(originally posted by Richard Winger at http://ballot-access.org/2019/12/02/new-york-campaign-finance-reform-commission-report-is-factually-inaccurate/. Reposted with author’s permission)
On Sunday, December 1, the New York Campaign Finance Reform Commission released its report on what the law should be regarding public funding of candidates for state office, and for the definition of “political party”, and the number of signatures needed for statewide independent candidates and the nominees of unqualified parties. Here is the report. It says that it is necessary to make ballot access more difficult, because only candidates with a great deal of support should be allowed to receive public funding. It also says that fewer parties on the ballot will make a less confusing ballot. Finally, it says that changing the definition of party to a group that polled 130,000 votes for both president and governor matches “the longstanding policy of this state for centuries.”
The latter claim is historically untrue. The original New York ballot access law, passed in 1890, said that a statewide independent needed 1,000 signatures, and a qualified party was one that had polled 1% of the vote for any statewide race. There was no gubernatorial election in 1890 (back then gubernatorial terms were 3 years, and sometimes gubernatorial elections were in odd years, such as 1891). But there was a statewide election in 1890 for lesser statewide office, so 1% of the 1890 vote would have only been 9,746 votes.
In 1895, the vote test was changed to 10,000 votes for Governor. At the gubernatorial election of 1896, 1,350,422 votes were cast (not counting blank votes), so the new vote test was easier than it had been. Whereas the old law had been 1%, the new percentage at that time was .74%.
In 1918, the vote test was changed to 15,000 votes for Governor, to take into account that women were voting for the first time in 1918, and the electorate was expected to double. At the 1918 gubernatorial election, 2,131,918 votes were cast, so the new percentage worked out to .70%, virtually unchanged.
In 1922, the vote test was raised to 25,000 votes for Governor. The vote cast in November 1922 was 2,531,378, so the new requirement worked out to .99%.
In 1936, the vote test was raised to 50,000 votes for Governor. The vote cast in November 1936 for Governor was 5,552,514, so the new percentage worked out to .90%.
The Commission wants to raise the vote test to 130,000 votes for Governor, or an even higher amount if that works out to something less than 2%. If it works out to less than 2%, then the Commisison vote test would be 2%. In 2018 the gubernatorial vote was 6,097,368, so the new 130,000 requirement would be 2.13%. The new vote test would therefore be greater than 1% for the first time in New York history.
The Commission’s new statewide petition, 45,000 signatures, would also be the highest in New York history, as a percentage of the number of votes cast. The original requirement of 1,000 signatures was .10%. The 1891 requirement of 3,000 signatures was .26%. The 1896 requirement of 6,000 was .42%. The 1918 requirement of 12,000 signatures was .56%. The 1971 requirement for 20,000 signatures was .28%. The 1992 change, which lowered the petition to 15,000, worked out to .22%. Yet the Commission’s 45,000 signatures, as a percentage of the 2018 gubernatorial vote, works out to .74%, the highest in history.
The Report leaves out some very important points. South Carolina has disaggregated fusion, just as New York does, and South Carolina has eight qualified parties, but the South Carolina general election ballot is very clear and easy to read. It is possible for a state to have disaggregated fusion (which means the voter can choose which party label to support, when the voter votes for a fusion candidate), and a large number of parties on the ballot, without having a confusing ballot. New York also has eight qualified parties.
The Report fails to mention that New York is one of only eleven states with no means for a group to become a qualified party in advance of an election. The Report fails to mention that the existing petition deadline for independent candidates, and the nominees of unqualified parties, is unconstitutionally early, as a result of a bill that passed early in 2019. It is now in May, whereas it had been in August until early 2019. Six states have had their June petition deadlines struck down, so it seems obvious that May is too early. If the Commission is trying to reform New York’s ballot access laws, it is being irresponsible by not correcting existing problems.
The Report fails to mention that the Second Circuit already ruled in 2010 in Green Party of Connecticut v Garfield, 616 F 3d 213, that if a state has public funding, it is constitutional for it to make it far easier for candidates who are nominees of the Republican and Democratic Parties to get that funding, than it is for anyone else. New York is in the Second Circuit.