RFK Jr. The Defender - Ballot Access Obstruction with Richard Winger

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?

00:00:00.000 Hey, everybody.

00:00:01.000 Today, 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?

00:00:18.000 We 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.

00:00:30.000 His name is Richard Lee Winger.

00:00:31.000 He was born in Antioch, California.

00:00:33.000 He's an American political activist and analyst.

00:00:36.000 He'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.

00:00:48.000 He sits on the editorial board of the Election Law Journal.

00:00:52.000 Dr.

00:00:52.000 Richard 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.

00:01:02.000 Though not an attorney, Winger periodically testifies in court cases and legislative hearings and as a source for both the media and political organizers.

00:01:10.000 He's been published in the Wall Street Journal, the Journal of Election Law, and many, many other places.

00:01:16.000 He has appeared on ABC, NBC, CNN, NPR. And his newsletter, Ballot Access News, comes out monthly.

00:01:25.000 Welcome to the show.

00:01:27.000 I'm very honored to be on, and it's a great pleasure to talk to you.

00:01:31.000 And by the way, congratulations on winning the third Ballot Access case for 2024, your Utah case.

00:01:40.000 It's not over, but it's basically won.

00:01:42.000 I think we're fighting basically the same law now in Idaho.

00:01:48.000 Well, I hear that Idaho Secretary of State is saying they don't really know what their deadline is.

00:01:54.000 Because they used to have a separate section for independent presidential candidates giving a very good deadline in late August.

00:02:00.000 And then they repealed it, but they never replaced it with anything else.

00:02:04.000 So your attorney tells me that they're probably going to make a good ruling and you probably won't have to sue.

00:02:11.000 We'll see.

00:02:12.000 Well, that's good.

00:02:13.000 So 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.

00:02:27.000 But 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.

00:02:41.000 Can you talk a little bit about how it's been weaponized?

00:02:44.000 Well, this is an old problem.

00:02:47.000 In the 18th and 19th centuries, it was not a problem at all, because there were no government printed ballots.

00:02:53.000 The government had no ability at all to prevent any person from voting for anyone they wanted, because people could make up their own ballots.

00:03:03.000 That was legal.

00:03:03.000 Although most people didn't bother.

00:03:06.000 They would pick up a ballot from their favorite party and throw that in the box.

00:03:10.000 But they were free to X off names they didn't like and write in others.

00:03:14.000 But as soon as the state started writing laws on who could get on government ballots, we got into trouble.

00:03:22.000 The absolute worst state was Nevada in 1893.

00:03:28.000 They said a petition to get a new party in the ballot had to be signed by 10% of the last vote cast.

00:03:35.000 And 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.

00:03:48.000 Period.

00:03:49.000 There was no other way to be a qualified party.

00:03:53.000 And since 1900 was in the past, you couldn't alter it.

00:03:58.000 So the Democratic and Republican parties had each pulled over 50,000 votes.

00:04:03.000 They were on the ballot forever, permanently, and nobody else could ever get on.

00:04:08.000 And there's been other horror stories.

00:04:10.000 Was that then litigated?

00:04:12.000 No, but here's how North Carolina handled it.

00:04:16.000 They said, don't worry, socialists, prohibitionists, it's still legal to have private ballots.

00:04:23.000 So even though you're not on the government printed ballot, your voters are free to put in their own private ballot.

00:04:29.000 And that was the situation for 30 years.

00:04:32.000 What 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?

00:04:43.000 Unfortunately, because of a horrible 1971 ruling by the U.S. Supreme Court from Georgia called Jeunesse v.

00:04:50.000 Fortin, it's very tough to win these cases.

00:04:53.000 The 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.

00:05:11.000 Now that is really, really hard.

00:05:15.000 And the Socialist Workers' Party submitted no evidence that that was hard.

00:05:19.000 All 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.

00:05:28.000 That's all they said.

00:05:30.000 And they lost.

00:05:32.000 Unanimously, even the liberals went along with it.

00:05:35.000 If they had presented evidence, we would have had a much better outcome.

00:05:38.000 But that case has plagued us ever since.

00:05:42.000 Talk about some of the impediments today.

00:05:45.000 What are the worst dates?

00:05:47.000 Okay, 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.

00:05:58.000 In 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.

00:06:13.000 So the laws to get on the ballot for legislature or Congress are far, far tougher.

00:06:19.000 And 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.

00:06:29.000 No 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.

