Petition for Writ of Certiorari — Libertarian Party of New York, et al., Petitioners v. New York State Board of Elections, et al.

Supreme Court briefMar 13, 2023

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IN THE

Supreme Court of the United States

______________

LIBERTARIAN PARTY OF NEW YORK, GREEN PARTY OF

NEW YORK, ET AL.,

Petitioners,

NEW YORK BOARD OF ELECTIONS, ET AL.,

Respondents.

______________

On Petition for Writ of Certiorari

to the United States Court of Appeals for the

Second Circuit

______________

PETITION FOR WRIT OF CERTIORARI

______________

Oliver Barrett Hall

Counsel of Record

Center for Competitive Democracy

P.O. Box 21090

Washington, DC 20009

Telephone: (202) 248-9294

oliverhall@competitivedemocracy.org

Counsel for Petitioners

QUESTIONS PRESENTED

In 2020, New York passed massive, historic increases to its thresholds for independent minor political parties to gain and retain access to the ballot. The

practical effect of these increases was the elimination

of contemporary independent minor parties such as

Petitioners and the predictable result that virtually no

independent minor party will be able to attain or retain ballot access. In upholding the increases, the

courts below purported to apply the standard first developed in Anderson v. Celebrezze, 460 U.S. 780 (1983),

and Burdick v. Takushi, 504 U.S. 428 (1992): a court

must “weigh the character and magnitude of the burden the State’s rule imposes on those rights against

the interests the State contends justify that burden,

and consider the extent to which the State’s concerns

make the burden necessary. Regulations imposing severe burdens on plaintiffs’ rights must be narrowly

tailored and advance a compelling state interest.

Lesser burdens, however, trigger less exacting review,

and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 358 (1997) (cleaned up). In the

minor party context, the Court has stated that “the

State may not act to maintain the ‘status quo’ by making it virtually impossible for any but the two major

parties to achieve ballot positions for their candidates.” Clements v. Fashing, 457 U.S. 957, 965 (1982)

(plurality op.). The courts below upheld the increased

thresholds. The questions presented are:

1. Did the courts below properly apply the Ander-

son-Burdick standard as a “two-tracked approach” rather than as “a sliding-scale balancing analysis” when

they found the increased thresholds do not impose a

severe burden on Petitioners and then determined

that the thresholds were “coherent,” “rational,” “reasonable,” and “justified” under a “quite deferential” review? Compare Crawford v. Marion Cnty. Election

Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring),

with id., at 210 (Souter, J., dissenting).

2. In assessing the burden to Petitioners in light

of New York’s requirement to collect over 1,070 valid

signatures-per-day to run a candidate and thereby

earn ballot access, did the courts below err by merely

analogizing to prior precedent from this Court discussing collecting a certain amount of signatures-perday—as also done by the First, Third, Seventh, Ninth,

and Eleventh Circuits—or must a court apply a contextual analysis as it would for other ballot access restrictions, as performed by the Sixth and Eighth Circuits?

3. Did the courts below err in finding that the

thresholds did not impose a severe burden (which

would warrant strict scrutiny) because two “fusion”

parties survived the new thresholds—i.e., parties

whose existence depends on cross-nominating major

party candidates for governor and now president—

even though this Court has previously held that “fusion” is of little constitutional significance? See Timmons, 520 U.S. at 362–64.

iii

PARTIES TO THE PROCEEDING

Petitioners are the Libertarian Party of New York,

the Green Party of New York, Anthony D’Orazio,

Larry Sharpe, Gloria Mattera, and Peter LaVenia.

Respondents are the New York Board of Elections,

Peter S. Kosinski, as the Co-Chair of the New York

Board of Elections, Douglas A. Kellner, as the CoChair of the New York Board of Elections, Andrew J.

Spano, as a Commissioner of the New York Board of

Elections, Todd D. Valentine, as Co-Executive Director of the New York Board of Elections, Robert A.

Brehm, Co-Executive Director of the New York Board

of Elections.

RULE 29.6 STATEMENT

No parent or publicly held company owns 10%

or more of the stock of the Libertarian Party of New

York or the Green Party of New York.

STATEMENT OF RELATED PROCEEDINGS

United States District Court for the Southern

District of New York:

SAM Party v. Kosinski, 483 F. Supp. 3d 245

(S.D.N.Y. 2020) (“SAM Party I”) (preliminary injunction decision in related actions brought by the SAM

and Working Families Parties)

Libertarian Party of New York v. New York Bd.

of Elections, 539 F. Supp. 3d 310 (S.D.N.Y. 2021)

(“LPNY I”) (preliminary injunction decision)

SAM Party of New York v. Kosinski, 576 F.

Supp. 3d 151 (S.D.N.Y. 2021) (“SAM Party III”) (summary judgment decision in this and related SAM and

Working Families Parties proceedings)

United States Court of Appeals for the Second

Circuit:

Libertarian Party of New York v. New York

State Bd. of Elections, No. 22-44-CV, 2022 WL

17547364 (2d Cir. July 19, 2022) (“LPNY II”) (consolidating preliminary injunction and summary judgment

appeals).

Libertarian Party of New York v. New York

State Bd. of Elections, No. 22-44-CV, 2022 WL

10763416 (2d Cir. Oct. 19, 2022) (“LPNY III”) (affirming summary judgment decision)

SAM Party of New York v. Kosinski, 987 F.3d

267 (2d Cir. 2021) (“SAM Party II”) (affirming preliminary injunction decision in related action brought by

the SAM Party)

vii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDING ...........................iii

RULE 29.6 STATEMENT .......................................... iv

STATEMENT OF RELATED PROCEEDINGS ......... v

TABLE OF CONTENTS ........................................... vii

TABLE OF AUTHORIES ............................................ x

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED .............. 1

INTRODUCTION ........................................................ 4

FACTUAL BACKGROUND ...................................... 10

REASONS FOR GRANTING THE PETITION........ 22

The Court Should Grant Certiorari to

Resolve a Pervasive Split Among Lower

Courts Regarding the Proper

Application of the Anderson-Burdick

Analysis. ............................................... 22

viii

II.

The Court Should Grant Certiorari to

Resolve a Substantial Circuit Split

Regarding the Number of Signatures

Per Day States May Demand of Minor

Parties and Thereby Clarify the

Standard for Evaluating the Burden. . 32

III.

The Court Should Grant Certiorari to

Clarify That Fusion Parties’ Existence

Cannot Justify a State’s Exclusion of All

Other Minor Parties. ............................ 37

APPENDIX

Appendix A

Summary Order in the United States

Court of Appeals for the Second Circuit (October 19, 2022)............. App. 1

Appendix B

Opinion and Order in the United

States District Court for the Southern District of New York

(December 22, 2021) ................ App. 4

Appendix C

Judgment in the United States District Court for the Southern District

of New York

(December 22, 2021) .............. App. 40

Appendix D

Order Denying Petition for Rehearing En Banc in the United States

Court of Appeals for the Second Circuit (December 12, 2022) ....... App. 42

Appendix E

Opinion and Order in the United

States District Court for the Southern

District of New York (May 13, 2021),

Libertarian Party of New York v. New

York Bd. of Elections, 539 F. Supp. 3d

310 (S.D.N.Y. 2021)

(“LPNY I”)............................... App. 44

Appendix F

Opinion in the United States Court of

Appeals for the Second Circuit (February 10, 2021), SAM Party of New

York v. Kosinski, 987 F.3d 267 (2d

Cir. 2021) (“SAM Party II”) .... App. 81

Appendix G

Exhibit A – Jurisdictions by Lowest

Number of Signatures Per Day for

Party Qualification and Exhibit B –

Historical Performance of Unique

Candidates in Presidential (“P”) and

Gubernatorial (“G” Elections in New

York State Other Than the Two Major Candidates, 1920–2020 .... App. 99

TABLE OF AUTHORIES

Page(s)

Cases

Am. Party of Texas v. White,

415 U.S. 767 (1974) ...... 8, 20, 22, 32, 33, 34, 36, 37

Anderson v. Celebrezze,

460 U.S. 780 (1983) ...... 4, 6-8, 22, 24-32, 34, 35, 38

Andress v. Reed,

880 F.2d 239 (9th Cir.1989) ................................. 34

Barr v. Galvin,

626 F.3d 99 (1st Cir. 2010) ............................ 25, 33

Breck v. Stapleton,

259 F. Supp. 3d 1126 (D. Mont. 2017) ................. 35

Burdick v. Takushi,

504 U.S. 428 (1992) .. 4, 6-8, 22, 24-25, 27-32, 34-35

Buscemi v. Bell,

964 F.3d 252 (4th Cir. 2020) ................................ 25

California Democratic Party v. Jones,

530 U.S. 567 (2000) .............................................. 38

Clements v. Fashing,

457 U.S. 957 (1982) .......................................... 9, 39

Constitution Party of Pennsylvania v.

