputo for The Bulwark:
COULD IT WORK? Probably. Rubio would have to establish residency or “inhabitance” out of state if he wants a shot on Trump’s ticket. He’s willing to do that, according to those familiar with his thinking, just as Dick Cheney did in 2000 when he moved in July of that year from Texas to Wyoming so that he could join then-Texas Gov. George W. Bush’s ticket. A trio of Texas residents sued in federal court, but Bush-Cheney prevailed.
“It is very hard for anyone to be able to sue and challenge the electors’ votes before the fact, because the candidate could always establish inhabitancy before the electors vote. And after they vote, it is really a matter for Congress to determine,” said Derek T. Muller, a University of Notre Dame law professor and an expert in election law.
Another expert in election law, Ohio State University’s Edward B. Foley, agreed that Congress would ultimately decide the issue of Rubio’s inhabitancy under the Electoral Count Reform Act, which made it harder to successfully object to electoral votes.
“It’s up to Congress to sustain the objection and it takes a majority vote in both chambers to sustain one,” Foley said. “So you tell me the political likelihood that the Senate would disqualify Rubio from being vice president when he was a senator before he ran for vice president. I don’t think this is really enforceable in court. I think this is enforceable only in Congress.”
Foley said he could nevertheless see officials in states like Colorado, which unsuccessfully attempted to block Trump from the ballot under the Fourteenth Amendment’s Disqualification Clause, try to challenge a Trump-Rubio ticket under the Twelfth Amendment….
“Surprise Tactics and Legal Threats: Inside R.F.K. Jr.’s Ballot Access Fight”
As Robert F. Kennedy Jr.’s independent presidential campaign mounts a bruising state-by-state battle for ballot access, he has often credited enthusiastic volunteers and grass-roots backers with driving the effort.
In fact, the operation has become increasingly reliant on consultants and paid petitioners whose signature-gathering work has yielded mixed results and raised questions of impropriety, even among Mr. Kennedy’s fans. In order to get Mr. Kennedy on the ballot in all 50 states, as is his goal, his campaign has deployed a multipart strategy: aggressive legal action, shrewd political alliances and surprise filing tactics meant to slow or prevent challenges.
In most states, Mr. Kennedy, 70, an environmental lawyer and heir to an American political dynasty, must produce thousands of signatures, under rules that are varied, intricate and confusing at times even to the local officials administering elections. The effort has already cost his campaign hundreds of thousands of dollars, and a supporting super PAC at least $2.4 million more, federal campaign finance records show. It has involved a number of professionals who specialize in getting people on the ground with clipboards and petitions, and helping candidates navigate the complicated process. Their success is what will make or break Mr. Kennedy’s campaign.
Will Anti-Abortion Presidential Candidate Randall Terry, on the Constitution Party’s Ballot Line in at Least 12 States, Be a Factor in 2024?
With so much attention focused on RFK Jr., Cornell West, etc., don’t sleep on this news, via Ballot Access news.
If ever there was an election year to move to ranked choice voting for President so that third party candidates don’t affect the outcome between the top two contenders, this would be it.
“Neal Katyal Was Their Resistance Hero. Until They Found Out About New Jersey.”
In 49 of the 50 states, Neal Katyal is known as a stalwart defender of democracy. And then there’s New Jersey.
In the Garden State, Katyal — the Beltway-famous legal combatant against Trump-era assaults on democratic norms — has thrown himself into a very different legal battle: He’s working to restore a voting rule that enables machine-politics bosses to stack the ballot against anyone they don’t favor. A federal judge last month declared the system unconstitutional for the upcoming primary. Now Katyal’s admirers say they’re enraged by their erstwhile ally’s efforts to snatch away their victory.
“We are all amazed and disappointed and all the related words,” said Yael Niv of the Good Government Coalition of New Jersey. “He’s on the wrong side of history.”…
Democracy advocates have long derided the rule as something out of a banana republic, “an unconstitutional governmental thumb on the scale,” in the words of New Jersey Rep. Andy Kim, the Democratic Senate candidate who filed suit against the “fundamentally unjust and undemocratic” system in February.
When Kim’s lawsuit prevailed on March 29, it represented a political earthquake in the state — and set off impromptu celebrations among activists who’d fought the system for years and couldn’t quite believe they’d won.
But instead of joining the celebrations, Katyal joined the other side, filing an amicus brief last Saturday on behalf of the Middlesex County Democratic Organization, one of the state’s venerable local machines.
Katyal declined comment, saying he was busy preparing for arguments in a gun-control case in San Francisco this week. But his filing does not strike the high notes that might be familiar to those who read his anti-Trump book or watched his successful Supreme Court evisceration of the “independent state legislature” doctrine that could have allowed state legislatures to overturn election results.
Nonetheless, the brief makes a coherent argument for the old status quo: The line system, Katyal writes, “makes voting more efficient by allowing primary voters to easily identify and quickly vote for all candidates belonging to a single political organization or affiliating with a single slogan.” According to the brief, it’s about protecting “low-information” voters: “Only political junkies learn enough about each primary candidate to make an informed choice about who should be their party’s nominee for Surrogate, township council, or County Clerk.”