00:06:38.000 That's the worst ballot access law in the country. 0.63

00:06:40.000 If 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.

00:06:55.000 But that's what we've got.

00:06:56.000 We won a case against it in U.S. District Court a few years ago, but then it went to the 11th Circuit.

00:07:02.000 And 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.

00:07:13.000 In 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.

00:07:24.000 That was shocking.

00:07:25.000 There's no precedent for that.

00:07:27.000 They didn't cite any.

00:07:28.000 They just said it, and the Supreme Court wouldn't hear it.

00:07:32.000 Well, back on the subject of the presidential race, what are the states that are going to be most difficult for me to get on?

00:07:42.000 Texas.

00:07:43.000 Texas is a nightmare.

00:07:45.000 It'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.

00:07:54.000 And it's got an early deadline.

00:07:56.000 If they voted in the primaries, they can't sign their name to a petition.

00:08:03.000 Right.

00:08:04.000 So you have to get all new voters.

00:08:06.000 Do they have to be registered voters?

00:08:08.000 Yeah, they have to be registered voters.

00:08:11.000 Now, fortunately, for some reason, Texas has a long tradition of very poor turnout in primaries.

00:08:16.000 I don't really know why that is.

00:08:18.000 But typically, even in presidential years, only about a fourth of the registered voters vote in Texas primaries.

00:08:25.000 And how many signatures do you have to have?

00:08:28.000 Well, that's another crazy thing.

00:08:30.000 If you're starting a new party, you need 80,000.

00:08:33.000 But if you're trying to be an independent presidential candidate, you need about 115,000. 1.00

00:08:38.000 And that's idiotic all by itself. 0.95

00:08:41.000 Because 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. 0.98

00:08:51.000 So it has a far bigger impact on ballot space than one independent candidate.

00:08:57.000 So why in the world should they require more signatures for an independent than for a new party? 0.95

00:09:02.000 It's just a lot of these laws are just ridiculous.

00:09:06.000 And what are the other states that make it hard, that we're going to have the hardest time?

00:09:11.000 California, New York, Florida, although Florida may have loopholes, Indiana and Arizona, I think, are the hardest six.

00:09:22.000 They also have windows, right?

00:09:25.000 Because many of the states, you can start signature gathering now and you have all the way to August.

00:09:30.000 You can start as early as you want in Arizona and Indiana.

00:09:34.000 But California, Texas, yeah, you can start as early as you want in Florida also.

00:09:40.000 But California, Texas, and New York have windows.

00:09:42.000 And New York's window is terribly strict, six weeks.

00:09:46.000 Furthermore, they have an early deadline also.

00:09:48.000 It's in May.

00:09:50.000 There's a lawsuit pending against that deadline.

00:09:53.000 So we may get some judicial relief.

00:09:55.000 And talk about the other impediments that the other parties are going to put, that we're going to face when we submit our ballots.

00:10:04.000 I know there's a perception out there that in a lot of states people will sue and claim there aren't enough valid signatures.

00:10:11.000 But most states don't permit that.

00:10:14.000 Most states, the election officials check the signatures.

00:10:17.000 They generally do a good job.

00:10:20.000 And once they make a decision, Nobody can sue to overturn it.

00:10:24.000 It'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.

00:10:31.000 New York, especially, and Illinois especially, to a certain extent Pennsylvania and Ohio, but generally that doesn't happen.

00:10:41.000 You do have a little problem in some states that make it illegal for people to sign for two different candidates for the same office.

00:10:48.000 So 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.

00:10:58.000 But that's a minority of states also.

00:11:01.000 Then there's all this confusion about when you have to choose a vice presidential nominee.

00:11:06.000 Now fortunately, in 1980, Congressman John B. Anderson set a lot of very good precedents that you don't need a VP right away.

00:11:15.000 He was a congressional leader of the Republican Party.

00:11:19.000 He ran for president in the primaries in 1980.

00:11:21.000 Then on April 2030, he changed his mind.

00:11:24.000 He said, I'm getting out of the Republican race.

00:11:25.000 I know Reagan's going to win it. 0.99

00:11:27.000 I'm going to be an independent.

00:11:28.000 But he didn't pick as VP until August 27th.

00:11:31.000 That was former Wisconsin governor Patrick Lucey.

00:11:34.000 So practically every state said, you can use a stand-in on the petition for vice president.

00:11:41.000 And We'll let that person resign once you pick the real candidate.

