“The hardest thing I’ve ever seen the Democrats fight for is to keep a disabled Marine combat veteran off the ballot.”
– Matthew Hoh, Green Party candidate for U.S. Senator in North Carolina
The last week of June 2022 brought more strikes against an American democracy already in deep crisis. Democrats blocked access to the ballot for the Green Party of North Carolina and seven independent gubernatorial tickets in New York.
Meanwhile, the Republican-majority U.S. Supreme Court agreed to hear the Moore v. Harper case on North Carolina gerrymandering in which the court is likely in 2023 to affirm the “independent state legislature” doctrine. That formerly fringe legal theory claims that the U.S. Constitution’s election clause empowers state legislatures to administer federal elections as they see fit, no matter what state governors, state constitutions, or state courts say. It would enable state legislatures to rig elections through partisan gerrymandering, partisan voter suppression, and partisan vote counting. Republican-controlled state legislatures could name their own Electoral College slates if they lose their states’ popular vote in order to steal the 2024 presidential election.
These blows against free and fair elections follow voter suppression laws passed by Republican-controlled states in 2021 and more laws passed in 2022 to enable them to steal elections. Undisclosed “dark money” donations from superrich right-wingers are funding a national movement to put biased Republican partisans in charge of election administration and vote counting. Honest election administrators are being intimidated into resigning by harassment and threats of violence by pro-Trump militants. Republican leaders persist in calling the armed January 6 coup attempt a case of “legitimate political discourse.”
Congressional Democrats have failed to use the power they have to stop these developments. They could have used their majorities to pass voting rights and election protection laws that would federally pre-empt Republican voter suppression and election subversion laws in the states. They could use their power now to preemptively nullify the likely Supreme Court affirmation of the independent state legislature doctrine. They could have used their 51-vote majority, including Vice President Harris as the tie-breaker, to change Senate rules to lift the filibuster in order to pass voting rights and election protection legislation (not to mention bills for abortion rights, climate justice, the care economy, and Supreme Court reform).
While the Democrats have been feckless in fighting the Republicans’ assault on democracy, they have been aggressive in carrying out their own assault on democratic elections by suppressing third parties. Ballot access is a voting rights issue. Voters should have the right to vote for who they want once they have their ballots.
Suppressing third parties suppresses the vote of third party supporters. Third parties bring more voters out. We know from 2016 exit polls that 61% of Green presidential candidate Jill Stein’s voters and 55% of Libertarian candidate Gary Johnson’s voters would not have voted if they had not been on the ballot. That was 3.4 million voters in 2016. Party suppression is a form of voter suppression. It is what authoritarian governments do. It is what the Democratic Party is doing in the U.S.
Passive Aggression in North Carolina
On June 30, the same day as the Supreme Court agreed to take the Republicans’ Moore v. Harper case out of North Carolina, the Democratic majority on the North Carolina Board of Elections voted to reject the Green Party’s ballot access petition despite the fact that the state’s county boards of elections had verified that the Greens had more than enough signatures. The county boards validated 15,953 of the 22,521 signatures the Greens submitted, which was 2,088 more than the 13,865 good signatures needed to qualify for the ballot. The North Carolina Green Party will see the North Carolina Board of Elections in court over this decision, but for now it means that Matthew Hoh, the well-known former Marine and antiwar activist running for U.S. Senate, and other Green Party candidates are not on the ballot.
The online virtual hearing (video: 1:05-1:46) on the Green petition was a nauseating display of passive aggression by the Democrats against the Greens. The board’s Democratic executive director made a power-point presentation alleging that some of the signatures the Greens submitted appeared to be fraudulent. She said that some signatures had incomplete identification information or were from people who had signed twice. Those problems disqualify signatures in every ballot access petition with thousands of signatures. They are not indicators of fraud if they are a small portion of the signatures, as is the case here. Some of the petition sheets look to be forgeries done by employees of petitioning firms the Greens had contracted and soon fired for poor performance. Petitioning firms accounted for only 1,472 of the signatures and only 624 of those were validated.
