Richard Lee Winger is widely regarded as the world s expert on ballot access and election law, as well as the topic of third party politics in the United States. He is the publisher and editor-in-chief of Ballot Access News, and sits on the editorial board of the Election Law Journal. He has been published in the Wall Street Journal, the Journal of Election Law, and many other places. He has appeared on ABC, NBC, CNN, NPR, and NPR. His newsletter, Ballot access News, comes out monthly. In this episode, Richard Winger talks about why it's so difficult for independent candidates to get on the ballot, and how it's been weaponized to keep them off the ballot. He also talks about how ballot access has been used as a tool by the corporate and political parties to keep independent candidates off of the ballot and why it s important to have a third party candidate on there at all. This is a must listen for anyone who wants to know if independent candidates should be able to get their name on the election ballot in order to run for president in 2020. If you're a supporter of independent candidates, this episode is for you. I'm very honored to be on the show, and it's a great pleasure to have the chance to talk to someone who's been on the road with me for the past few months fighting for an independent candidate's campaign. Thank you for listening and supporting my campaign. I'm looking forward to hearing from you in 2020 and beyond. Thank you so much for all the support and your continued support! -Eugene Winger@electionlawjr.org.org/ballotc/podcast/podcasts/podcast_podcasts Please rate, review, subscribe, share, and subscribe, and tell a friend about what you think of this podcast and/or share it on social media if you think it's helpful, and share it with a friend who needs to know that I'm listening to this podcast. Timestamps: 1) 2) What do you like it? 3) What would you like to hear from me? 4) What are your thoughts on this podcast? 5) Do you have a question or would you'd like to be featured on the next episode? 6) What's your favorite part of the show? 7) What kind of third-party candidate you would like me to talk about?
00:00:01.000Today, I have a special guest, and the subject of today is ballot access, because I've been on the road the last couple of months, and everybody knows that since I declared my independent candidacy for President of the United States, that The big question is, can we get on the ballot?
00:00:18.000We have retained the campaign, one of the great ballot access experts in the world, and he's so interesting that I wanted you, the audience, to hear from him directly.
00:00:33.000He's an American political activist and analyst.
00:00:36.000He's the publisher and editor emeritus of Ballot Access News, if you can believe that there is actually a publication with a large enough audience to justify it.
00:00:48.000He sits on the editorial board of the Election Law Journal.
00:00:52.000Richard Winger is widely regarded as an expert, as the world's expert on ballot access and election law, as well as the topic of third-party politics in the United States.
00:01:02.000Though not an attorney, Winger periodically testifies in court cases and legislative hearings and as a source for both the media and political organizers.
00:01:10.000He's been published in the Wall Street Journal, the Journal of Election Law, and many, many other places.
00:01:16.000He has appeared on ABC, NBC, CNN, NPR. And his newsletter, Ballot Access News, comes out monthly.
00:02:13.000So tell us about, because there's a balance here with ballot access, that there's a legitimate reason to make it difficult, which is to keep sort of, I guess, frivolous candidates from flooding the ballot.
00:02:27.000But it actually has become a mechanism as a weapon to keep everybody off the ballot, except for the major, the corporate parties, the corporate uniparty, Republican Party and Democratic Party.
00:02:41.000Can you talk a little bit about how it's been weaponized?
00:02:47.000In the 18th and 19th centuries, it was not a problem at all, because there were no government printed ballots.
00:02:53.000The government had no ability at all to prevent any person from voting for anyone they wanted, because people could make up their own ballots.
00:03:06.000They would pick up a ballot from their favorite party and throw that in the box.
00:03:10.000But they were free to X off names they didn't like and write in others.
00:03:14.000But as soon as the state started writing laws on who could get on government ballots, we got into trouble.
00:03:22.000The absolute worst state was Nevada in 1893.
00:03:28.000They said a petition to get a new party in the ballot had to be signed by 10% of the last vote cast.
00:03:35.000And then North Carolina in 1901, when they passed a ballot access law for their government printed ballots, they defined a party as something that had got 50,000 votes for governor in the 1900 election.
00:04:12.000No, but here's how North Carolina handled it.
00:04:16.000They said, don't worry, socialists, prohibitionists, it's still legal to have private ballots.
00:04:23.000So even though you're not on the government printed ballot, your voters are free to put in their own private ballot.
00:04:29.000And that was the situation for 30 years.
00:04:32.000What are the legal limitations right now for people or states that want to make it almost impossible for people like me to get on the ballot?
00:04:43.000Unfortunately, because of a horrible 1971 ruling by the U.S. Supreme Court from Georgia called Jeunesse v.