00:11:45.000 So Anderson's VP stand-in was Milton Eisenhower.

00:11:49.000 He was 90 years old at the time.

00:11:51.000 He was Dwight Eisenhower's older brother.

00:11:54.000 And everybody recognizes he wasn't going to be the real VP. But it worked out okay.

00:11:59.000 And so a lot of these states have forgotten what they did.

00:12:02.000 And they are backtracking.

00:12:04.000 And you're probably going to have to fight some court battles over vice presidential substitution if you use a stand-in.

00:12:11.000 So there's some states where you cannot use a stand-in?

00:12:16.000 Unfortunately, Massachusetts, they went backwards.

00:12:19.000 They used to allow it.

00:12:21.000 And then in 2008, the Libertarian Party used stand-ins.

00:12:25.000 And the state said, we're not going to accept that, even though they had promised that very year they would.

00:12:32.000 So then the Libertarian Party sued.

00:12:34.000 They won in U.S. District Court.

00:12:35.000 But 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.

00:12:45.000 We don't like it.

00:12:46.000 So in the First Circuit now, they wreck substitution.

00:12:50.000 And of course, the First Circuit includes four New England states.

00:12:53.000 And what kind of dirty tricks have you seen during your years?

00:12:59.000 The Green Party in Montana, twice in 2018 and 2020, they turned in signatures.

00:13:09.000 Both times, the Secretary of State said they had enough ballot.

00:13:12.000 Then 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.

00:13:27.000 And the Montana Supreme Court allowed that even though these people had reversed their signatures immediately.

00:13:35.000 After the Green Party primary.

00:13:37.000 Here 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.

00:13:51.000 That was really bad.

00:13:54.000 And is that a federal case, or is that...

00:13:56.000 No, that was in state court.

00:13:59.000 However, we got even.

00:14:02.000 After that happened, the Ninth Circuit struck down the Montana ballot access law because it had an unequal distribution requirement.

00:14:12.000 I don't know if that's too arcane to try to explain or not.

00:14:15.000 But in the end, we got even.

00:14:18.000 Explain that.

00:14:20.000 Okay.

00:14:20.000 The law said the petition needed a certain number of signatures in one-third of the legislative districts.

00:14:29.000 But the trouble was the law was very irrational.

00:14:31.000 And in some legislative districts, you needed as few as 55 signatures.

00:14:37.000 And in others, you needed as many as 150.

00:14:40.000 And yet all legislative districts are basically equal in population.

00:14:43.000 So it was a technical decision.

00:14:46.000 But 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.

00:14:59.000 Then the Secretary of State put the Green Party in the ballot for 2022 on the basis that the law was unconstitutional.

00:15:05.000 Then they're on for 2024 also.

00:15:08.000 So they were able to overcome the law Too late, you see.

00:15:13.000 They missed out on being in the ballot both 2018 and 2020.

00:15:17.000 They couldn't get their benefit of this victory until after those two elections were over.

00:15:22.000 Well, 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?

00:15:34.000 Well, here's the funny thing.

00:15:35.000 The Democrats couldn't get many people to sign.

00:15:38.000 They only needed a small number because of this distribution requirement.

00:15:42.000 If they knocked you off in just one district, you were gone.

00:15:48.000 But the distribution requirement is gone now.

00:15:51.000 So 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.

00:16:01.000 It was only a problem when the Democrats only had to get about 25 people to retract.

00:16:07.000 Tell us some of the other dirty tricks that you've seen.

00:16:10.000 In 2022, the Democrats really didn't want the Green Party in the ballot in North Carolina.

00:16:15.000 So 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.

00:16:29.000 They had no grounds.

00:16:32.000 They just said, well, we think there was fraud.

00:16:35.000 There was no evidence.

00:16:36.000 So anyway, the Greens went to federal court and won the case.

00:16:41.000 How about when you're on the ground actually getting signatures?

00:16:46.000 Have you heard of, you know, kind of dirty tricks at that point?

00:16:50.000 Well, there's something called blockers.

00:16:53.000 If people really, really hate you, they can recruit a bunch of people to follow your petitioners around.

00:17:02.000 And once the petitioner starts talking to a voter in the street, they say, don't sign this petition!

00:17:09.000 And they harass the petitioner and the person he or she is talking to, and it makes it very tough on the petitioners.

00:17:18.000 Nobody wants to do that all day.

00:17:21.000 There are a lot of things that they used to be able to do that they can't do anymore.