After the executive director’s presentation, the Democratic board chair, Damon Circosta, claimed it was his “personal desire to see this new party on the ballot,” but then said that he could not “in good conscience” vote to certify the Green petition given the cloud over some signatures. The Greens’ election lawyer, Oliver Hall, asked if any of the 15,953 validated signatures were among the signatures the state board was investigating. Circosta responded that he “didn’t want to get into the details of a criminal investigation.” When Hall said to Circosta that he had not answered his question, Circosta called him out of order and ordered that Hall’s microphone be muted. The passive-aggressive authoritarianism of Circosta in this exchange can be seen in this 2-minute video clip.
The whole hearing was set up as a passive-aggressive way for the Democrats on the board to keep the Greens off the ballot without directly voting to do so. The staff recommendation reported by the executive director was to table the decision on the Green Party petition so the staff could continue to investigate signatures until the board’s next meeting. Tabling the decision was a way to deny the Greens ballot access without voting to do so because the deadline to submit a party’s nominations was the next day, July 1. The staff had already had a month to investigate signatures. The Greens had submitted their petitions to the county boards by a May 17 deadline. The counties were supposed to send their validations and rejections of signatures to the state board by June 1, a deadline many failed to meet. Though the counsel for the state board had assured the Greens that they would have time to do their nominations, the Democratic-majority board waited until June 29 to announce there would be a June 30 hearing, thus putting the Greens right up against the July 1 deadline for nominations. By passively tabling a decision on the Green Party ballot petition, the Democrats hoped to aggressively prevent certification without appearing to do so with a direct vote. The Republicans on the board spoiled that scheme with a motion to certify the Greens for the ballot. So the Democrats had to go on record as voting against certifying the Green Party in a 3-2 party-line vote.
Aggressive Aggression in Wisconsin
This kind of partisan manipulation of the process and the suppression of Green speakers at hearings by boards of elections is all too familiar to the Green Party. In August 2020, the Wisconsin Elections Commissions failed to certify the Green Party presidential ticket for the ballot in a party-line 3-3 vote. A prominent attorney and Democratic donor, Allen Arntsen, had filed a challenge based on the fact that the petitions had two different addresses for the Green vice presidential candidate, Angela Walker, who had moved during the petitioning period to a new address in her hometown of Florence, South Carolina. The Green petitioners had followed the instructions given to them by the elections commission staff to have Walker’s current address on petitions at the time they were signed. The Greens did this, collecting over 6,000 signatures and submitting the maximum allowed 4,000 signatures. The commission staff found that 3,680 signatures were valid, well over the 2,000 needed for a ballot line.
The Democratic chair of the meeting, Ann Jacobs, ruled at the beginning of the meeting that the Greens could present no evidence. They could only argue the law. That surprised Andrea Merida, the campaign manager for the Green presidential ticket. She represented the candidates at the hearing and had been led to believe in communications with commission staff that she would be able to document Walker’s addresses at the hearing. The insufferable two-and-a-half hour hearing (video: 3:10 to 5:38) was a bizarre divorced-from-reality ordeal. The Democratic and Republican commissioners argued about whether the challenger or the Green petitioners had the burden of proving their claims about Walkers’ addresses while the real facts of her address were not allowed to be documented. The challenger provided no proof that Walker’s addresses were incorrect. Wisconsin law puts the burden on the challenger to establish a signature’s insufficiency. But Jacobs ruled that the burden of proof was on the Green petitioners to defend Walker’s addresses, but wouldn’t let the Greens’ representative provide documentation that Walker’s addresses on the petitions were correct.
Jacobs chaired the meeting with a heavy hand, repeatedly denying Merida’s requests to speak and finally threatening to cut her off from the online meeting if she spoke again. The Democratic commissioners said that if Merida were allowed to present evidence of Walker’s addresses for the early and later periods of the petition drive, it would only be inadmissible “hearsay.” When a Republican commissioner asked if they could get Walker into the meeting to give sworn testimony about her addresses for herself, Jacobs ruled that would not be allowed.