It’s an argument that draws scoffs from attorneys who fought to kill off the system….
“Alabama secretary of state says Democratic convention too late to get Biden on ballot this fall”
Alabama Secretary of State Wes Allen has notified the state and national Democratic parties that the scheduled date of the Democratic National Convention is a few days after the deadline for the party to put its nominees for president and vice president on the ballot for the general election in November.
The Republican National Convention came after the same deadline in 2020, but the Legislature passed a bill to allow ballot access. President Joe Biden’s campaign released a statement Tuesday night in response to Allen’s letter, saying the deadline would not keep the president off the ballot.
“Joe Biden will be on the ballot in all 50 states,” the campaign said. “State officials have the ability to grant provisional ballot access certification prior to the conclusion of presidential nominating conventions. In 2020 alone, states like Alabama, Illinois, Montana, and Washington all allowed provisional certification for Democratic and Republican nominees.”
Allen, who is a Republican, said state law requires parties to provide a certification of nomination for president and vice president no later than Aug. 15….
“Biden could face obstacle getting on Ohio’s ballot, secretary of state’s office says”
President Joe Biden may face complications getting on Ohio’s 2024 general election ballot unless Democrats make changes or the state legislature takes action, according to a letter issued by the office of Ohio’s secretary of state, Frank LaRose.
According to Ohio law, there is an August 7 deadline “to certify a presidential candidate to this office.” But this year’s Democratic National Convention — where delegates officially select the party’s nominees for president and vice president — starts August 19.
Paul Disantis, chief legal counsel for the Ohio secretary of state, laid out the options for getting Biden on the ballot in a Friday letter addressed to Ohio Democratic Party Chairwoman Liz Walters.
“I am left to conclude that the Democratic National Committee must either move up its nominating convention or the Ohio General Assembly must act by May 9, 2024 (90 days prior to a new law’s effective date) to create an exception to this statutory requirement,” Disantis wrote.
“We’re looking into the matter,” Ohio Democratic Party Communications Director Matt Keyes told CNN on Saturday.
“Democratic tactics against RFK Jr. are rattling his campaign”
A billboard truck paid for by the DNC has been circling Robert F. Kennedy Jr.’s campaign events. Protesters picketed his vice presidential announcement rally. The website’s grassroots organizing forum was flooded with fake, provocative event pages. And a job ad from the progressive group MoveOn showed in real-time how progressive organizations are staffing up to confront the independent campaign.
The bombardment against Kennedy has grown so intense that the campaign is crying foul. Democrats are taking third-party threats seriously, and anti-Kennedy antagonism has spiked now that the general election is underway and the independent candidate continues to draw significant support in the polls. Despite the political prowess associated with his family name, Kennedy is a first-time candidate, and is now receiving his first real political vetting….
Kennedy is averaging about 12.5 percent in polls, according to RealClearPolitics. While that’s not enough support to win an election, even single-digit support in swing states could shift the 2024 results. Democrats have so far been the more proactive party to define Kennedy as a spoiler, but former President Donald Trump’s team is starting to turn its attention to Kennedy as well, calling him “a radical leftist.”
“RFK Jr. threatens to sue Nevada over ballot access”
Robert F. Kennedy Jr. is threatening legal action against Nevada over his petition to appear on the ballot as an independent candidate, his campaign said Monday, after CBS News reported that the signatures he had gathered could be invalid because his petition did not include a vice presidential candidate.
The Kennedy campaign claimed that the Democratic Party invented a new rule to invalidate his Nevada signatures. But Nevada’s requirement for a vice presidential candidate to be named in an independent candidate’s petition has been on the books since 1993.
“After successfully collecting all of the signatures we need in Nevada, the DNC Goon Squad and their lackeys in the Nevada Secretary of State’s office are outright inventing a new requirement for the petition with zero legal basis,” said Kennedy ballot access attorney Paul Rossi. “The Nevada statute does not require the VP on the petition. The petition does not even have a field for a VP on it.”
“This corrupt attempt by the Nevada Secretary of State must be enjoined by a federal judge,” Rossi said. “The Kennedy campaign intends to depose the Secretary of State to find out exactly which White House or DNC official concocted this scheme.”
Rossi also linked to an email exchange on Nov. 14 between the campaign and the secretary of state’s office in which the office erroneously said the petition did not require a named running mate.
“Does the vice presidential candidate have to be listed on the petition forms,” a Kennedy ballot access manager asked in the email. “No,” the office staffer replied, referring the campaign to the petition format on page 5 of the state’s petition guide. Rossi also linked to Jan. 9 correspondence from the secretary of state’s office approving Kennedy’s petition.
This differs from Nevada statutes, which say that in an independent candidate’s petition of candidacy, “the person must also designate a nominee for Vice President.”
Documents requested from the Nevada office revealed that Kennedy only named himself, without a running mate, on his candidate petition, in violation of the rules, potentially making the signatures collected in the state void.