00:17:26.000 The 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.

00:17:35.000 We have Ruth Ginsburg to thank for that.

00:17:38.000 She 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.

00:17:49.000 She 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.

00:18:05.000 What did Ross Perot do to get on the ballot?

00:18:08.000 In 1992, he was so popular, he had millions of people that wanted to volunteer for him.

00:18:16.000 But he still spent a fortune because he felt the need to open storefront offices all over the country.

00:18:23.000 And that's expensive.

00:18:24.000 You have to pay the rent.

00:18:25.000 The 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.

00:18:39.000 Now, because of modern technology, that's not really needed anymore.

00:18:44.000 You can have people electronically obtain blanks and you can have trainings on Zoom.

00:18:52.000 So although he spent a fortune, somebody else like you with lots and lots of volunteers can manage that with less money.

00:19:00.000 And what happens if the super PAC is out there getting petitions and actually probably competing against the campaign?

00:19:09.000 What happens in that case?

00:19:12.000 Well, we have a couple of good precedents.

00:19:14.000 In 2004, The Michigan Republican Party circulated a petition to get Ralph Nader in the ballot as an independent presidential candidate.

00:19:23.000 They did it totally without talking to him.

00:19:27.000 They just did it.

00:19:28.000 And they got enough signatures.

00:19:30.000 They wanted to punish the Democrats.

00:19:32.000 Yeah, they thought that would hurt the Democrats.

00:19:34.000 It does not necessarily follow that having left candidates hurts Democrats, but everybody thinks it does.

00:19:41.000 There's evidence to contradict that, but I won't get into that.

00:19:44.000 But anyway, then the Democrats sued and said, you can't do that.

00:19:47.000 But the Michigan State Court of Appeals ruled, well, there's no law against it if they want to go out and circulate a petition.

00:19:54.000 For somebody without talking to them and the signatures are valid, fine.

00:19:57.000 And 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.

00:20:08.000 So in New York they just circulated the petition anyway and The lower courts put him on.

00:20:15.000 But then the highest state court said, there's a common law right not to be forced to be a candidate against your will.

00:20:22.000 So they took him off because he wanted off.

00:20:25.000 But nobody said there was anything wrong with independently circulating the petition for him.

00:20:30.000 And there's no FEC rule that would, I suppose, if a campaign were coordinating with the PAC, you couldn't do that.

00:20:39.000 I'm not an expert on campaign finance law, but I don't think there is.

00:20:43.000 I think it would have come up already.

00:20:45.000 Were you involved with Ross Perot's campaign or with Ralph Nader or any of the other ones?

00:20:53.000 In a peripheral sense, I am so in favor of a free election.

00:20:59.000 I give advice to anybody that asks me.

00:21:01.000 It doesn't matter if I agree with them or not.

00:21:04.000 I just feel good about helping people out.

00:21:07.000 And since I know the precedents, I can be helpful sometimes.

00:21:11.000 Tell us about some of the cases you've been involved in.

00:21:15.000 Well, let's see.

00:21:17.000 I think the happiest decision ever Was the Libertarian Party case against Ohio that was filed in 2004.

00:21:28.000 At the time, the Ohio Party petition was due in December of the year before the election.

00:21:33.000 And it was a lot of signatures, about 40,000.

00:21:37.000 And...

00:21:38.000 We lost in U.S. District Court.

00:21:40.000 We said the deadline was too early.

00:21:42.000 And 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.

00:21:50.000 And there were three judges, like there always is in the U.S. Court of Appeals.

00:21:54.000 Two of them said nothing.

00:21:56.000 The third one was extremely hostile.

00:21:59.000 So it was like a...

00:22:01.000 A duet between our lawyer and this hostile judge.

00:22:06.000 We waited a year for that decision to come out.

00:22:09.000 Every day I was checking the court website.

00:22:12.000 Finally there, it popped up, said reversed.

00:22:15.000 I was so surprised and happy.

00:22:17.000 I screamed out loud.

00:22:20.000 So that's probably my favorite one.

00:22:22.000 Richard 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.

00:22:37.000 Well, thank you for what you're doing, because you're You're going to improve the law with your lawsuits.

00:22:42.000 So thank you.

00:22:44.000 I hope I do more than that.

00:22:46.000 Well, I know you have other goals, but you will do that.

RFK Jr. The Defender - January 05, 2024

Ballot Access Obstruction with Richard Winger

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