The following arguments, and questions from Federal Appeals Court Judges, were taken from an appeal heard on December 15, 2020 in the US Court of Appeals, Second Circuit.
20 3047—SAM Party of NY v Kosinski-Notes on Arguments and questions from Judges
Attorney Eric Stone, for the SAM Party of NY. “In 2018 supporters of what would become the SAM Party did two things that very few minor parties had ever done in NY. First, they petitioned to put on the ballot for Governor a candidate not running as the democrat or republican, and second that candidate got more than 50,000 votes. This Demonstrated that SAM was not a frivolous party. New York has now raised that Gubernatorial threshold to 2%, or 130,000 votes. While we can all agree that this past Presidential election was unusual, the vote was 174,000 in New York, essentially tripling the requirement for Gubernatorial races.
Question-Judge Robert Sack-Did the Working Families Party meet that threshold?
Answer-Stone—They did, but they did so by nominating the democratic candidate for President, and the Conservative Party did so by nominating the republican. Any of the other minor parties failed miserably.
Question-Judge Michael Park—Is your argument the severity of the burden, or the difficulty achieving that, or is it the messaging, that running in a presidential election would be inconsistent with SAM’s branding?
Answer-Stone—Its both. The reason that a presidential election requirement is unconstitutional as applied to a one state only political party that doesn’t speak to the issues of the presidency as a matter of its core messaging is a legal issue.
We are going to have to meet a Gubernatorial election requirement in two years that is nosebleed high and likely fatal to everybody. And it is against that background that the court considers the presidential election requirement which nobody has ever explained what that brings to the table at all.
Although it is certainly true that the state may impose requirements to ensure that parties are not frivolous, it has one, it has the Gubernatorial election requirement which it has essentially tripled.
What the presidential election requirement does is compel every NY state party to speak to the presidency. That is compelled speech, and it is unconstitutional as applied.
Question Judge Sack—is it your position that it would be acceptable every four years, (in the gubernatorial election)?
Stone—yes that is our position
Judge Sack–You can stand the nosebleed then?
Stone–We are going to have to. This court held in the Person case that it is constitutional to require a party to compete for the state’s highest office. We intend to do that, but it is unconstitutional to run a candidate in NY only for President.
Question-Judge Steven Menashi-Why does NY state have to accommodate a party that doesn’t want to run for President? What if a party said we only focus on local races and we don’t want to run a Gubernatorial candidate?
Stone—The state would not have to accommodate this. The difference is New Yorkers elect the Governor, but if the presidential candidate ran only in New York, the would not capture the presidency.
Question Judge Menashi--Do the petitioning requirements severely burden the party?
Stone—The court needs to ask whether it disproportionally burdens small and minor parties to have to run a candidate for President. Being a party is not about ballot access only. It is about raising money and supporting the people who will go door to door. And the notion that we are no worse off if instead of having automatic ballot access and the unlimited ability to raise money, we instead have to without that ability to raise money, have to go door to door for dozens or hundreds of candidates across the state, has never happened. There is no evidence of any party (without ballot access) taking to raise money and putting candidates on the ballot.
Question –Judge Menashi- Are the burdens you are facing fund raising and the lack of automatic ballot access?
Stone- Yes and being told that we can resolve that problem by running in a race that we want no part of or being compelled to nominate the democrat or the republican, which seems to be the state’s response, that you can solve this by nominating Biden or Trump.
Question Judge Sack- That is because of a particular ideology?
Stone—The state’s notion that minor parties can survive by cross nominating major party candidate is unprincipled and is an argument of compelled speech by the government. The state can’t have it both ways, they can’t argue that if we lose party status we can still run all the same candidates and then complain about the number of candidates on the ballot. If in fact a minor party has support from the electorate, it’s the state’s job to print all of the candidates. You can’t run minor parties out of the state to have fewer minor parties
Eliot Halek for NYS Board of Elections: New York updated its election laws to require that a party demonstrate support every two years and obtain 2% or 130,000 votes. The theory that these requirements are too onerous is false. It is far easier in New York State than in other states, which have far more onerous ballot access laws. The courts have ruled that states can put reasonable restrictions on minor parties.
Question Judge Menashi—How does NY compare to other states?
Answer -Halek–NY is one of 19 states to require qualifying every 2 years and demonstrate a minimum vote. Many states require parties to obtain more than 2%, some require 3%, 5%.
Question Judge Sack: Do they (other states) use the presidential election as a yardstick?
Halek-Six states require presidential election participation. The reality is that New York is hardly an outlier, and the court have found that this is not a severe burden. SAM was the only minor party in New York State that did not run a presidential candidate.
Question Judge Menashi: If you have a state based political party, why isn’t a better measure their performance in a state based race?
Question Judge Sack: The Gubernatorial may be better but Presidential is good enough?
Halek: The presidential requirement was included to determine support bi-annually. The presidential election has garnered the most interest and is the best measure of a parties true support. There is no other statewide race every two years, the presidential election is the only one available.
Stone rebuttal: The question for this court is whether failing to get 2% of the presidential vote would indicate a lack of support. The question is if a minor party that exists in only one state, doesn’t want to run the democrat or republican candidate, does the fact that 2% of the voters in NY won’t support their one state only presidential dead end candidate mean that there party lacks support in the electorate. The answer to that is clearly no.