Cortes,

877 F.3d 480 (3d Cir. 2017)............................ 25, 29

Cowen v. Georgia Sec’y of State,

960 F.3d 1339 (11th Cir. 2020) ............................ 28

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) ........................................ 4, 6, 7

Daunt v. Benson,

956 F.3d 396 (6th Cir. 2020) .......................... 29, 30

Eu v. San Francisco Cnty. Democratic

Cent. Comm.,

489 U.S. 214 (1989) ............................................. 24

Gill v. Scholz,

2016 WL 4487836 (C.D. Ill. Aug. 25,

2016) ..................................................................... 35

Gill v. Scholz,

962 F.3d 360 (7th Cir. 2020) .......................... 26, 28

Gottlieb v. Lamont,

2022 WL 375525 (D. Conn. Feb. 8,

2022) ..................................................................... 34

Graveline v. Benson,

992 F.3d 524 (6th Cir. 2021) .................... 26, 29, 34

Green Party of Connecticut v. Garfield,

616 F.3d 213 (2d Cir. 2010).................................. 18

Green Party of Ga. v. Georgia,

551 F. App’x 982 (11th Cir. 2014) ........................ 28

Green Party of Tennessee v. Hargett,

791 F.3d 684 (6th Cir. 2015) ................................ 25

xii

Hall v. Merrill,

212 F. Supp. 3d 1148 (M.D. Ala.

2016), vacated as moot, 902 F.3d

1294 (11th Cir. 2018) ........................................... 35

Hatten v. Rains,

854 F.2d 687 (5th Cir. 1988) ................................ 30

Hurley v. Pub. Campaign Fin. &

Election Comm’n,

69 Misc. 3d 254 (N.Y. Sup. Ct. 2020)................... 11

Indep. Party of Fla. v. Sec’y, State of

Fla.,

967 F.3d 1277 (11th Cir. 2020) ............................ 27

Jenness v. Fortson,

403 U.S. 431 (1971) ................................................ 9

Jones v. McGuffage,

921 F. Supp. 2d 888 (N.D. Ill. 2013) .................... 35

LaRouche v. Kezer,

990 F.2d 36 (2d Cir. 1993).................................... 33

Libertarian Party of Arkansas v.

Thurston,

962 F.3d 390 (8th Cir. 2020) .......................... 28, 34

Libertarian Party of Connecticut v.

Lamont,

977 F.3d 173 (2d Cir. 2020).................................. 33

Libertarian Party of Fla. v. State of Fla.,

710 F.2d 790 (11th Cir. 1983) .............................. 34

xiii

Libertarian Party of New Hampshire v.

Gardner,

843 F.3d 20 (1st Cir. 2016) ............................ 28, 33

Libertarian Party of Ohio v. Blackwell,

462 F.3d 579 (6th Cir. 2006) ................................ 29

Memphis A. Philip Randolph Inst. v.

Hargett,

2 F.4th 548 (6th Cir. 2021) .................................. 29

Montana Green Party v. Jacobsen,

17 F.4th 919 (9th Cir. 2021) .......................... 26, 27

Munro v. Socialist Workers Party,

479 U.S. 189 (1986) ....................................... 23, 24

Nader v. Keith,

385 F.3d 729 (7th Cir. 2004) ................................ 34

Navarro v. Neal,

716 F.3d 425 (7th Cir. 2013) ................................ 25

Norman v. Reed,

502 U.S. 279 (1992) ............................................. 24

Person v. New York Bd of Elections,

467 F.3d 141 (2d Cir. 2006).................................. 11

Price v. New York Bd. of Elections,

540 F.3d 101 (2d Cir. 2008).............................. 7, 26

Republican Party of Ark. v. Faulkner

County, Ark.,

49 F. 3d 1289 (8th Cir. 1995) ............................... 30

xiv

Rogers v. Corbett,

468 F.3d 188 (3d Cir. 2006).................................. 33

Schulz v. Williams,

44 F.3d 48 (2d Cir. 1994) ..................................... 33

Soltysik v. Padilla,

910 F.3d 438 (9th Cir. 2018) ................................ 26

Stein v. Alabama Sec’y of State,

774 F.3d 689 (11th Cir. 2014) .............................. 34

Stone v. Bd. of Election Comm’rs for City

of Chicago,

750 F.3d 678 (7th Cir. 2014) ................................ 33

Storer v. Brown,

415 U.S. 724 (1974) ................... 8, 20, 22, 32-34, 36

Sweezy v. State of N.H. by Wyman,

354 U.S. 234 (1957) .............................................. 38

Timmons v. Twin Cities Area New

Party,

520 U.S. 351 (1997) ............................................. 10

Tripp v. Scholz,

872 F.3d 857 (7th Cir. 2017) .......................... 28, 33

Valenti v. Mitchell,

962 F.2d 288 (3d Cir. 1992).................................. 33

Williams v. Rhodes,

393 U.S. 23 (1968) .................................................. 9

Statutes and Constitutional Provisions

2020 N.Y. Laws Ch. 58 (S. 7508-B), Part

ZZZ .......................................................... 2, 5, 11, 12

28 U.S.C. § 1254(1) ...................................................... 1

Election Reform Act of 1992, 1992 Sess.

Law News of N.Y. Ch. 79 (S. 7922, A.

11505) ................................................................... 18

Ill. Comp. Stat. Ann. 5/7-2 ........................................ 14

Ill. Comp. Stat. Ann. 5/10-3 ...................................... 14

Ill. Comp. Stat. Ann. 5/10-4 ...................................... 14

New York Automatic Voter Registration

Act, 2020 Sess. Law News of N.Y.

Ch. 350 (S. 8806, A.8280) ..................................... 19

New York Constitution.............................................. 15

N.Y. Elec. Law § 1-104 ............................................ 2, 4

N.Y. Elec. Law § 6-138(4) .......................................... 11

N.Y. Elec. Law § 6-142 ............................................ 2, 4

N.Y. Elec. Law § 6- 158(9) ......................................... 11

N.Y. Elec. Law § 17-122(4) ........................................ 11

U.S. Const. amend. I ......................................... 1, 6, 24

U.S. Const. amend. XIV ................................ 1, 2, 6, 24

xvi

Other Authorities

Alan Chartock, Gov. Cuomo On WAMC’s

Roundtable 11/5/20, WAMC 26

(Nov. 5, 2020),

https://www.wamc.org/post/govcuomo-wamcs-roundtable-11520 ......................... 15

Armand Derfner & J. Gerald Hebert,

Voting Is Speech, 34 Yale L. & Pol’y

Rev. 471 (2016) ..................................................... 31

Bryan P. Jensen, Crawford v. Marion

County Election Board: The Missed

Opportunity to Remedy the Ambiguity and Unpredictability of Burdick,

86 Denv. U. L. Rev. 535 (2009) ............................ 31

Daniel P. Tokaji, Voting Is Association,

43 Fla. St. U. L. Rev. 763 (2016).......................... 31

Derek T. Muller, Ballot Speech, 58 Ariz.

L. Rev. 693 (2016)................................................. 31

Edward B. Foley, Voting Rules and

Constitutional Law, 81 Geo. Wash. L.

Rev. 1836 (2013) ................................................... 31

Emily Rong Zhang, Voting Rights

Lawyering in Crisis, 24 CUNY L.

Rev. 123 (2021) ..................................................... 30

xvii

Governor/Lt. Governor Election

Returns, NYS Bd. of Elec. (Dec. 15,

2014),

https://www.elections.ny.gov/NYSBO

E/elections/2014/general/2014Govern

or.pdf ....................................................................... 5

Joshua A. Douglas, Undue Deference to

States in the 2020 Election

Litigation, 30 Wm. & Mary Bill Rts.

J. 59 (2021) ........................................................... 30

Joshua S. Sellers & Justin WeinsteinTull, Constructing the Right to Vote,

96 N.Y.U. L. Rev. 1127 (2021) ....................... 30, 31

LP Presidential Nominee On The Ballot

in All 50 States Plus DC, Libertarian

Party (Sept. 16, 2020),

https://www.lp.org/lp-presidentialnominee-on-the-ballot-in-all-50states-plus-dc/....................................................... 17

Lydia Saltzbart, “A Dollar Ain’t Much If

You’ve Got It”: Freeing Modern-Day

Poll Taxes from Anderson-Burdick,

29 J.L. & Pol’y 522 (2021) .................................... 30

Pamela S. Karlan, Undue Burdens and

Potential Opportunities in Voting

Rights and Abortion Law, 93 Ind.

L.J. 139 (2018) ...................................................... 30

xviii

Rebecca C. Lewis, New York’s true twoperson race for governor, City &

State (July 7, 2022), https://www.cityandstateny.com/politics/2022/07/new-yorks-true-two-person-race-governor/373954/ ................................... 12

Report to the Governor and the

Legislature, Campaign Finance

Reform Commission (Dec. 1, 2019),

https://campaignfinancereform.ny.go

v/system/files/documents/2019/12/ca

mpaignfinancereformfinalreport.pdf ................... 10

Richard L. Hasen, The Democracy

Canon, 62 Stan. L. Rev. 69 (2009) ....................... 32

Richard L. Hasen, Three Pathologies of

American Voting Rights Illuminated

by the COVID-19 Pandemic, and

How to Treat and Cure Them, 19

Election L.J. 263 (2020) ....................................... 31

OPINIONS BELOW

The opinion of the court of appeals directly below

(App. 1) is not reported but is available at 2022 WL

10763416. The district court’s opinion from which Petitioners more recently appealed (App. 4) is reported

at 576 F. Supp. 3d 151. The district court’s opinion

from which Petitioners first appealed, and which appeal was consolidated with that of the second opinion

(App. 44), is reported at 539 F. Supp. 3d 310.

