These States Have Tried To Make It Tough For Minor Party Candidates To Get on The Ballots

"It’s the worst year for hostility to minor parties and independent candidates since 1971."
Then-presidential candidate Donald Trump greets supporters after a 2016 rally in Costa Mesa, California. State lawmakers are
Then-presidential candidate Donald Trump greets supporters after a 2016 rally in Costa Mesa, California. State lawmakers are considering legislation that would require presidential candidates to make public years’ worth of tax returns in order to appear on the 2020 primary ballot. Trump has made a high-profile argument that he won’t release his returns.

By Marsha Mercer

The first man to the microphone wore a Trump 2020 cap and a scowl.

“I want to vote for Donald P. Trump for president!” he roared, misstating the president’s middle initial, and stepped aside.

“Thank you, sir. I’ll take that as a ‘no’ on the bill,” California state Assemblyman Marc Berman, a Democrat and chairman of the state Assembly Elections and Redistricting Committee, said without missing a beat.

Senate Bill 27 was “the hot bill of the day” at the committee’s June 19 public hearing, Berman said. The bill would require all presidential and gubernatorial candidates to release five years of income tax returns to the California secretary of state as a condition for appearing on California’s primary ballot starting in 2020.

California is among 18 states that have considered tax return disclosure requirements this year for presidential candidates, according to the National Conference of State Legislatures (NCSL), after 27 states considered such legislation last year.

So far, the presidential ballot bills are mostly political talking points for both sides. None has been enacted. But bills to require presidential tax return disclosure are alive in eight states — California, Illinois, New Jersey, New York, North Carolina, Oregon, Pennsylvania and Rhode Island — and will be carried over to the next legislative session in four states — Hawaii, Minnesota, Vermont and Washington, according to NCSL.

“It’s kind of surprising no state has taken the plunge yet,” said Richard L. Hasen, professor of law and political science at the University of California, Irvine and author of the Election Law Blog. “I’m still waiting for something to happen.”

California is poised to become the first — and perhaps only — state ever to possibly ban a president running for re-election from its presidential primary ballot. But several states this year — including Arkansas, Colorado and Texas — have made it harder for lesser-known minor parties and independent candidates for state office to get on the ballot.

“I think it’s the worst year for hostility to minor parties and independent candidates since 1971,” said Richard Winger, a Libertarian who is editor of San Francisco-based Ballot Access News.

That year, Winger said, states were reacting to the 1968 presidential campaign of former Alabama Gov. George Wallace, who ran on the American Independent Party ticket. Wallace, a segregationist, received 13.5% of the popular vote and 46 electoral votes, and carried Alabama, Arkansas, Georgia, Louisiana and Mississippi.

This year, polarized politics is to blame, he said.

“Partisanship is getting more and more intense,” Winger said. “You think it can’t get any worse and it does. Each side feels it can’t stand what the other side is doing.”

Efforts to make it easier for independents and minor parties to run failed this year in at least seven states, he said — Alabama, Alaska, Illinois, Indiana, Kansas, Minnesota and Montana.

“Normally when we have that many bills improving things we expect about a third of them to pass, but they all failed,” Winger said.

Texas two-step

Texas Gov. Greg Abbott, a Republican, signed a bill in early June that Winger called “half good and half bad.”

It requires candidates from parties that nominate by convention to pay a filing fee (bad because minor candidates may not have the money). But it also sets a new threshold of 2% of the vote in one of the last five general elections to ensure a party’s spot on the next ballot (good because it makes it easier for a minor party to stay on the ballot, Winger said).

Previously in Texas, a minor party candidate had to win 5% of the vote in a statewide contest during the last election.

Texas state Sen. Bryan Hughes, a Republican and the bill’s sponsor, said in floor debate in May that the new rules would give voters “more parties to choose from,” according to his office. Hughes did not respond to a request for an interview from Stateline.

“Different parties were paying different fees, and this equalizes the amount,” said Drew Tedford, general counsel in Hughes’ office, adding that in some cases minor parties paid no fee at all.

Democrats countered that the new rules would make it easier for the Green Party to qualify but more difficult for the Libertarian Party. It’s thought the Green Party typically takes votes from Democrats while the Libertarians take votes from Republicans.

The measure passed on a party-line vote.

Colorado makes it easier than almost any other state to get on the presidential ballot. A record 22 presidential candidates appeared on the state’s 2016 ballot.

“The concern we have is voter confusion. With this threshold, voters have way too many choices,” said Joel Albin, Colorado ballot access manager in the Secretary of State’s office. “I don’t think having 20 candidates for office is good for voters.”

But when the Colorado legislature rewrote the ballot access law earlier this year, it left unchanged the rules for presidential candidates to qualify for the general election ballot: Pay a $1,000 filing fee, and you’re in.

