Ballot Access: Struggle and Opportunities

By Kimberly Wilder
Green Party of New York State

Winter 2004

Green Party candidates cannot always assume that their desire to run for office will secure them a place on the ballot. In many states, the Green Party does not have automatic ballot status. In most states, election laws, written as they are by Democrat and Republican elected officials, often create unfair hurdles for Green and independent candidates.

In California, for instance, even though Terry Baum was the only Green Party congressional candidate on the primary ballot for her district, the Democrats still managed to knock her off the ballot for the general election.

For the Green Party, campaign season is not just for trying to get candidates elected. Campaign season is when Green parties and Green candidates must run the gauntlet of their particular state’s ballot access rules. The struggle is often not simply to run for office, but to try to win the right to exist as a party and/or achieve automatic ballot access for future years.

It is exciting that the Green Party of the United States (GP-US), still relatively new on the national scene, succeeded in electing so many candidates. GP-US and its various state Green parties also did well in its other campaign season challenge: using the election season and the status of Greens as candidates to win ballot access.

For the Green Party, campaign season is not just for trying to get candidates elected. Campaign season is when Green parties and Green candidates must run the gauntlet of their particular state’s ballot access rules. The struggle is often not simply to run for office, but to try to win the right to exist as a party and/or achieve automatic ballot access for future years.

Each state has its own ballot access requirement. Ballot Access News (on line) and its founder Richard Winger are a great nonpartisan resource to discover what an individual state needs to achieve automatic ballot status. In some states, ballot access is only achieved by vote totals in one race, such as the governor’s race or the presidential race. Other states grant party status based on various formulas such as number of votes in any statewide race, or petitioning of enrollees or other criteria.

In New York, there were two recent Green Party court victories. The overall result of a win by the Green Party of New York State is that it may hold onto its enrollee list, even though it lost automatic ballot status in the 2002 governor race. The outcome of a lawsuit filed by candidates and their supporters was two-fold. First, Greens and other third party candidates may use outside-of-district witnesses to help gather signatures. And, secondly, there is now language in federal election case law stating that rules for major parties and minor parties should be equal because of the Equal Protection Clause of the U.S. Constitution.

Alaska is another state which has had positive news concerning ballot access lawsuits. The Superior Court acted to allow the Green Party to retain ballot status through the 2004 campaign, and to consider giving more options for criteria to become an official party. The ruling was a positive sign, since it depended on the judge’s belief that the Green Party of Alaska (GPA) would ultimately win on the merits. It will be important for this lawsuit in Alaska to create a Green victory, since, due in part to a concerted effort of the Democrats in Alaska to go after Green voters, the GPA Senate candidate could not meet the 3 percent criterion for official party status in the 2004 election season.

In Pennsylvania, too, just one statewide candidate can help achieve ballot status. Green Party candidate for Attorney General Marakay Rogers has succeeded. Rogers’ 67,000-plus votes as a statewide candidate allow the Green Party of Pennsylvania to retain its official party status.

In the case of Green Party of California candidate Terry Baum, what started out as a loss of ballot status for one Green candidate may provide a win for many other voters and candidates. Baum was the Green Party candidate for U.S. House of Representatives in District 8, San Francisco. It is not surprising—since her opponent was Minority Leader Nancy Pelosi (D)—that the powers that be in the major parties tried to stop Baum’s campaign dead in its tracks by denying her ballot access.

It was obvious that Baum received enough write-in votes to be declared the winner in her uncontested primary. That is why the Director of Elections first put Baum’s name on the general election ballot. However, the Democrat Deputy City Attorney tried to deny Baum (or the Green Party) any place on the general election ballot by applying a rule about write-in candidates (that a candidate not only has to win, but reach a certain threshold), and knocking some of Baum’s ballots out due to a technicality.

Even though the rule and the ruling were both very unfair, Baum was not on the ballot for the November 2004 general election. Yet, Baum did receive some good local press attention, raising the issues of the injustice in her community and her state. Baum, determined to achieve ballot access, also took the case to the courts.

With the support of campaign manager Micheas Herman and attorney Arlo Hale Smith, Baum has filed a lawsuit to address the following questions: 1. Can you disqualify a group of ballots that are defective, though defective in a uniform way? 2. Can you have complicated directions on a ballot? 3. If you are hand-counting ballots, can you use any standard other than voter intent? 4. Can you hold ballots to two different standards? 5. May ballot instructions that are difficult to understand function as a literacy test and therefore be unconstitutional under the Voting Rights Act of 1967?

These questions bear rereading, because Baum’s case is presently before the Supreme Court of the United States.

It is unclear if the Supreme Court will follow the case through until the end, or if they will consider somehow redoing the election, where Nancy Pelosi won by 80 percent. Though the case was first flagged before the election, it may be that Chief Justice Rhenquist’s health was the only thing that stood between Baum and a pre-election decision. At press time, the case is still waiting to be heard. It is among only 5 percent of cases brought before the Supreme Court where the court has demanded a reply from the other side. With the questions raised by Baum’s case, it could have a distinct effect on future races and future recounts.

This year, state Green parties and Green Party candidates have had some failures, but many victories in overcoming ballot status hurdles. Through the strategizing of state parties and the determination of candidates, Greens have achieved more electoral power.  In addition, the party is now a player at the Supreme Court level. And, with or without victory, Baum’s and other ballot access struggles became opportunities to educate the public about ballot access through the media, which loves a good fight.

Kimberly Wilder experienced her own ballot access struggles when running for State Senate in New York. She took her case through three levels of state court, pro se. Her story generated much local press coverage about ballot access and can be found at www.votewilder.org.