JURISDICTION

The judgment of the court of appeals was entered

on October 19, 2022. Petitioners filed a petition for rehearing en banc on November 2, 2022. It was denied

and final judgment was entered by the court of appeals

on December 12, 2022. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED

Amendment I to the U.S. Constitution reads in

relevant part: “Congress shall make no law … abridging the freedom of speech, … or the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances.”

Amendment XIV to the U.S. Constitution

reads in relevant part: “No state shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.”

2020 N.Y. Laws Ch. 58 (S. 7508-B), Part ZZZ

reads in relevant part (capitalized text is added;

bracketed text is deleted):

§ 4. Article 14 of the election law is amended by adding

a new title II to read as follows:

TITLE II

PUBLIC FINANCING

…

§ 9. Subdivision 1 of section 6-142 of the election law,

as amended by chapter 79 of the laws of 1992, is

amended to read as follows:

1. An independent nominating petition for candidates to be voted for by all the voters of the state must

be signed by at least [fifteen] FORTY-FIVE thousand

voters, OR ONE PERCENT OF THE TOTAL NUMBER OF VOTES, EXCLUDING BLANK AND VOID

BALLOTS, CAST FOR THE OFFICE OF GOVERNOR AT THE LAST GUBERNATORIAL ELECTION,

WHICHEVER IS LESS, of whom at least [one] FIVE

hundred, OR ONE PERCENT OF ENROLLED VOTERS, WHICHEVER IS LESS, shall reside in each of

one-half of the congressional districts of the State.

§ 10. Subdivision 3 of section 1-104 of the election law

is amended to read as follows:

3. The term “party” means any political organization

which [at the last preceding election for governor

polled at least fifty thousand votes for its candidate for

governor], EXCLUDING BLANK AND VOID BALLOTS, AT THE LAST PRECEDING ELECTION FOR

GOVERNOR RECEIVED, AT LEAST TWO PERCENT OF THE TOTAL VOTES CAST FOR ITS

CANDIDATE FOR GOVERNOR, OR ONE HUNDRED THIRTY THOUSAND VOTES, WHICHEVER

IS GREATER, IN THE YEAR IN WHICH A GOVERNOR IS ELECTED AND AT LEAST TWO PERCENT

OF THE TOTAL VOTES CAST FOR ITS CANDIDATE FOR PRESIDENT, OR ONE HUNDRED

THIRTY THOUSAND VOTES, WHICHEVER IS

GREATER, IN A YEAR WHEN A PRESIDENT IS

ELECTED.

§ 11. Severability. The component clauses, sentences,

subdivisions, paragraphs, sections, and parts of this

law shall be interpreted as being non-severable from

the other components herein. If any clause, sentence,

subdivision, paragraph, section or part of this act be

adjudged by any court of competent jurisdiction to be

invalid, such judgment shall invalidate the remainder

thereof, and shall not be confined in its operation to

the clause, sentence, subdivision, paragraph, section

or part thereof directly involved in the controversy in

which such judgment shall have been rendered.

INTRODUCTION

This ballot access case challenges the constitutionality of some of the most impactful restrictions in recent history—ones that will indefinitely deprive New

York voters of representation by independent minor

parties. It also raises important questions relating to

the proper application of the Anderson-Burdick analysis, which have led to conflicting lower court decisions

notwithstanding this Court’s plurality decision in

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181

(2008).

Unlike other states that provide multiple routes to

the ballot for political parties, including most notably

a dedicated party petition, New York offers only one:

first, a party must conduct an independent petitioning

drive to run a gubernatorial or presidential candidate

and meet a certain threshold of valid signatures from

New York voters (the “petition threshold”). N.Y. Elec.

Law § 6-142. That candidate must then garner enough

votes beyond a certain threshold (the “vote threshold”)

to grant the party official statutory recognition and access to the ballot in subsequent years. N.Y. Elec. Law

§ 1-104. The party continues to enjoy these benefits

only if its gubernatorial and presidential candidates

meet the vote threshold in each subsequent election.

The petition threshold by which a prospective party

can attain party status was 15,000 valid signatures

from 1922 to 1971 and 1992 to 2020. App. 48. The vote

threshold for a party to retain qualified status was set

in 1936 at 50,000 votes in gubernatorial elections. Id.

In April 2020, Governor Andrew Cuomo included

in the New York budget by far the largest increase in

state history in requirements for political parties to

qualify for the ballot. These increases were bundled—

non-severably—with a new public campaign finance

regime. After limited debate, the legislature passed

these increases into law. Specifically, it tripled the

threshold of voter signatures required for a statewide

independent nominating petition to qualify a new

party from 15,000 to 45,000 or 1% of the previous gubernatorial vote, whichever is less, and quintupled its

geographic distribution requirement from at least 100

to 500 signatures from voters residing in each of onehalf of New York’s congressional districts. 2020 N.Y.

Laws Ch. 58 (S. 7508-B), Part ZZZ (“Part ZZZ”), § 10.

It also raised the threshold for a party to retain qualification from 50,000 votes in gubernatorial elections to

130,000 votes or 2% of the vote, whichever is greater,

in both gubernatorial and presidential elections—

meaning every two years instead of every four. Id.,

§ 9. 1

After the 2020 election, the Libertarian and Green

Party presidential candidates failed to reach the vote

threshold, the Parties were decertified, along with two

others. Thereafter, they filed suit to challenge the

1 The 1% figure for the petition threshold will always exceed the

45,000 ceiling and can be largely ignored. On the other hand, the

2% figure for the vote threshold will usually be the determining

figure, but lower-turnout gubernatorial elections such as that in

2014 can lead the 130,000 figure to operate instead and raise the

effective percentage. For example, the 2014 election resulted in a

3.4% threshold. See Governor/Lt. Governor Election Returns,

NYS Bd. of Elec. (Dec. 15, 2014), https://www.elections.ny.gov/NYSBOE/elections/2014/general/2014Governor.pdf.

thresholds, asserting First and Fourteenth Amendment claims. In the 2022 gubernatorial election, no

candidate successfully petitioned onto the ballot and

New York voters were presented with only two candidates—the Republican and Democratic nominees. Petitioners’ candidates attempted to collect enough signatures, but Respondents determined that they failed

to do so.

For forty years, this Court has decided constitutional challenges to state election laws by applying the

Anderson-Burdick analysis developed in Anderson v.

Celebrezze, 460 U.S. 780 (1983), and elaborated in

Burdick v. Takushi, 504 U.S. 428 (1992). Yet in several

significant cases, the Court has suggested the analysis

to be more deferential to states. This has led to confusion among and inside federal circuits, as this Court

recognized 15 years ago in the splintered opinion in

Crawford. Since Crawford, the confusion among lower

courts has only deepened.

For example, in sustaining the thresholds at issue

here, the district court and the court of appeals did not

seriously assess the “character and magnitude” of the

burden imposed on the Libertarian and Green Parties

of New York (“LPNY” and “GPNY,” respectively), their

candidates, and their voters. Anderson, 460 U.S. at

789. Instead, despite the Court’s admonition not to impose any “litmus-paper test” (id.), the courts primarily

viewed the thresholds as percentages and compared

them to percentages selectively chosen from other

states and upheld in prior cases. See App. 22–26, 92–

94. The courts dismissed or ignored various exacerbating aspects of New York’s electoral regime, including

most importantly the 42-day window to collect 45,000

valid signatures. See App. 26–28. Further, having

found no severe burden, the courts below did not “identify and evaluate the precise interests put forward by

the State as justifications,” “determine the legitimacy

and strength of each of those interests,” and “consider

the extent to which those interests make it necessary

to burden the plaintiff’s rights.” Anderson, 460 U.S. at

789. Rather, they accepted the State’s proffered justifications at an abstract level of analysis—no matter

how weak or pretextual in their specifics—and merely

found the thresholds “coherent,” “rational,” “reasonable,” and “justified under the ‘quite deferential’ review.” App. 33–35, 97. The Second Circuit conducted

this superficial review even though in previous election law cases it has not taken the State’s justifications at face value, as it did here. See, e.g., Price v. New

York Bd. of Elections, 540 F.3d 101, 108–10 (2d Cir.

2008) (finding restriction on primary absentee balloting “non-trivial” and the State’s proffered justification

as non-substantive, “contrived”, and outweighed by

the burden it imposed). Similar inconsistencies exist

among district courts and circuit courts when applying

the Anderson-Burdick analysis in and outside the minor party ballot access context.

In ballot access cases, even were a court not to find

a “severe burden,” the state must provide a real and

substantial justification for its precise interests in increasing thresholds to the extent that it did. See Crawford, 553 U.S. at 191 (“However slight that burden

may appear … it must be justified by relevant and legitimate state interests sufficiently weighty to justify

the limitation.” (citation and quotation marks omitted)). As this Court has acknowledged, state legislatures have every incentive to eliminate minor parties

and “more careful judicial scrutiny” is necessary to

identify pretextual legislation. Anderson, 460 U.S. at

793. In practice, however, this admonition is honored

in the breach, if at all. This case is therefore an ideal

vehicle for the Court to provide guidance on the proper

application of the Anderson-Burdick analysis, and to

ensure that it provides lower courts with a meaningful

framework for the constitutional review of state election laws.