The new law makes it more difficult for minor parties to qualify for state office ballots by requiring more signatures. Last year, a minor party candidate for Colorado state Senate had to collect either 600 signatures or 2% of the total vote in the most recent election for the seat, whichever was less. In 2020, a minor party candidate will need either 1,000 signatures or 3.3%.

For minor party candidates seeking seats in the Colorado state House, the number of signatures went from 400 signatures or 2%, to 1,000 signatures or 5%.

The idea was to match the requirements for state offices with requirements for major parties to make them more equal, Albin said.

In Indiana, one of the toughest ballot access states, a candidate for statewide office from a minor party must collect 26,699 signatures.

James C. Linger, an attorney in Tulsa, Oklahoma, who has litigated ballot access cases for 39 years, said while state laws for third parties have much improved over the past 20 to 30 years, a new trend of earlier primaries and filing deadlines is worrisome.

“The major parties want to get their infighting over early, but many voters don’t get interested in third parties until the major parties have chosen their candidates,” he said. By then it may be too late for minor parties to qualify.

“Most voters want more choice,” Linger said. “Third-party candidates will bring up issues the major party candidates want to avoid.”

The Libertarian Party qualified for the presidential ballot in all 50 states in 2016 and is working to do so again in 2020. The Green Party qualified for the presidential ballot in 44 states and the Constitution Party in 24 states in 2016, according to Ballotpedia.

Linger represents the Libertarian Party of Arkansas in fighting a law Gov. Asa Hutchinson, a Republican, signed in February, changing the way a new political party is recognized. Previously, a new party needed petitions signed by 10,000 registered voters.

The new law requires at least 3% of the total votes cast in the last gubernatorial election. In 2018, just under 892,000 people voted in the gubernatorial election, so a new party now would need nearly 27,000 signatures to be recognized.

The Libertarian Party of Arkansas has asked a federal judge to block enforcement of the new law until she decides whether it is constitutional.

Linger also criticized the state for setting an earlier deadline for submitting the signatures — 14 months before the election.

In a court hearing June 4, state Solicitor General Nicholas Bronni said the state’s duty is to ensure elections run smoothly by regulating them and requiring minor parties to demonstrate some “reasonable quantum of voter support” to appear on the ballot, the Arkansas Democrat Gazette reported.

“Circumstantial evidence is strong they [Republicans] had a political motivation,” Linger said in an interview. “They can deny it.”

“It’s not about Democrats or Republicans or anyone else,” Republican state Sen. Trent Garner, who sponsored the bill, told Stateline. “It’s not about politics. It’s about the people of Arkansas who go to vote knowing the parties on the ballot have a minimum amount of support.”

Trump’s tax returns

Politics is undeniably front and center in the battle for Trump’s tax returns. The California and New Jersey legislatures passed tax return requirements in 2017, but then-governors vetoed them.

Trying again this year, the California Senate passed the measure on a party-line vote in May. Democrats on the Assembly elections committee sent the bill — which now has an added requirement for returns from gubernatorial candidates — to the Assembly Appropriations Committee, which passed it June 26 on a party-line vote. No date for floor debate has been set.

Winger expects the California Assembly to pass the bill, but he’s uncertain the governor, who has not commented on the bill publicly, will go along.

“Governors are more responsive to their constituents. Most governors, I’ve found, work quite hard at making a rational decision,” Winger said.

If Gov. Gavin Newsom, a Democrat, does veto the measure, the legislature is unlikely to override it. But if Trump is not on the primary ballot, all is not lost for Trump voters in California. 

“This bill does not prevent any candidate from filing as a write-in,” Winger said. 

“It’s clear there are issues and opposition,” said California state Sen. Mike McGuire, a Democrat and the bill’s sponsor. “But two-thirds of Americans want the president — and not just President Trump — to release his or her tax returns,” he said.

California Assemblyman James Gallagher, a Republican and vice chairman of the elections committee, said at the June 19 hearing that the measure looks “very political.” If Trump is not on the primary ballot in March, he said, “There’s no reason for Republicans to turn out, and that affects all the down-ballot races.”

Gallagher also cited privacy issues.

“We don’t give up all sense of privacy when we run for office ... to me, my tax returns are nobody’s business,” he said.

McGuire countered at the June 19 hearing that Trump is “the biggest organizer for the Democratic Party,” spurring Democratic turnout. “We’d have Donald Trump on every flippin’ ballot in California if we could.”

Trump says voters elected him in 2016 even though he did not release his tax returns and they don’t care about the issue now. A Quinnipiac University poll in March found 64% of voters thought Trump should release his tax returns, and other polls have found about half of Americans think he should.

Newsom has not said whether he will sign the measure, which critics say may violate the California Constitution’s mandate that “recognized” candidates be listed on the ballot. Newsom released six years of his own tax returns in 2017 during his campaign.

In his 2017 veto message, then-Gov. Jerry Brown, a Democrat who had not released his returns, called the ballot access requirement a “slippery slope.”

“Today we require tax returns but what would be next?” Brown asked at the time. “Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?”

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