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Second Circuit Keeps New York Ballot Rules in Place

By Nina Pullano

Originally published on Courthouse News.

MANHATTAN (CN) — New York standards dictating which political parties are listed on the ballot will remain in place while a statewide party fights against the recently enacted measures, the Second Circuit ruled Wednesday. 

Under the rules, a group must receive 130,000 votes, or 2% of all votes, to maintain its party status, with that support measured every two years, based on the most recent presidential or gubernatorial election. U.S. District Judge John G. Koeltl refused last fall to enjoin the ballot rules, prompting the Serve America Movement Party of New York to appeal.

Wednesday’s decision says the party is unlikely to succeed on the merits of its First Amendment claim, and that the injunction was properly denied in the Southern District of New York. 

“The burden imposed by the presidential-election requirement is (1) not severe and (2) justified by the State’s interest in uncluttered ballots, effective electoral competition, and the preservation of resources dedicated to public financing of elections,” U.S. Circuit Judge Michael Park wrote for a three-judge panel that heard oral arguments in December. 

“New York law provides reasonable avenues for ballot access to organizations that do not participate in the presidential election,” added Park, a Trump appointee. 

Park noted that the goal of preventing voter confusion and preserving public funds help to justify New York’s laws. He also pointed out that the state will match funds raised by candidates after the 2022 general election. 

“According to the state, more minor political parties will mean more public dollars spent on unpopular candidacies,” Park wrote. “That is in part because matching funds are used in primary elections and only political parties have primary elections, and it is in part because only those candidates appearing on the ballot will be eligible.”

The Serve America Movement of New York is a one-state party, but organization chapters exist in other states. The movement was founded in 2017 by Morgan Stanley lawyer Eric Grossman. 

Under old laws, the New York branch of the organization was a recognized political party. It lost its status after the 2020 election when it declined to pick a presidential candidate. 

“We fought for, and won, ballot status — and then they changed the rules on us,” said Michael J. Volpe, chairman of the Serve America Movement Party of New York.

Volpe, who was the party’s candidate in 2018 for lieutenant governor, said in a phone interview Wednesday that, “fundamentally, I’m disappointed for New Yorkers.”

Minor parties are “meant to give voters a choice,” Volpe said, “and what we have here now is a decision that continues the incumbency power that we see from the Democratic and Republican Party in the state of New York.”

“We’d like to see more choices — and more election reform — and not less,” he added.

Volpe is the named plaintiff in the underlying complaint, which names Governor Andrew Cuomo and the state Board of Elections among the defendants. As complaint asserts, the party “believes that our electoral system is broken and that the two main political parties are focused solely on defeating each other, rather than serving the people.”

The party argues that a “rigid ideological spectrum” fails to reflect the country’s “rich diversity of beliefs and opinions,” and that being required to choose a major party candidate is “repugnant to the Constitution and the laws of the United States.” 

On appeal last year, attorneys for the group said that other third-party groups, like the Conservative Party and Working Families Party, met the threshold in 2020 only because they endorsed one of the two major political candidates. 

Presidential candidates who didn’t represent the two major parties, including Joe Jorgenson, Howie Hawkins and Kanye West, all “failed spectacularly” to meet state party support benchmarks, said attorney Eric Stone. “None of them, even collectively, got 2% of the vote.” 

Stone, an attorney at Paul Weiss, said that, because his clients represent New Yorkers “from Buffalo to Montauk,” they won’t push back against being required to make a showing in state gubernatorial races — even though “nosebleed high” requirements will likely kill smaller parties. 

Denying that state ballot laws are too harsh, attorney Elliot A. Hallak, who represents the New York Board of Elections, noted that five other states use the presidential election as a yardstick for party support. Some states require vote percentages as high as 20%.

“The reality is there’s nothing unusual about New York’s party status law,” said Hallak, of the firm Harris Beach. Because the presidential race garners the most interest and votes, he said, it is “really the best measure of the party’s true support.” 

Before the 2020 election changes, New York had not updated its election laws in 85 years, Hallak said. 

Neither Hallak nor Stone immediately responded to requests for comment. 

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