This case also raises issues of critical importance

not only to independent minor parties in New York,

but also to the proper adjudication of ballot access

challenges in general.

First, the courts below dismissed Petitioners’ concern that the new petition threshold requires the collection of over 1,071 valid signatures-per-day, on average, and relied exclusively on a comparison to prior

precedent—notably this Court’s pre-Anderson cases

Storer v. Brown, 415 U.S. 724, 740 (1974) and Am.

Party of Texas v. White, 415 U.S. 767, 786–87 (1974).

See App. 26–28. The First, Third, Seventh, Ninth, and

Eleventh Circuits have similarly dismissed comparable concerns regarding the time permitted to collect

signatures, while the Sixth and Eighth Circuits, as

well as several recent district courts, have properly addressed such concerns in their application of the Anderson-Burdick analysis.

Second, this Court has recognized that ballot access obstacles impose a severe burden warranting

strict scrutiny if they exclude virtually all minor parties. See Clements v. Fashing, 457 U.S. 957, 965 (1982)

(plurality op.) (“the State may not act to maintain the

‘status quo’ by making it virtually impossible for any

but the two major parties to achieve ballot positions

for their candidates”); Jenness v. Fortson, 403 U.S.

431, 438 (1971) (noting that restrictions on third parties’ ballot access are unconstitutional if they operate

to “freeze the political status quo”); Williams v.

Rhodes, 393 U.S. 23, 24 (1968) (striking “series of election laws” that “made it virtually impossible” for any

non-major party to gain ballot access). Here, the

courts below found that the thresholds did not “virtually exclude minor parties from the ballot” because

two “fusion” parties survived the imposition of the new

thresholds in 2020: the Working Families Party

(“WFP”) and the Conservative Party. SAM Party II,

987 F.3d at 275–76; SAM Party III, 576 F. Supp. 3d at

165.

But fusion parties attain and retain ballot access

solely by cross-endorsing major party candidates with

those candidates’ consent. They in no way act like independent minor parties who pursue unique ideological goals and constituencies as do the Libertarian and

Green Parties—two of the most successful minor parties in United States history. This Court’s “virtual exclusion” jurisprudence focuses on the ability of parties

to run their own candidates. Moreover, “[a]ll political

ideas cannot and should not be channeled into the programs of our two major parties.” Williams, 393 U.S. at

39. The Constitution does not permit the state to force

minor parties to participate in the electoral process exclusively by cross-nominating major party candidates,

and here, Petitioners cannot do so because they do not

share the major parties’ political platforms. In 1997,

this Court held that the availability of “fusion” has

only minimal constitutional relevance and is therefore

not mandated. See Timmons, 520 U.S. at 362–63. Now

the Court should hold that the corollary is also true:

the availability of fusion cannot make constitutional

what is otherwise unconstitutional.

FACTUAL BACKGROUND

In 2019, Governor Andrew Cuomo and the New

York Legislature created a Campaign Finance Commission (“Commission”) whose recommendations

would become law unless acted upon by the Legislature. See Part XXX of the Laws of 2019, Chapter 59,

Bill No. S01509C. In conjunction with a new publiclyfunded campaign finance regime, the Commission recommended increases to the petition and vote thresholds discussed herein: (1) increasing the petition

threshold for independent nominating petitions for

statewide office to 45,000 signatures or 1% of votes,

whichever is less, for the last gubernatorial election;

and (2) increasing the vote threshold to 2% of the votes

for governor or 130,000, whichever is higher, and applying it to presidential elections as well. Report to the

Governor and the Legislature, Campaign Finance Reform Commission (Dec. 1, 2019), p.5, https://campaignfinancereform.ny.gov/system/files/documents/2019/12/campaignfinancereformfinalreport.pdf

(“Commission Report”). On March 12, 2020, a state

court found that the 2019 statute authorizing the

Commission was unconstitutional. Hurley v. Pub.

Campaign Fin. & Election Comm’n, 69 Misc. 3d 254

(N.Y. Sup. Ct. 2020). In response, Governor Cuomo

used the crisis COVID-19 budget to pass the defunct

Commission recommendations through the legislature

via amendments to a transportation infrastructure

bill on April 1, 2020. Part ZZZ, supra; App. 53. With

one day of debate in each house, the bill passed and

was signed by the Governor on April 3, 2020. Id.

Even before the 2020 enactment of the increased

petition and vote thresholds, New York imposed several onerous restrictions on petitioning by statewide

candidates. Signatures must be gathered over a 42day period and are due 23 weeks before the general

election, which falls in May. N.Y. Elec. Law §§ 6138(4), 6- 158(9). A signature is only counted if it is the

first a voter has signed for the office concerned, including any designating petitions for party primary qualification. Id. § 6-138(1). Due to the formalities involved,

most candidates rely on paid circulators, but New

York bans payment based on circulators’ productivity,

i.e., payment for each signature. See Person v. New

York Bd of Elections, 467 F.3d 141, 143 (2d Cir. 2006);

N.Y. Elec. Law § 17-122(4).

New York is also unique in having a strong tradition of fusion parties. See Timmons, 520 U.S. at 357 &

n.7. Multiple parties may nominate the same candidate and list them prominently on their own ballot line

(with the candidate’s consent). App. 86. Fusion parties

like the WFP and Conservative Party do so consistently, especially for elections in which they must meet

the vote threshold to maintain party status and ballot

access. See App. G, Ex. B (showing last unique Conservative Party candidate was in 1990).

The increased thresholds applied for the first time

in the 2020 presidential election. LPNY, the New York

affiliate of the Libertarian Party, had consistently run

candidates by petition for governor and president

since 1974 (except 1986), but failed to meet the 50,000

vote threshold until 2018. App. 17, 53. GPNY, the New

York affiliate of the Green Party, was formed in 1992

and met the vote threshold in 1998, 2010, 2014, and

2018. App. 17–18, 53–54. The Libertarian and Green

Parties are the third and fourth largest political parties, respectively in the United States. Id.

In 2020, all minor parties but the fusion parties

WFP and Conservative Party (who both cross-nominated major party candidates) failed to meet the vote

threshold and lost party status. Id. In 2022, LPNY and

GPNY attempted to petition gubernatorial candidates

onto the ballot, but failed to meet the increased petition threshold. New York voters were thus presented

with only two candidates—a Republican and Democrat—albeit appearing on four party lines. 2

In 2020, Petitioners, the SAM Party, and WFP separately filed suit to challenge the election law changes

in Part ZZZ, each taking different litigation positions.

See SAM Party I, 483 F. Supp. 3d at 249–50, 54–55;

App. 5–6. The SAM Party made a discrete challenge

2 See Rebecca C. Lewis, New York’s true two-person race for governor, City & State (July 7, 2022), https://www.cityandstateny.com/politics/2022/07/new-yorks-true-two-person-race-governor/373954/.

based on the new requirement to retain qualification

in presidential elections—claiming that it could not

constitutionally be forced to run such candidates. Id.

The WFP challenged the vote threshold and questioned the State’s campaign finance justification. Id.;

see also SAM Party I, 483 F. Supp. 3d at 264 & n.9.

Petitioners, however, offered a full challenge to the

vote and petition thresholds operating in conjunction

within the overall election scheme. App. 7, 55; see also

SAM Party I, 483 F. Supp. 3d at 250 n.1 (finding WFP

not to have standing to challenge the petition threshold).

The SAM Party and WFP moved first for a preliminary injunction, which was denied by the district

court. SAM Party I, 483 F. Supp. 3d 245. The SAM

Party appealed. Petitioners moved for a preliminary

injunction, which was denied. App. 79–80. Petitioners

appealed. The Second Circuit affirmed the denial

against the SAM Party while Petitioners’ appeal was

pending. App. 98 (SAM Party II). Almost exclusively

on the basis of SAM Party II, Respondents then moved

for summary judgment in all cases, which was

granted. App. 38. Only Petitioners moved forward

with an appeal of summary judgment, which was consolidated with the prior pending appeal. LPNY II,

2022 WL 17547364, at *1 (2d Cir. July 19, 2022). The

Second Circuit summarily affirmed summary judgment upon de novo review and denied reconsideration

en banc. App. 3, 43.

In opposing summary judgment, Petitioners relied

on the following demonstrations and arguments. See

Brief for Plaintiffs-Appellants, No. 21-1464, ECF 119,

pp. 24–31 (2d Cir. Mar. 21, 2022).

• The increased petition threshold is by far the

most demanding among states in terms of valid signatures required to be collected per day in order to attain

party status—over 1,071 valid signatures-per-day

over a short 42-day period. The next most difficult demands almost four times less. See App. G, Ex. A; 10

Ill. Comp. Stat. Ann. 5/7-2, 5/10-3, 5/10-4; No. 1:20-cv05820, ECF No. 46-6, pp. 35–39. Indeed, New York has

the shortest period of any state except Minnesota and

Rhode Island, which also provide a party petition. Declaration of Richard Winger, No. 1:20-cv-05820, ECF

No. 84-2, pp. 10–11; App. G, Ex. A.