After the election commissions’ ruling, the campaign appealed to the Wisconsin Supreme Court for relief, reluctantly settling for a Republican lawyer because all the Democratic and independent election lawyers the campaign could find in Wisconsin would not respond to requests to take the case, apparently afraid of retribution from a Democratic Party intent on keeping the Greens off the ballot. The Wisconsin Elections Commission’s executive director told the court that it would be “catastrophic” to put the Greens on the ballot because absentee ballots had already been mailed. Jacobs told Slate, “I don’t yet know how we’ll handle the ballots that have already been mailed out.” The next day the Milwaukee Journal Sentinel reported that it could not find any local election administrators who had mailed out absentee ballots. But liberal media platforms like Business Insider, Democracy Now!, and The Rachel Maddow Show continued to run with the false narrative that the Greens were in cahoots with Republicans to stop the mailing out of absentee ballots that in fact had not been mailed. Conspiracy monger Rachel Maddow declared that the Greens’ court appeal for ballot access “really is a Republican Party op.”
After dawdling for 11 days after the Greens’ appeal was filed, the Wisconsin Supreme Court finally issued its ruling. With one Republican joining the three Democrats, the court ruled 4-3 that the Greens’ appeal was too late because the deadline for mailing absentee ballots was now only a few days away. The ruling did not address the facts or the law in the case, which the dissenting opinions protested were obviously in the Greens’ favor. The Green Party presidential ticket did not appear on Wisconsin ballots in 2020.
Intimidation of Petitioners
During the North Carolina Board of Elections hearing on the Green Party ballot access petition, a Republican board member wondered why the Greens’ signatures were getting such close scrutiny when not a single signature on any of the 2020 presidential ballot access petitions in North Carolina had been examined by the state board of elections. The answer is that the Democrats wanted the close review in order the block ballot access for the Green Party. As the Raleigh News and Observer and WNCN-CBS reported on the same day as the Green ballot hearing, that the Democratic Party had been soliciting signers with some success to notify the Board of Elections that they want to remove their names from the petition. It came out during the hearing that Democratic lawyers had filed complaints about signatures with the county and state boards of elections and urged the state board to delay determining the sufficiency of the Green petition.
Petition signers were receiving phone calls, text messages, and home visits, often many times a day. Even Matthew Hoh, the Green U.S. Senate candidate, was not spared. He released the text message he received urging him to withdraw his signature because “the Green Party takes votes away from Democrats, which helps Republicans win.” When Hoh asked what organization the texter represented, he got no reply. Tony Ndege, a co-chair of the North Carolina Green Party, received a phone call (audio) from someone claiming to be from the Green Party and urging Ndege to remove his signature. When Ndege asked the caller, “If you’re with the Green Party, why are you asking to remove it,” the caller hung up. In one home visit that was recorded on video, the visitor said she was working for the North Carolina Democrats. But in another, the visitor claimed they were from the Board of Elections. The Green Party is collecting examples of this fraud and bullying of petition signers to strengthen its ballot access case in court. Instead of a criminal investigation of alleged Green signature fraud, a criminal investigation of harassment and fraud by the Democratic Party against the state’s voters and the Green Party is warranted.
To be sure, the Republicans also intimidate and defraud voters. The same week as the impersonation of election officials by Democratic activists was exposed in North Carolina, Republicans were exposed as misrepresenting themselves as election officials in a scheme trickery and intimidation of voters in a Black neighborhood in Houston, Texas. In March, a group of “Stop the Steal” Republicans was sued by the NAACP, Mi Familia Vota, and the League of Women Voters for making armed home visits to Black and Latino voters in Colorado and other states in which they accused people of casting fraudulent ballots as they took photos of their homes. But Republican wrongdoing is no excuse for Democrats doing the same kinds of voter harassment.
The Elias Law Group is spearheading the North Carolina campaign to deny the Green Party ballot access on behalf of its client, the Democratic Senatorial Campaign Committee. The elections board staff’s power-point presentation at the Green Party petition hearing revealed that Elias lawyers had submitted three letters to the state board and four complaints to county boards about the Green petition. These materials were submitted by an operative of the North Carolina Democrats and his lawyer from the Elias group.
The founder of the Elias Law Group, Marc Elias, is the top elections lawyer for the Democratic Party, having represented the Democratic National Committee, Democratic Senatorial Campaign Committee, Democratic Congressional Campaign Committee, Democratic Governors Association, the Democratic congressional leadership, many Democratic members of Congress, and the presidential campaigns of John Kerry, Hillary Clinton, and Kamala Harris. In recent years, he has had a high profile in defeating the 65 Trump “Stop the Steal” lawsuits alleging fraud in the 2020 presidential election and in suing to stop Republican state laws for voter suppression and election tampering. But Elias also has a history of trickery and bullying to block ballot access for independent left challenges to the Democrats going back to the assault on Ralph Nader’s ballot access in 2004 when Elias was general counsel for the Kerry campaign. It turns out that Elias is not really for democracy, just Democrats.
