Second Circuit Hears Appeal Over New York Ballot Access

Voters line up in front of the Yonkers Public Library in Yonkers, N.Y., on Oct. 24, 2020, the first day of early voting in the presidential election. (Mark Vergari/The Journal News via AP)

MANHATTAN (CN) — While a state election law complaint proceeds in federal court, a New York political party asked a circuit panel to block new rules requiring it to pick a presidential candidate to gain ballot access. 

In front of three judges for the Second Circuit, attorneys for the Serve America Movement Party of New York argued that the government is trying to compel speech by making a state-wide party nominate a presidential candidate to be included on the ballot. 

The Serve America Movement Party of New York became a recognized political party based on previous New York laws, but after the 2020 election, lost its party status due to the new rules. 

Under the new laws, the party would have to receive 130,000 votes, or 2% of all votes, to maintain its party status. Support is assessed every two years based on the most recent presidential or gubernatorial election, beginning with last month’s election. 

Giving context to the new requirement, U.S. Circuit Judge Robert D. Sack asked the party’s attorney Tuesday whether the Working Families Party had met the threshold in 2020. 

It did, said Eric Stone of Paul, Weiss, Rifkind, Wharton & Garrison, but only because it chose President-elect Joe Biden as its top candidate. Similarly, the Conservative party picked President Donald Trump. 

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, Stone said. “None of them, even collectively, got 2% of the vote.” 

The Serve America Movement is a one-state party, despite organization chapters existing in other states. The movement was founded in 2017 by Morgan Stanley lawyer Eric Grossman. 

Because the party represents New Yorkers “from Buffalo to Montauk,” it does not contest being required to make a showing in state gubernatorial races — despite requirements that are “nosebleed high” and that will likely kill smaller parties, Stone said. 

The presidential candidate requirement is different, however. “That is compelled speech, and it is unconstitutional as applied,” Stone said.  

In its underlying complaint, the party asserts that it “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.”

Attorney Elliot A. Hallak, representing the New York elections board, contested that state ballot laws are exceptionally harsh. Hallak, of the firm Harris Beach, noted that five other states also use the presidential election as a yardstick for party support and that other states require vote percentages as high as 20%.

“The reality is there’s nothing unusual about New York’s party status law,” Hallak said, saying it is “far easier” to become a party in New York than in many other states. 

The requirement to run a presidential candidate is in place, Hallak said, because that race garners the most interest and votes, making it “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. He argued that stronger ballot requirements help to avoid confusion and funding for frivolous candidates. 

But public funding will not fund parties, Stone said, it will fund candidates themselves. And if a party fails the state’s tests, it does not indicate that it lacks a modicum of support, simply because it decided not to run a “presidential dead-end candidate.”

Stone said Tuesday that, in 2018, the Serve America Movement did two things that were unprecedented for an organization of its size: It ran a mayoral candidate who was not part of a major political party, and it got 50,000 votes. 

The party brought the suit in January, naming Gov. Andrew Cuomo and the state Board of Elections among the defendants.  

The party “believes that the American political system today is driven by ideology and party loyalty, at the expense of compromise and problem solving, and fails to respond to the will and needs of the people,” according to the complaint. 

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

The argument was not enough to sway U.S. District Judge John G. Koeltl, who in September denied a motion to grant a permanent injunction blocking the state laws. 

The Serve America Movement “failed to demonstrate that allowing the amended party qualification requirements to take effect would violate their Constitutional rights, otherwise cause irreparable harm to the plaintiffs, or be against the public interest,” Koeltl wrote in a 44-page order. 

In addition to Judge Sack, Tuesday’s appeal panel included U.S. Circuit Judges Michael H. Park and Steven J. Menashi. 

Arguments ended without a ruling. Regardless of whether the court affirms or reverses the Manhattan district court’s decision not to grant a permanent injunction, the case will proceed in the lower court. 

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