• The increased vote threshold is near the top in

terms of percentage of the vote required relative to

other states, when discounting those which allow alternative routes to party status (unlike New York).

Declaration of Richard Winger, SAM Party I, No. 1:20cv-00323, ECF No. 67, ¶¶ 16–19.

• The increased petition threshold is the third

highest in the nation in absolute terms when the easier method in each state is compared for the 2024 presidential election. Declaration of Richard Winger, No.

1:20-cv-05820, ECF No. 84-2, p.6 & Appendix A.

• At least for president in 2024, New York has the

nation’s third earliest petition deadline, when the easier method in each state is compared. Declaration of

Richard Winger, No. 1:20-cv-05820, ECF No. 84-2,

p.10 & Appendix B.

• Governor Cuomo publicly stated that he intended to eliminate all but what he considered “legitimate” parties. Alan Chartock, Gov. Cuomo On

WAMC’s Roundtable 11/5/20, WAMC 26 (Nov. 5,

2020), https://www.wamc.org/post/gov-cuomo-wamcsroundtable-11520; ECF No. 46-6, p.25.

• The thresholds were introduced by Governor

Cuomo and passed over a matter of days as part of an

emergency pandemic budget bill that the legislature

was not capable of seriously debating or voting down,

arguably in violation of the New York Constitution.

A31–36; A45–46; A61–62. 3

• The specific level and unique structure of the

vote threshold (i.e., that it takes the higher of an absolute number or a percentage) is untethered to ensuring a modicum of support or other state interest and

is only plausibly calibrated to ensure that minor parties are eliminated in low turnout elections, particularly in gubernatorial elections such as that of 2014.

A40–41. The Commission Report’s stated rationale for

reaching the specific level of the voter threshold ignored this issue and purported to adjust for voter turnout several times over. A41–42.

• The recent history of non-fusion party performance shows that the increased voter threshold was

set at a level no such contemporary party could meet,

especially for the 2020 election. A37–38.

3 These references are to the appendix in the Second Circuit. See

No. 21-1464, ECF 40.

• The long-term history of non-fusion minor party

performance shows that the voter threshold virtually

eliminates all such parties. In the last century, only

the American Labor Party in 1948-1952 running Vice

President Henry Wallace and the Independence Party

in 1996-2000 running billionaires Ross Perot and Tom

Golisano would have met the increased voter qualification threshold in consecutive elections to qualify as

a party for a full four-year term—and neither party

had to overcome the increased petition threshold at

the time. See App. G, Ex. B. Other one-cycle successes

would have had much of their resources sapped by the

increased petition threshold. See id.; No. 1:20-cv05820, ECF No. 46-6, pp. 40–43.

• Plaintiffs-Appellants produced testimony establishing the great sums and effort that GPNY and

LPNY have dedicated to petitioning efforts under the

prior threshold and, based on this experience, they established without challenge that they do not have the

volunteer or financial capacity to meet the increased

threshold going forward. A94–96, A116–127; see App.

54–55.

• Past statewide petitioning efforts have rarely

ever approached the 90,000 raw signatures a successful petitioning campaign would have to submit to resist a challenge. No. 1:20-cv-05820, ECF No. 84, p.25.

• The petition threshold’s five-fold increase to its

geographic distribution requirement, a requirement

only found among five states, makes signature collection inefficient and diverts volunteer time and effort.

A123; Declaration of Richard Winger, No. 1:20-cv-

05820, ECF No. 84-2, p.10. New York’s petition regime

has other widely recognized restrictive aspects. A122–

24; Declaration of Richard Winger, No. 1:20-cv-05820,

ECF No. 84-2, p.10; see supra, at 11. E.g., Jenness, 403

U.S. at 438–39 & n.15 (describing New York’s still present requirement that a petition signer can only sign

one petition for each office a “suffocating restriction…

upon the free circulation of nominating petitions”).

• The prior thresholds were sufficient to protect

New York’s legitimate regulatory interests. A37–40.

For example, the number of non-major party candidates for presidential and gubernatorial elections has

been steady at two to three since 2012. See App. G, Ex.

• The increased thresholds dealt a one-two punch

to eliminate all non-fusion minor parties from the ballot in 2020 by operation of the vote threshold, and keep

them off with an impossible petition threshold. The

predictable outcome is that New York’s approximately

13 million voters will be given the option in most races

to choose between only two major party candidates

(although they may be cross-nominated by fusion parties)—as occurred in 2022. And it is highly unlikely

that a minor party will ever again attain 50-state ballot access for its presidential candidate, an important

marker nationwide for minor party legitimacy. 4

4 See LP Presidential Nominee On The Ballot in All 50 States Plus

DC, Libertarian Party (Sept. 16, 2020), https://www.lp.org/lppresidential-nominee-on-the-ballot-in-all-50-states-plus-dc/.

Petitioners also challenged the Respondents’ proffered justifications—such as they were. The courts below, however, accepted them at face value. The “primary” state interest was to save costs for the new campaign finance program, although Respondents did not

account for the many ways in which the program independently prevents funding candidates without

substantial support. App. 30–32, 71–73. However, the

drain on public funds is likely to be minimal in light of

the law’s other caps and qualifications that would prevent any public financing of minor party candidates.

See App. 74 n.12. Furthermore, the State had the

ready alternative of imposing a separate threshold for

minor party candidates to access public funds, not the

ballot. See Green Party of Connecticut v. Garfield, 616

F.3d 213, 231 (2d Cir. 2010).

Respondents also produced superficial support

that the threshold increases “ensur[e] a sufficient

modicum of public support, [and] reduc[e] voter confusion and ballot overcrowding.” App. 33–34, 75–76. But

they merely pointed to the number of candidates in

past elections and produced several cherry-picked ballot examples to allegedly show how confusing they can

be. App. 75. Notably, Respondents claimed that the increases were to account for the growth in registered

voters since 1936 and 1922, when each threshold was

allegedly set. 5 App. 15, 48, 52, 76. However, as Petitioners demonstrated, this was a manufactured, posthoc, and incomplete rationale. The original Commission Report alleged that it was basing the 130,000 vote

5 In fact, the previous petition threshold was set in 1992, reduced

from 20,000. See Election Reform Act of 1992, 1992 Sess. Law

News of N.Y. Ch. 79 (S. 7922, A. 11505).

threshold on increases in voter turnout, not voter registration, which makes more sense because voter registration is manipulated by many other factors like the

State’s recent adoption of automatic registration and

does not reflect increased voter engagement. 6 Voter

turnout, however, has not increased nearly enough to

justify 130,000 votes or 2%. Nevertheless, the manufactured voter registration basis does not explain or

account for the 2% aspect of the threshold nor the 1992

reduction in signatures. The courts below did not address these discrepancies.

In denying Petitioners’ motion for preliminary injunction, the district court held that Petitioners failed

to demonstrate a probability of success on the merits.

App. 78. It concluded that the vote threshold does not

impose a severe burden because the WFP and Conservative Party requalified under them in 2020 and

because “courts have upheld ballot access provisions

requiring demonstrations of a much higher ‘modicum

of support’ than the quantum the amended New York

Election Law requires.” App. 61. It also concluded that

“the independent nominating petition is a viable

means for candidates to obtain ballot access and the

recently-enacted Petition Requirement has not foreclosed that avenue of ballot access” because “other

courts have upheld” higher absolute requirements in

number of signatures. App. 63–64. The court dismissed the import of the 1,071 signatures-per-day requirement and Petitioners’ testimony regarding their

inability to meet the increased petition threshold by

6 See New York Automatic Voter Registration Act, 2020 Sess. Law

News of N.Y. Ch. 350 (S. 8806, A.8280).

simply analogizing to Storer and Am. Party. App. 65–

68. The court failed to take into account any other exacerbating aspects of New York’s election regime except the increased geographic distribution requirement, which it wholly dismissed “[i]n view of the fact

that the majority of New York’s congressional districts

are concentrated in the New York City metropolitan

area.” App. 70–71 n.11.

The court then found Respondents’ proffered interests to be “valid,” and that the thresholds “further[ed]”

them and were “reasonable” and “nondiscriminatory.”

App. 71–76. The court found that the thresholds “help[

] to ensure that candidates appearing on the ballots

enjoy a ‘modicum’ of support, thereby assisting in

maintaining an organized, uncluttered ballot; preventing voter confusion and frustration; avoiding

fraudulent and frivolous candidacies; and assisting

the maintenance of an efficient public finance system.”

App. 71. Regarding the petition threshold specifically,

the court proclaimed that “[r]aising the number of signatures required is a reasonable, direct, and narrowlytailored method for assuring that a candidate enjoys

sufficient public support before allowing such candidate to appear on the ballot.” App. 76. Notably, the

court did not address Petitioners’ critiques of Respondents’ claims, nor did it find any justification for the extent to which the thresholds were increased. Id.