In 2004, the Democratic Party mobilized over 53 law firms and 90 lawyers to file 24 suits in 18 states along with five complaints to the Federal Elections Commission within a 12-week period between June and September, all aimed at removing Nader from the ballot and draining his campaign of resources. The lawsuits were frivolous. Their purpose was “to neutralize [Nader’s] campaign by forcing him to spend money and resources defending these things” according to Toby Moffett, the former Democratic congressman and corporate lobbyist who helped orchestrate the ballot access suppression campaign. Nader sought relief in federal courts in eight ballot access lawsuits, but was denied in all of them. Richard Winger, the publisher of Ballot Access News, has reviewed in the Fordham Urban Law Journal how “the federal courts which heard these cases defied precedent, and made errors of both fact and law.”
Nader petitioners and petition signers were harassed. Petition signers were bombarded with phone calls and home visits to get them to remove their signatures from petitions. Petition gatherers were called by lawyers who told them them would be guilty of a felony if any of the information on a petition sheet was wrong. Private investigators made home visits to petition gatherers to deliver this threatening message. Terry McAuliffe, the chair of the Democratic National Committee, told Nader personally that he approved of these efforts.
After the election, Nader sued the Democratic National Committee seeking compensatory damages, punitive damages, and injunctive relief to stop the Democrats’ ballot access suppression. By the time the case made its way to the DC Circuit Court of Appeals in 2009, the court ruled against Nader on the grounds that the statute of limitations had run out.
In 2020, Richard Winger warned the Green Party presidential campaign that Marc Elias, then still head of the political law practice at Perkins Coie, the most powerful Democratic law firm in Washington, D.C., was at it again quarterbacking efforts to block or remove the Green Party from state ballots.
Montana in 2020 was another case of the Democrats hectoring Green Party petition signers into removing their signatures. In this case, they succeeded in wiping the Green Party and its candidates off the ballot months after its petition had been certified. The Green Party had been thrown off the ballot by Democratic efforts in 2018 as well. In both 2018 and 2020, the Secretary of State had certified enough valid signatures for ballot access and had conducted a primary for the party. In 2018, the Green petition had 7,299 signatures, well over the 5,000 required. But the Democrats challenged in court and got a ruling that the petition lacked sufficient good signatures in 34 of 100 state house districts under a distribution requirement of signatures of at least 5% of the last gubernatorial vote, which created a wide disparity of between 55 and 150 signatures across districts of equal population due to differences in voter turnout. In 2020, the Green petition was over 10,000 signatures and initially satisfied the distribution requirement. But the Democrats brow-beat petition signers with phone calls and home visits until about 560 signers to withdrew their signatures, which brought the Greens below the signature distribution requirement. Many who withdrew their signatures said they did so just to stop the harassment. Even though Montana law has no provision for petition signers to remove their signatures after the submission deadline, in late August 2020 the state supreme court nullified the Green petition six months after it had been validated and threw the Green candidates who had won their primaries in May off the ballot.
The Greens had already sued in 2018 on behalf of the voters of Montana and the Green Party against the unequal signature requirements across districts, arguing that it unconstitutionally violated the one person, one vote standard derived from the equal protection clause of the 14th Amendment. In November 2021, the 9th Circuit U.S. Court of Appeals finally ruled in favor of the Greens’ complaint that the unequal distribution requirement was unconstitutional and ordered the Green Party back on to the ballot in 2022. In March 2022, the U.S. District Court approved a settlement with the Montana Secretary of State restoring the Green ballot line for 2022. But the damage of wiping the Greens off the ballot in 2018 and 2020 had been done.