00:04:50.000Fortin, it's very tough to win these cases.
00:04:53.000The Socialist Workers' Party sued Georgia in 1970 in federal court because the law at the time said, unless you got 20% of the vote in the last election, you couldn't get on the ballot unless you submitted a petition of 5% of the registered voters.
00:05:15.000And the Socialist Workers' Party submitted no evidence that that was hard.
00:05:19.000All they argued was it's unconstitutional to require us to get signatures because Democrats and Republicans don't need any signatures to get on the primary ballot.
00:05:47.000Okay, they've made it far easier to get on for president than for other office Presidential ballot access is a nightmare, but it's not a complete nightmare.
00:05:58.000In fact, I consider only six states to have really, really tough requirements for president, but the little secret is state legislators don't really care who gets on for president that much, but they care a lot about who gets in the ballot to run against them.
00:06:13.000So the laws to get on the ballot for legislature or Congress are far, far tougher.
00:06:19.000And the absolute worst ballot access law is that same old Georgia law for U.S. House A petition to 5% of the registered voters is so hard.
00:06:29.000No third party has ever done it, even though it's existed for 80 years, and only one independent has done it, and that was way back in 1964.
00:06:38.000That's the worst ballot access law in the country.
00:06:40.000If the founding fathers thought someday there'd be a state that said you had to be a candidate of one of the two major parties to run for U.S. House, which was supposed to be the most democratic branch of the government, they would have been shocked.
00:06:56.000We won a case against it in U.S. District Court a few years ago, but then it went to the 11th Circuit.
00:07:02.000And on that panel was a former Attorney General of Alabama and a former Solicitor General of Georgia, two judges who have never ruled against their own states.
00:07:13.000In an election law case, and they upheld the law, and they said the state has a compelling interest in keeping everybody off the ballot who isn't strong enough to win.
00:07:45.000It's not only a huge number of signatures, you have a very short time to collect the signatures, and people can't sign if they voted in the primaries in March.
00:08:41.000Because if the purpose of the ballot access laws is to keep the ballot from being too crowded, a new party can put candidates in the ballot for every single partisan office.
00:08:51.000So it has a far bigger impact on ballot space than one independent candidate.
00:08:57.000So why in the world should they require more signatures for an independent than for a new party?
00:09:02.000It's just a lot of these laws are just ridiculous.
00:09:06.000And what are the other states that make it hard, that we're going to have the hardest time?
00:09:11.000California, New York, Florida, although Florida may have loopholes, Indiana and Arizona, I think, are the hardest six.
00:10:20.000And once they make a decision, Nobody can sue to overturn it.
00:10:24.000It's only a few states that are in the habit of having ordinary people then go to court and say, well, I don't think this petition's valid.
00:10:31.000New York, especially, and Illinois especially, to a certain extent Pennsylvania and Ohio, but generally that doesn't happen.
00:10:41.000You do have a little problem in some states that make it illegal for people to sign for two different candidates for the same office.
00:10:48.000So if you go out and get a bunch of signatures and unbeknownst to you, a bunch of your signers had already signed for some other independent presidential candidate, that's a problem.
00:12:35.000But after the election, the First Circuit reversed it and said, nope, that's a fraud in the voters showing somebody in the petition who's not going to really be running.
00:12:46.000So in the First Circuit now, they wreck substitution.
00:12:50.000And of course, the First Circuit includes four New England states.
00:12:53.000And what kind of dirty tricks have you seen during your years?
00:12:59.000The Green Party in Montana, twice in 2018 and 2020, they turned in signatures.
00:13:09.000Both times, the Secretary of State said they had enough ballot.
00:13:12.000Then the Democratic Party, which didn't want the Green Party in the ballot, Got hold of the petition and made a massive effort to ring the doorbells of all the people that had signed it and try to persuade them to sign a piece of paper taking their name off the petition.
00:13:27.000And the Montana Supreme Court allowed that even though these people had reversed their signatures immediately.
00:13:37.000Here the state held the Green Party primary in June, and then after their primary, the Democrats said, well, we've got enough people who took their name off the petition, which had been circulated six months ago, and the courts took them off.
00:14:46.000But they said this violates one man, one vote, because this is giving the people of some districts more power than the power of people living in other legislative districts.
00:14:59.000Then the Secretary of State put the Green Party in the ballot for 2022 on the basis that the law was unconstitutional.
00:15:08.000So they were able to overcome the law Too late, you see.
00:15:13.000They missed out on being in the ballot both 2018 and 2020.