In SAM Party II, the Second Circuit rejected the

SAM Party’s entitlement to a preliminary injunction

and reached certain conclusions consistent with LPNY

I. It held that the vote and petition thresholds were

not severe burden based on their absolute number,

finding that “New York’s 2% threshold is in the middle

of the pack among the three-dozen states that require

parties to obtain a certain level of support in a

statewide race” and that other courts have “approved

of thresholds as high and higher.” App. 92–93. 7 It then

approved generally of the State’s purported interests

in “gauging whether a party continues to enjoy a sufficient ‘modicum’ of support deserving automatic ballot access” and “in conserving limited resources devoted to public financing of state elections.” App. 95–

96. The court insisted that no “‘elaborate, empirical

verification’ of the State’s justifications” was necessary, accepted the interests at face value, and found

that Respondents adequately offered a “coherent account” of why the new law “will help to guard against

disorder and waste.” App. 97.

On summary judgment, the district court applied a

substantially similar analysis. App. 20–35. It added

that New York’s vote threshold is “in the middle of the

pack” among states and the Second Circuit’s endorsement of “New York’s interest in preserving the public

fisc.” App. 23–24, 31–32. The district court concluded

that increasing the threshold was a “reasonable way”

and a “reasonable step[ ]” to accomplish Respondents’

goals and Respondents offered a “coherent account”

how it furthered them. App. 33–35. Again, the court

refused to evaluate the extent or appropriateness of

the threshold increases. App. 32–34.

7 This observation is incorrect because it fails to account for the

easiest route for parties to qualify in each state. See App. G, Ex.

REASONS FOR GRANTING THE PETITION

The Court Should Grant Certiorari

to Resolve a Pervasive Split Among

Lower Courts Regarding the Proper

Application of the Anderson-Burdick Analysis.

The Anderson-Burdick analysis emerges from this

Court’s recognition that the ability of minor political

parties to participate in elections is key to voters’ fundamental rights to freedom of association and equal

protection. Anderson, 460 U.S. at 786 n.7.

In Williams, 393 U.S. 23, this Court struck down

an Ohio election regime that required a petition of 15%

of the gubernatorial vote for a new party to run a candidate for president while the major parties had automatic ballot access. The Court found that this arrangement “places burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the

right of qualified voters, regardless of their political

persuasion, to cast their votes effectively. Both of

these rights, of course, rank among our most precious

freedoms.” Id. at 30. The Court thus scrutinized and

rejected Ohio’s speculative argument that the threshold was intended to prevent voter confusion from an

overly crowded ballot. Id. at 33.

Following Williams, however, the Court upheld

several ballot access regimes and thresholds. See Jenness, 403 U.S. 431; Storer, 415 U.S. 724; Am. Party,

415 U.S. 767. In Anderson, the Court then established

its “weighing” analysis:

[A court] must first consider the character and

magnitude of the asserted injury to the rights

protected…. It then must identify and evaluate

the precise interests put forward by the State

as justifications for the burden imposed by its

rule. In passing judgment, the Court must not

only determine the legitimacy and strength of

each of those interests; it also must consider the

extent to which those interests make it necessary to burden the plaintiff’s rights.

460 U.S. at 789. The Court warned that “[c]onstitutional challenges to specific provisions of a State’s election laws… cannot be resolved by any ‘litmus-paper

test’ that will separate valid from invalid restrictions”

and “[t]he results of this evaluation will not be automatic.” Id. Notably, the Court acknowledged that

state legislatures have no incentive to consider minor

parties’ interests and “more careful judicial scrutiny”

is appropriate. Id. at 793 n.16. But subsequent decisions have undermined that conclusion, leading to

confusion and conflicting decisions among the lower

courts.

In Munro v. Socialist Workers Party, the Court upheld a 1% vote threshold in Washington’s blanket primary as a precondition to ballot access for minor party

candidates. 479 U.S. 189, 189 (1986). The Court stated

that “[w]e have never required a State to make a particularized showing of the existence of voter confusion,

ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access.” Id. at 194–95 (emphasis

added). The Court excused States from proving “actual

voter confusion, ballot overcrowding, or the presence

of frivolous candidacies” as long as “the response is

reasonable and does not significantly impinge on constitutionally protected rights.” Id. at 195–96 (emphasis added). In Eu v. San Francisco Cnty. Democratic

Cent. Comm., however, the Court reaffirmed that “[i]f

the challenged law burdens the rights of political parties and their members, it can survive constitutional

scrutiny only if the State shows that it advances a

compelling state interest.” 489 U.S. 214, 222 (1989).

And in Norman v. Reed, the Court required “the

demonstration of a corresponding interest sufficiently

weighty to justify the limitation.” 502 U.S. 279, 288–

89 (1992) (emphasis added).

In Burdick, the Court reaffirmed the AndersonBurdick weighing analysis, but clarified that only “severe” restrictions are subject to strict scrutiny requiring narrow tailoring. 504 U.S. at 432–34. The Court

also stated that “when a state election law provision

imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment

rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. at 434 (emphasis added). The Court has

subsequently called this a “less exacting review,” Timmons, 520 U.S. at 358, but importantly, the Court has

never established a standard for determining whether

a state election law is reasonable or not.

As a result, many courts, such as those below, have

understood Burdick to establish a new standard that

allows a court, upon finding no severe burden, to defer

to the State without examining evidence, “precise” interests, or the legitimacy or strength thereof. See, e.g.,

Barr v. Galvin, 626 F.3d 99, 110 (1st Cir. 2010) (“there

need be only a rational basis undergirding the regulation in order for it to pass constitutional muster”);

Buscemi v. Bell, 964 F.3d 252, 263 (4th Cir. 2020)

(“Election laws that impose only a ‘modest’ burden will

be upheld if the state can ‘articulate’ its ‘important

regulatory interests.’”). Others, meanwhile, apply the

full Anderson-Burdick analysis, including the requisite scrutiny of asserted state interests. See, e.g., Constitution Party of Pennsylvania v. Cortes, 877 F.3d 480,

484–85 (3d Cir. 2017) (“The essential difficulty that a

state faces in justifying a county-based signaturegathering requirement … is that, in the final step of

Anderson—’consider[ing] the extent to which [the

state’s asserted] interests make it necessary to burden

the plaintiff’s rights’—alternatives to county-based requirements are readily available.”). These splits manifest even within circuits. Compare SAM Party II, App.

97 (“Under the quite deferential review at this step,”

the state setting forth “a coherent account of why the

challenged amendments will help to guard against

disorder and waste… is enough to justify the burden

the requirement imposes”) (cleaned up)); Green Party

of Tennessee v. Hargett, 791 F.3d 684, 693 (6th Cir.

2015) (“If the burden is ‘reasonable’ and ‘nondiscriminatory,’ the statute will be subject to rational basis

and survive if the state can identify ‘important regulatory interests’ to justify it.”); Navarro v. Neal, 716

F.3d 425, 432 (7th Cir. 2013) (“the speculative concern

that altering the challenged signature requirement

would lead to a large number of frivolous candidates

qualifying for the ballot and, consequently, voter confusion is sufficient”) (refusing to require any demonstration that the requirement actually serves the

stated important interest); Montana Green Party v.

Jacobsen, 17 F.4th 919, 926 (9th Cir. 2021) (“Because

Plaintiffs have not shown a severe burden on ballot

access, Montana may justify its election scheme by

pointing to ‘important regulatory interests.’”); with

Price, 540 F.3d at 108–09 (2d Cir.) (rejecting rational

basis review and stating that “the court must actually

‘weigh’ the burdens imposed on the plaintiff against

‘the precise interests put forward by the State,’ and

the court must take ‘into consideration the extent to

which those interests make it necessary to burden the

plaintiff’s rights.’”); Graveline v. Benson, 992 F.3d 524,

535 (6th Cir. 2021) (“Many regulations fall somewhere

between these two extremes. When a regulation imposes an intermediate burden, ‘courts engage in a flexible analysis, weighing the burden on the plaintiffs

against the state’s asserted interest and chosen means

of pursuing it.’”); Gill v. Scholz, 962 F.3d 360, 364–65

(7th Cir. 2020) (Anderson and Crawford “reject cursory or perfunctory analyses; precedent requires

courts to conduct fact-intensive analyses when evaluating state electoral regulations.”); Soltysik v. Padilla,

910 F.3d 438, 448 (9th Cir. 2018) (“we cannot agree

that even a speculative concern of voter confusion is

sufficient as a matter of law to justify any regulation

that burdens a plaintiff’s rights, especially where that

burden is more than de minimis” (cleaned up)) (requiring the state to produce evidence).

The Court took up this split in 2008 in Crawford,

but it ended up creating another of its own. Justice

Scalia’s concurrence claimed that Burdick established

a “two-track approach” wherein non-severe burdens

can be evaluated at a high level of generality that is

deferential to the state. 553 U.S. at 204–06. In contrast, Justice Stevens’ plurality opinion and Justice

Souter’s dissent (constituting a majority) reiterated

that the Anderson-Burdick standard is a “slidingscale” approach and not a “novel deferential important

regulatory interests standard,” as claimed by Justice

Scalia. Id. at 190 n.8, 210. Justice Souter also took issue with the plurality’s failure to “insist enough on the

hard facts that our standard of review demands.” Id.

at 210. Indeed, the plurality largely avoided the question by focusing on a purported lack of evidence regarding the harm to specific voters. Id., at 1622–23.