The Democrats’ crusades to intimidate petition signers and petition gatherers poisons participation in the political process for many voters. Who wants to be on the receiving end of badgering and threats just for signing or collecting signatures for a ballot access petition? As someone who has gathered signatures for many ballot access petitions, I can tell you that many people will not sign for exactly that reason. It is an assault on voting rights. As Richard Winger said of the Democratic onslaught against Nader’s ballot access in 2004, “Democratic efforts to keep Nader’s name off the ballot do interfere with voting rights….This type of activity is virtually unknown in other advanced democracies.…it would be considered unspeakably unethical.”
Third-Party Extermination in New York
On June 28, two days before the North Carolina Board of Elections voted down the Green Party’s ballot access petition, the New York Board of Elections voted down the petitions of seven parties seeking ballot access for their gubernatorial tickets, including the Green, Libertarian, Unite, Freedom, New Visions, Diversity, and Parent parties. It later ruled against an Independence Party petition as well. It was the minions of Jay Jacobs, chair of both the State and Nassau County Democratic Committees, who filed objections to the Green Party petition with a Nassau County Democrats return address.
Only the Democratic and Republican candidates, who didn’t have to collect any ballot petition signatures, are now on the ballot. 2022 will be only year except 1946 with only the Democratic and Republican candidates on the ballot since the official ballots were first issued by the state in 1891.
The Green and Libertarian parties had won a ballot line in 2018 for four years by receiving about double the required 50,000 votes. They had expected in 2022 as ballot-qualified parties to nominate their statewide candidates on to the ballot by convention without petitioning. But in April 2020, a ballot access exclusion law was rammed through as part of the state budget package during the covid lockdown with the state legislature meeting remotely online. Now-disgraced Governor Andrew Cuomo and the Democrat’s state party chair Jacobs led the charge. When the proposed new law first leaked out, the New York Times called it “The Democrats’ Secret Plan To Kill Third Parties in New York.”
The new ballot access restrictions doubled the frequency that parties must qualify for the ballot from every four years in gubernatorial races to every two years in both presidential and gubernatorial races. The votes needed to secure a ballot line were increased from 50,000 to 130,000 or 2%, whichever is greater. In the 2020 presidential race, 2% came to over 173,000 votes, or 3.5 times more than the old requirement. As a result, the Greens, Libertarians, and every other party that did not cross-endorse Biden or Trump lost their ballot line.
The petition signature requirement to get back on to the ballot was tripled from 15,000 to 45,000. The signature distribution requirement was increased five times from 100 to 500 signatures in half of New York’s 26 congressional districts. These signature requirements are the most difficult in the nation because there are only 42 days to collect the signatures. Most states have no time limit on collecting ballot access petition signatures. Richard Winger has noted that “in 2020, not one independent candidate, and not one minor party, successfully completed any petition anywhere in the nation that exceeded 5,000 signatures, for any office.”
Unlike Montana, North Carolina, Wisconsin and 34 other states, New York has no way for a party qualify for the ballot by petition. A party has to first petition to qualify its gubernatorial or presidential ticket for the ballot and then receive enough votes in the election. Under New York’s disaggregated fusion voting, the Conservative and Working Families parties retained ballot lines in 2020 by nominating and then receiving enough votes for Trump and Biden respectively on their ballot lines. The Conservative Party routinely cross endorses Republicans and the Working Families Party routinely cross endorses Democrats. The result after the 2020 ballot access exclusion law is a farcical parody of multi-party democracy in which only two candidates appear across four party ballot lines in most elections.
Cuomo and Jacobs both said after the 2020 election that eliminating all but the Conservative and Working Families parties was their objective all along. Jacobs claimed the goal was to eliminate the “transactional parties.” But the transactional parties are the fusion parties that cut quid-pro-quo deals with the major parties in return for their ballot lines. The Green Party runs its own candidates independently of both major parties.
The obstacles to ballot access for third parties that attempt to challenge the two-party-system of corporate rule are many: crushingly high petition signature requirements, intimidation of petitioners, excluding petitioners from speaking and presenting evidence in hearings, partisan voting on ballot access cases by party hacks on boards of elections and court benches, and a corporate media that couldn’t care less about third party ballot access until there is controversy around a third party petition.
Since most democratic countries have parliamentary systems without an independently elected chief executive, to see how anti-democratic and exclusionary ballot access requirements are in the U.S. we can compare the signature requirements to run as an independent for the House of Representatives to the signatures required for independents running for the national legislatures of other countries.