00:15:17.000They couldn't get their benefit of this victory until after those two elections were over.
00:15:22.000Well, do you anticipate that when I file my petition in Montana, that the Democrats and Republicans are going to go door to door and check all my signatures and try that game again?
00:15:35.000The Democrats couldn't get many people to sign.
00:15:38.000They only needed a small number because of this distribution requirement.
00:15:42.000If they knocked you off in just one district, you were gone.
00:15:48.000But the distribution requirement is gone now.
00:15:51.000So if you turn in 8,000 signatures and you need 5,000, The Democrats could not possibly get 3000 people to take their signatures off.
00:16:01.000It was only a problem when the Democrats only had to get about 25 people to retract.
00:16:07.000Tell us some of the other dirty tricks that you've seen.
00:16:10.000In 2022, the Democrats really didn't want the Green Party in the ballot in North Carolina.
00:16:15.000So even though the county boards of election had said the Greens have enough valid signatures, they went to the State Board of Elections, which had a three to two Democratic majority, and they simply wouldn't approve the petition.
00:17:21.000There are a lot of things that they used to be able to do that they can't do anymore.
00:17:26.000The majority of states used to say your circulators had to be registered voters in the state, but those laws have almost totally been struck down now.
00:17:35.000We have Ruth Ginsburg to thank for that.
00:17:38.000She wrote a decision from Colorado striking down a Colorado law that said you had to be a registered voter to be a circulator, and that was a big help.
00:17:49.000She didn't strike down the law that you had to live in the state, but the lower courts then took the hint And virtually every state, you can hire circulators or have volunteer circulators from another state and they can work anywhere they want.
00:18:05.000What did Ross Perot do to get on the ballot?
00:18:08.000In 1992, he was so popular, he had millions of people that wanted to volunteer for him.
00:18:16.000But he still spent a fortune because he felt the need to open storefront offices all over the country.
00:18:25.000The store was so that the volunteers could come in without having to travel too far and get trained and pick up blank petition forms and then they'd have a place to turn them in.
00:18:39.000Now, because of modern technology, that's not really needed anymore.
00:18:44.000You can have people electronically obtain blanks and you can have trainings on Zoom.
00:18:52.000So although he spent a fortune, somebody else like you with lots and lots of volunteers can manage that with less money.
00:19:00.000And what happens if the super PAC is out there getting petitions and actually probably competing against the campaign?
00:19:32.000Yeah, they thought that would hurt the Democrats.
00:19:34.000It does not necessarily follow that having left candidates hurts Democrats, but everybody thinks it does.
00:19:41.000There's evidence to contradict that, but I won't get into that.
00:19:44.000But anyway, then the Democrats sued and said, you can't do that.
00:19:47.000But the Michigan State Court of Appeals ruled, well, there's no law against it if they want to go out and circulate a petition.
00:19:54.000For somebody without talking to them and the signatures are valid, fine.
00:19:57.000And then also the same thing happened in 1968 in New York when a bunch of people wanted Eugene McCarthy to be an independent presidential candidate and he didn't want to.
00:20:08.000So in New York they just circulated the petition anyway and The lower courts put him on.
00:20:15.000But then the highest state court said, there's a common law right not to be forced to be a candidate against your will.
00:20:22.000So they took him off because he wanted off.
00:20:25.000But nobody said there was anything wrong with independently circulating the petition for him.
00:20:30.000And there's no FEC rule that would, I suppose, if a campaign were coordinating with the PAC, you couldn't do that.
00:20:39.000I'm not an expert on campaign finance law, but I don't think there is.
00:20:43.000I think it would have come up already.
00:20:45.000Were you involved with Ross Perot's campaign or with Ralph Nader or any of the other ones?
00:20:53.000In a peripheral sense, I am so in favor of a free election.
00:20:59.000I give advice to anybody that asks me.
00:21:01.000It doesn't matter if I agree with them or not.
00:21:04.000I just feel good about helping people out.
00:21:07.000And since I know the precedents, I can be helpful sometimes.
00:21:11.000Tell us about some of the cases you've been involved in.
00:21:42.000And then I flew all the way to Cincinnati just to be in the audience in the Sixth Circuit, because back then you couldn't watch these things on the computer.
00:21:50.000And there were three judges, like there always is in the U.S. Court of Appeals.
00:22:22.000Richard Winger, thank you very, very much for your commitment to our democracy, for your lifelong efforts to keep American democracy open to as many voices of dissent, of difference as possible.
00:22:37.000Well, thank you for what you're doing, because you're You're going to improve the law with your lawsuits.