Thus, Crawford continued a general deference to the

State and failed to resolve lower courts’ confusion regarding the proper application of the Anderson-Burdick analysis.

Many circuits have applied relatively superficial

analyses. See, e.g., Jacobsen, 17 F.4th 919 (9th Cir.)

(minor political party had to submit signatures from

registered voters equal to 5% of total votes cast for successful candidate for governor at last general election,

or 150 electors, whichever was less, in at least 34 state

legislative districts; found not to be severe and thus

justified by “pointing to important regulatory interests”); Indep. Party of Fla. v. Sec’y, State of Fla., 967

F.3d 1277 (11th Cir. 2020) (finding minor political parties were not likely to succeed on merits of their claim

that Florida statutes requiring them to either submit

petition signed by one-percent of registered voters in

state or to affiliate with qualified national party in order to access ballot in presidential elections); Tripp v.

Scholz, 872 F.3d 857, 866 (7th Cir. 2017) (upholding

5% signature requirement for new parties, allowing

the state to address even speculative concerns); Libertarian Party of New Hampshire v. Gardner, 843 F.3d

20, 22 (1st Cir. 2016) (upholding 3% signature requirement to be collected over seven months for party to attain ballot access, applying a “rational basis” version

of Anderson).

On the other hand, several courts of appeals have

recognized that at a minimum, the Anderson-Burdick

analysis cannot consist of mere comparisons over percentages. See Cowen v. Georgia Sec’y of State, 960 F.3d

1339, 1342 (11th Cir. 2020) (“the determination that a

1 percent petition requirement by one state’s election

law in one context is constitutional, vel non, does not

guarantee the same determination of a similar law in

a different context”); Libertarian Party of Arkansas v.

Thurston, 962 F.3d 390, 404 (8th Cir. 2020) (a claim

challenging a signature requirement percentage below

5% could fail “if it stood alone,” but not if “the current

regime as a whole was unconstitutionally burdensome”); Gill v. Scholz, 962 F.3d 360, 365–66 (7th Cir.

2020) (criticizing court below for reflexively relying on

prior circuit case that upheld the percentage requirement because it failed to evaluate the different impact

based on different elections and districts); Green Party

of Ga. v. Georgia, 551 F. App’x 982, 984 (11th Cir.

2014) (“The district court based its dismissal on our

past decisions that upheld a 5% petition signature re-

quirement for other offices…. The district court’s approach employs the type of ‘litmus-paper test’ the Supreme Court rejected in Anderson.”);.

Indeed, the Sixth Circuit has developed a “muscular embrace” of Anderson-Burdick and has applied it

in the minor party ballot access context. Memphis A.

Philip Randolph Inst. v. Hargett, 2 F.4th 548, 561–62

(6th Cir. 2021) (Readler, J., concurring); see Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 589–93

(6th Cir. 2006) (finding a severe burden by comparing

Ohio political party qualification regime to the various

states on several grounds, analyzing political party

performance in Ohio, rejecting the state’s attempt to

address each restrictive aspect of the electoral regime

separately, as well as the state’s attempt to rely on

“generalized and hypothetical interests”); see also

Graveline, 992 F.3d at 539 (finding Michigan’s ballot

access regime for statewide independent and minor

party candidates a severe burden and unconstitutional due to “the 30,000-signature requirement, [its]

geographic-distribution requirement, and [an early]

filing deadline”). Certain other cases have also applied

stricter than normal analyses. See, e.g., Cortes, 877

F.3d at 484–85 (“alternatives to county-based requirements are readily available”).

Many commenters (and judges) have long observed

the need for the Court to resolve the confusion and

conflicting decisions among lower courts that apply

the Anderson-Burdick analysis. See, e.g., Daunt v.

Benson, 999 F.3d 299, 323 (6th Cir. 2021) (Readler, J.,

concurring) (“Anderson-Burdick’s hallmark is standardless standards.”); Daunt v. Benson, 956 F.3d 396,

424 (6th Cir. 2020) (Readler, J., concurring) (“Anderson-Burdick is a dangerous tool. In sensitive policyoriented cases, it affords far too much discretion to

judges in resolving the dispute before them.”); Republican Party of Ark. v. Faulkner County, Ark., 49 F. 3d

1289, 1296 (8th Cir. 1995) (“The Supreme Court has

not spoken with unmistakable clarity on the proper

standard of review for challenges to provisions of election codes”); Hatten v. Rains, 854 F.2d 687, 693 (5th

Cir. 1988) (“The Supreme Court has never stated the

level of scrutiny applicable to ballot access restrictions

with crystal clarity”); Emily Rong Zhang, Voting

Rights Lawyering in Crisis, 24 CUNY L. Rev. 123, 143

(2021) (“We must … recommit to more robust legal

protections for the right to vote. I join many others in

suggesting the Anderson/Burdick standard as a place

to start.”); Joshua A. Douglas, Undue Deference to

States in the 2020 Election Litigation, 30 Wm. & Mary

Bill Rts. J. 59, 60 (2021) (“The Court has not explicitly

overruled the Anderson-Burdick test, but its jurisprudence and the case law from the circuit courts of appeals in 2020 demonstrates that there is little federal

judicial protection for the constitutional right to

vote.”); Lydia Saltzbart, “A Dollar Ain’t Much If You’ve

Got It”: Freeing Modern-Day Poll Taxes from Anderson-Burdick, 29 J.L. & Pol’y 522, 552 (2021) (“lower

courts have struggled to apply the test, leading many

to disparage it as indeterminate”); Pamela S. Karlan,

Undue Burdens and Potential Opportunities in Voting

Rights and Abortion Law, 93 Ind. L.J. 139, 148 (2018)

(“There is simply no way to reconcile the Court’s extraordinary deference in Crawford … with its earlier

skepticism about voting restrictions.”); Joshua S.

Sellers & Justin Weinstein-Tull, Constructing the

Right to Vote, 96 N.Y.U. L. Rev. 1127, 1143 (2021)

(“the right to vote is unmoored from a settled baseline”); Richard L. Hasen, Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them, 19 Election

L.J. 263, 276 (2020) (describing the limitations of the

framework as currently construed); Daniel P. Tokaji,

Voting Is Association, 43 Fla. St. U. L. Rev. 763, 784

(2016) (“The major problem with the Anderson-Burdick standard … is that it’s unclear exactly what the

inquiry into the ‘character’ of the burden should entail.”); Armand Derfner & J. Gerald Hebert, Voting Is

Speech, 34 Yale L. & Pol’y Rev. 471, 485 (2016) (“Crawford illustrates how the current relaxed review of voting restrictions operates in practice.”); Derek T. Muller, Ballot Speech, 58 Ariz. L. Rev. 693, 722–23 (2016)

(“The ‘balancing’ test often functions as a simple binary formula…. But there are rare instances where

courts reach a contrary conclusion.”); Joshua A. Douglas, (Mis)trusting States to Run Elections, 92 Wash.

U.L. Rev. 553, 558 (2015) (“unlike prior practice, recent case law has given wide leeway to states to administer elections without meaningful judicial oversight”); Edward B. Foley, Voting Rules and Constitutional Law, 81 Geo. Wash. L. Rev. 1836, 1859 (2013)

(“Anderson-Burdick balancing is such an imprecise instrument that it is easy for the balance to come out one

way in the hands of one judge, yet come out in the exact opposite way in the hands of another.”); Bryan P.

Jensen, Crawford v. Marion County Election Board:

The Missed Opportunity to Remedy the Ambiguity and

Unpredictability of Burdick, 86 Denv. U. L. Rev. 535,

547 (2009) (describing how Anderson-Burdick in-

structs courts to first consider burden and then analyze state interests, but Justice Stevens mistakenly

reversed this order in Crawford); Richard L. Hasen,

The Democracy Canon, 62 Stan. L. Rev. 69, 100 (2009)

(“the relevant balancing tests … leave[ ] plaintiffs facing an uphill battle, but without clear constitutional

rules from the Supreme Court”).

As the foregoing commentary demonstrates, this

Court’s intervention is urgently needed to clarify the

proper application of the Anderson-Burdick analysis

and to ensure uniformity among the lower courts’ adjudication of cases arising in this critical area of constitutional and election law.

II.

The Court Should Grant Certiorari

to Resolve a Substantial Circuit

Split Regarding the Number of Signatures Per Day States May Demand of Minor Parties and Thereby

Clarify the Standard for Evaluating

the Burden.

In their analysis of the burden imposed by the

thresholds, the courts below dismissed as “unpersuasive” Petitioners’ demonstration that New York’s

1,071 signatures-per-day requirement for statewide

petitions is an extreme outlier among all state ballot

access requirements. App. 26–28, 67–69. They did so

solely by analogy to the Court’s pre-Anderson precedent and reasoning in Storer and Am. Party. of Texas.

Id.

Several circuits have taken a similar categorical

approach in dismissing signature collection timing

concerns, including the First, Second, Third, Seventh,

Ninth, and Eleventh Circuits. See Gardner, 843 F.3d

at 26 (1st Cir.) (finding a roughly 67 signatures-perday requirement for statewide candidacy and party

status constitutional by analogy to Jenness and

Storer); 8 Barr, 626 F.3d at 110 (1st Cir.) (finding 167

signatures-per-day requirement for minor party presidential candidate constitutional by analogy to Am.