To run as an independent for the House of Commons in the U.K., it takes 10 signatures. It takes 10 signatures for the Lok Sabha, India’s lower house of parliament. In New Zealand, it takes two signatures to run as an independent for its unicameral parliament. It takes 100 for Australia’s House of Representatives and 100 for Canada’s parliament (and only 50 in Canada’s more rural election districts). For Germany’s parliament, the Bundestag, it takes 200 signatures to run as an independent.
But to run as an independent or new party candidate for the House of Representatives in the United States, it takes thousands or tens of thousands of petition signatures in most states to get placed on the ballot. In New York, it takes 3,500 signatures; over 5,000 in Ohio; over 7,500 in North Carolina; 10,400 in Florida; over 15,000 in Arizona and Illinois; over 20,000 in Georgia and Oklahoma; over 30,000 in Alabama; over 40,000 in Indiana. Most other states are in the 1,000 to 5,000 range.
In New York, the Green Party is proposing a bill to return to the pre-2020 standard for statewide independent nominations of 15,000 signatures in 42 days. Ironically, the Greens are proposing to return to the most difficult petitioning standard for a comparable office we have been able to find outside the United States, which obtains in Putin’s Russia, where it takes 15,000 signatures in 45 days to run as an independent for the State Duma, the national parliament, from one of Russia’s 85 regions that are comparable to our states. As the Moscow Times has noted, that standard is “a high bar that has dissuaded all but a handful of contenders from running.” In shopping the bill around to Democratic state legislators and their staff, we have joked, “We just want to get New York back to the Putin standard.” That crack elicits chuckles and acknowledgments that New York’s ballot access law is unreasonable. But no legislator has been willing yet to risk the wrath of Jay Jacobs and Kathy Hochul while they are running for re-election in 2022.
An inclusive democracy would let the voters decide among candidates, not restrict their choices through exclusionary ballot access laws. The Democratic “socialist” left in New York has been silent about the state’s new ballot access exclusion law. Progressives in Congress are also missing on the question of reasonable ballot access. The last decent bill for fair ballot access was the Fair Elections Act introduced by Rep. John Conyers in 1989.
A progressive pro-democracy agenda would fight to replace the exclusionary single-member-district, winner-take-all system with proportional representation in Congress. Every political viewpoint is currently excluded from representation except the plurality winner in a congressional district. It is not only voters for third parties like the Greens who are denied any representation. Democrats in majority-Republican districts and Republicans in majority-Democratic districts are also denied representation. Over 90% of House districts are uncompetitive one-party districts where one or the other major party dominates and incumbents are untouchably entrenched. You can vote and vote in election after election and it won’t change the representation. Why even bother to vote when the outcome has been fixed by partisan gerrymandering?
Proportional representation would render gerrymandering impossible because every party would get its proportional share of representation based on its vote in multi-member districts. The Fair Representation Act would require proportional ranked choice voting in multi-member districts for the House and single-member ranked choice voting for Senators. But it has been languishing in the House since it was first introduced in 2017. Currently it has only five co-sponsors from the Congressional Progressive Caucus and none from The Squad.
The only Republican Presidents in the 21st century were first installed in office by the Electoral College after losing the popular vote. To prevent this from happening again – and we came close in 2020 – one would think that Democrats and especially the party’s progressives would be fighting to replace the Electoral College with a ranked choice national popular vote. Making it a ranked choice vote would eliminate the “spoiler” problem that Democrats use to rationalize their efforts to stop Green Party ballot access. No bill has been introduced for a ranked choice popular vote for President, although a draft bill to do that without requiring a constitutional amendment has been published in the Harvard Law and Policy Review.
American democracy in crisis due to the Republican assault on voting rights and fair elections and the Democrats’ failure to pass federal voting rights and election protection legislation. Meanwhile, both major parties continue to support onerous ballot access laws and the single-member-district, winner-take-all system that methodically excludes third parties from their fair share of representation in government. That is why the Green Party continues to run the gauntlet of Kafkaesque ballot access obstructions in order to field candidates who will fight for an inclusive multi-party democracy based on full voting rights, honest elections, reasonable ballot access, ranked choice voting, and proportional representation.
Howie Hawkins was the 2020 Green Party candidate for President.