The secretary of state’s office acknowledged its staff had misinformed Kennedy….
Federal court relies on Cook v. Gralike to find New Jersey ballot design likely violates the Elections Clause
Rick H. links to the story about the New Jersey ballot design case and a federal judge finding that the “party line” was unconstitutional. The first claim, unsurprisingly, is an Anderson-Burdick balancing test. But I wanted to draw attention to the holding for the second claim, under the Elections Clause. The court found a likelihood of success on the claim that the law exceeds the state’s power to direct the time, place, and manner of holding elections:
The Elections Clause of the United States Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators.” U.S. Const. art. I, § 4, cl. 1. When the regulation involves the time, place, and manner of primary elections, the only question is whether the state system is preempted by federal election law on the subject. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995). However, when the regulation does not regulate the “time, place, or manner,” courts must consider whether the regulation on its face or as applied falls outside that grant of power to the state by, for example, “dictat[ing] electoral outcomes, favor[ing] or disfavor[ing] a class of candidates, or evad[ing] important constitutional restraints. Cook v. Gralike, 531 U.S. 510, 523 (2001). The Supreme Court has struck down such regulations when they “attach[ ] a concrete consequence to noncompliance” rather than informing voters about some topic. Id. at 524. The timing may also add to the gravity of injury, especially when it occurs “at the most crucial stage in the election process – the instant before the vote is cast.” Id. at 525 (quoting Anderson v. Martin, 375 U.S. 399, 402 (1964)).
Here, as set forth above, the State conferred its power to regulate the “manner” of federal elections to the county clerks, including the Defendant County Clerks, by requiring them to design and print ballots. N.J. Stat. Ann. 19:23-26.1, 19:42-2. In Defendants’ view, the Bracketing Structure is a permissible regulation on the “manner” of federal elections. On the record already reviewed, Plaintiffs’ evidence is sufficient to make their showing of a likelihood they will succeed in establishing that the Bracketing Structure and ballot placement is improperly influencing primary election outcomes by virtue of the layout on the primary ballots. This would clearly exceed a State’s right to regulate the “manner” of federal elections. Cook, 531 U.S. at 525 (“the instant before the vote is cast” is the “most crucial stage in the election process”).
Cook v. Gralike involved a state attempting to print on the ballot whether the candidate supported or opposed a term limits pledge. The court here also cites Anderson v. Martin, where a state attempted to list the race of candidates on the ballot. (For a look at a ballot from the era with racial designations, check out my blog post here.) Both cases, in my judgment, are underappreciated in how we think about election administration and ballot design (I write about both in “Ballot Speech“), and it’s interesting to see how they’re used here in the New Jersey ballot design case. (Of course, this only applies to congressional elections, not state elections.)
“Judge kills NJ’s controversial ballot design for Senate primary”
New Jersey’s controversial ballot design that gives party-backed candidates an advantage will be scrapped in the June primary, a federal judge ruled on Friday.
U.S. District Judge Zahid Quraishi granted the preliminary injunction sought by Rep. Andy Kim and two Congressional candidates to eliminate the so-called county line, a feature unique to New Jersey elections that’s given local party bosses inordinate influence over elections. In 19 of 21 counties in the state, candidates backed by county political parties appear in a single column or row, placing them more prominently on the ballot and giving them a nearly insurmountable edge.
The judge ordered the use of office block ballots for the June primary, where candidates are placed together by the office they are seeking. His ruling applies to all offices on the ballot.
The decision is likely to be appealed, but until then it takes away a key tool wielded by political bosses in the state. …
“Democrats Prepare Aggressive Counter to Third-Party Threats”
The Democratic Party, increasingly alarmed by the potential for third-party candidates to swing the election to former President Donald J. Trump, has put together a new team of lawyers aimed at tracking the threat, especially in key battleground states.
The effort comes as challengers — including the independent candidates Robert F. Kennedy Jr. and Cornel West plus groups like No Labels as well as the Green Party — have ramped up their push to qualify for states’ ballots ahead of critical deadlines in the spring and summer.
The legal offensive, led by Dana Remus, who until 2022 served as President Biden’s White House counsel, and Robert Lenhard, an outside lawyer for the party, will be aided by a communications team dedicated to countering candidates who Democrats fear could play spoiler to Mr. Biden. It amounts to a kind of legal Whac-a-Mole, a state-by-state counterinsurgency plan ahead of an election that could hinge on just a few thousand votes in swing states.
The aim “is to ensure all the candidates are playing by the rules, and to seek to hold them accountable when they are not,” Mr. Lenhard said….
State rules limiting ballot access “ensure that the people who are on the ballot have legitimate bases of support, and it’s not simply a vanity project,” Mr. Lenhard said.
Independent candidates and third-party leadership see restrictive ballot laws, and efforts to monitor and enforce them, as anti-democratic, exemplifying the kind of two-party political machinations they say they are trying to combat.
“What are ballot access barriers? They are barriers against free speech,” said Mr. Nader, who has made four third-party runs for president. He described state ballot laws in the United States as “the worst in the Western world, by orders of magnitude.”