Party); LaRouche v. Kezer, 990 F.2d 36, 40 (2d Cir.

1993) (upholding 466 signatures-per-day requirement

for candidate petitions by analogy to Storer and Am.

Party); Libertarian Party of Connecticut v. Lamont,

977 F.3d 173, 178–79 (2d Cir. 2020) (upholding signature requirements from 74 to 7,500 over seven months

by analogy to Storer, Jenness, and Am. Party); Schulz

v. Williams, 44 F.3d 48, 57 (2d Cir. 1994) (upholding

358 signatures-per-day requirement for statewide

candidacy and therefore party status by analogy to

Storer and Am. Party); Rogers v. Corbett, 468 F.3d 188,

191, 195 (3d Cir. 2006) (upholding 450 signatures-perday requirement for statewide candidacy and party

status by analogy to Storer); Valenti v. Mitchell, 962

F.2d 288, 299–300 (3d Cir. 1992) (upholding 112 signatures-per-day requirement for congressional candidates by analogy to Storer); Tripp, 872 F.3d at 865 (7th

Cir.) (upholding 27 signatures-per-day requirement

for state representative candidates by analogy to Am.

Party); Stone v. Bd. of Election Comm’rs for City of

Chicago, 750 F.3d 678, 684 (7th Cir. 2014) (upholding

8 A number of cases with longer signature windows also rely on a

comparison to the 180-day window in Jenness, which, in conjunction with other requirements, was upheld. 403 U.S. at 433–34.

139 signatures-per-day requirement for mayoral candidates by analogy to Storer and Am. Party); Nader v.

Keith, 385 F.3d 729, 733–36 (7th Cir. 2004) (upholding

334 signatures-per-day requirement for independent

presidential candidates by analogy to Storer and Am.

Party); Andress v. Reed, 880 F.2d 239, 242 (9th

Cir.1989) (upholding 223 signatures-per-day requirement for statewide office by analogy to Storer); Stein

v. Alabama Sec’y of State, 774 F.3d 689, 699 & n.12

(11th Cir. 2014) (upholding 232 signatures-per-day requirement for party petition by analogy to Storer); Libertarian Party of Fla. v. State of Fla., 710 F.2d 790,

794 (11th Cir. 1983) (finding that 188-day period for

collection of 144,492 signatures “compares favorably”

to those in Jenness, Storer, and Am. Party).

On the other hand, the Sixth and Eighth Circuits

have instead applied a full Anderson-Burdick analysis. See Graveline, 992 F.3d at 543 (6th Cir.) (finding

unconstitutional 167 signatures-per-day requirement

for independent candidates in light of history, specific

burdens, and a lack of alternative means to qualify);

Libertarian Party of Arkansas v. Thurston, 962 F.3d

390, 403–04 (8th Cir. 2020) (affirming preliminary injunction against 300 signatures-per-day requirement

for a new political party based on the unconstitutional

burden of the election regime as a whole, rejecting a

simple analogy to Jenness and other cases). A number

of district courts have also done so, even in the majority of circuits that have conducted a wholly precedential analysis. See, e.g., Gottlieb v. Lamont, 2022 WL

375525, at *11–12 (D. Conn. Feb. 8, 2022) (conducting

detailed analysis of “0.86 to 36 signatures per day of

petitioning for Assembly District candidates; 7 to 126

per day for State Senate candidates; and 35 to 90 per

day for U.S. congressional candidates”, taking into

consideration Connecticut’s overall election scheme

and the burden on plaintiffs to collect signatures); Gill

v. Scholz, 2016 WL 4487836, at *5 (C.D. Ill. Aug. 25,

2016) (granting preliminary injunction against 120

signatures-per-day requirement for independent

House candidate, distinguishing other precedent with

historical experience); Jones v. McGuffage, 921 F.

Supp. 2d 888 (N.D. Ill. 2013) (finding 253 signaturesper-day requirement for minor party candidates in

house of representatives special election unconstitutional in light of practical considerations); Breck v.

Stapleton, 259 F. Supp. 3d 1126 (D. Mont. 2017) (finding 311 signatures-per-day requirement for candidates in house of representatives special election unconstitutional in light of timing, history, and practical

capabilities); Hall v. Merrill, 212 F. Supp. 3d 1148

(M.D. Ala. 2016) (finding unconstitutional 107 or 57

signatures-per-day requirement for house of representatives special election in light of practical considerations, rejecting comparison to Jenness as a prohibited litmus-paper test), vacated as moot, 902 F.3d 1294

(11th Cir. 2018).

This Court should grant certiorari to resolve this

split among the Circuits by clarifying that proper application of the Anderson-Burdick analysis requires

that lower courts address the time limitations that

states impose on signature collection. In doing so, the

Court can clarify its warning that in assessing the burden, courts should not apply a “litmus-paper test.” 460

U.S. at 789.

The Court’s often-cited cases themselves do not

support such a categorical rejection, especially here.

In Storer, this Court upheld a 13,542 signatures-perday petition requirement for independent candidates

for president in California, opining that it would not

be “impractical” for 1,000 canvassers to gather 14 signatures-per-day. 415 U.S. at 740. Yet that case is not

analogous. The Court concerned itself with the requirements applicable to “one who desires to be a candidate for President.” Id. at 740. By contrast, the

Court recognized that “the political party and the independent candidate approaches to political activity

are entirely different and neither is a satisfactory substitute for the other. A new party organization contemplates a statewide, ongoing organization with distinctive political character. Its goal is typically to gain

control of the machinery of state government by electing its candidates to public office.” Id. at 745–46. It is

therefore essential for state election regimes to allow

new political parties to emerge and develop over multiple cycles. See Williams, 393 U.S. at 32 (“New parties

struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position.”). Restrictions on political parties thus cannot be compared to those on independent presidential candidates.

On the other hand, the companion case Am. Party

of Texas v. White, 415 U.S. 767, 776–78 (1974), directly

concerned a 1% of the last gubernatorial vote party petition requirement for new political parties, requiring

that such signatures be collected over 55 days. There,

the Court was “unimpressed” that this was “too oner-

ous” for a “political organization.” Id. at 786–87. However, Am. Party concerned a requirement of only 400

signatures-per-day. Id. New York’s increased threshold is almost three times as much. An analogy to it

proves nothing.

III.

The Court Should Grant Certiorari

to Clarify That Fusion Parties’ Existence Cannot Justify a State’s Exclusion of All Other Minor Parties.

The courts below found that the thresholds impose

no severe burden in large part because two fusion parties survived and thus minor parties are not “virtually

excluded.” App. 22, 61, 92–93. The implication is that

the Constitution is indifferent even if minor parties

have to curry favor with and run major party candidates—whose loyalties necessarily belong to the major

party. Yet this conclusion flies in the face of this

Court’s precedent and the fundamentals of minor

party ballot access and its role in our democracy. In

Williams, the Court stated:

All political ideas cannot and should not be

channeled into the programs of our two major

parties. History has amply proved the virtue of

political activity by minority, dissident groups,

which innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. The absence of

such voices would be a symptom of grave illness

in our society.

393 U.S. at 39 (quoting Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 250–51 (1957) (plurality op.)). And

in Anderson, the Court elaborated:

The right to vote is heavily burdened if that vote

may be cast only for major-party candidates at

a time when other parties or other candidates

are clamoring for a place on the ballot. The exclusion of candidates also burdens voters’ freedom of association, because an election campaign is an effective platform for the expression

of views on the issues of the day, and a candidate serves as a rallying-point for like-minded

citizens.

460 U.S. at 787–88 (cleaned up) (emphasis added).

These principles make clear that minor parties are important specifically because they do not generally run

major party candidates.

Moreover, many of this Court’s ballot accesses

cases reiterate that the Constitution is concerned with

voters’ rights to associate in parties that run their preferred candidates and in voters’ rights to vote for those

candidates. See, e.g., California Democratic Party v.

Jones, 530 U.S. 567, 574 (2000) (“Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates

who espouse their political views. The formation of national political parties was almost concurrent with the

formation of the Republic itself.”) (emphasis added);

Clements, 457 U.S. at 965 (“the State may not act to

maintain the ‘status quo’ by making it virtually impossible for any but the two major parties to achieve ballot positions for their candidates” (emphasis added)).

Indeed, this Court conversely found the ability to

run major-party candidates by way of fusion to not be

constitutionally significant because it primarily involves a political party’s interest in communicating its

ideological position to the candidate, not to voters. See

Timmons, 520 U.S. at 362–63. The obvious corollary is

that a system that leaves open fusion as the only route

for minor parties to exist vindicates no significant constitutional rights and imposes a severe burden.

****************

As set forth above, this Court’s review is necessary to resolve significant issues that have split and

confused federal courts and to correct significant errors committed by the courts below in upholding New

York’s increased thresholds for minor party ballot access. The petition for certiorari should be granted.

Respectfully submitted,

Oliver Barrett Hall

Counsel of Record

Center for Competitive Democracy

P.O. Box 21090

Washington, DC 20009

Telephone: (202) 248-9294

oliverhall@competitivedemocracy.org

Counsel for Petitioners

March 13, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.