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Jan. 5, 2024 - RFK Jr. The Defender
22:50
Ballot Access Obstruction with Richard Winger

Problems with the ballot access process are discussed by Richard Winger and Robert F. Kennedy Jr.

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Hey, everybody.
Today, I have a special guest, and the subject of today is ballot access, because I've been on the road the last couple of months, and everybody knows that since I declared my independent candidacy for President of the United States, that The big question is, can we get on the ballot?
We have retained the campaign, one of the great ballot access experts in the world, and he's so interesting that I wanted you, the audience, to hear from him directly.
His name is Richard Lee Winger.
He was born in Antioch, California.
He's an American political activist and analyst.
He's the publisher and editor emeritus of Ballot Access News, if you can believe that there is actually a publication with a large enough audience to justify it.
He sits on the editorial board of the Election Law Journal.
Dr.
Richard Winger is widely regarded as an expert, as the world's expert on ballot access and election law, as well as the topic of third-party politics in the United States.
Though not an attorney, Winger periodically testifies in court cases and legislative hearings and as a source for both the media and political organizers.
He's been published in the Wall Street Journal, the Journal of Election Law, and many, many other places.
He has appeared on ABC, NBC, CNN, NPR. And his newsletter, Ballot Access News, comes out monthly.
Welcome to the show.
I'm very honored to be on, and it's a great pleasure to talk to you.
And by the way, congratulations on winning the third Ballot Access case for 2024, your Utah case.
It's not over, but it's basically won.
I think we're fighting basically the same law now in Idaho.
Well, I hear that Idaho Secretary of State is saying they don't really know what their deadline is.
Because they used to have a separate section for independent presidential candidates giving a very good deadline in late August.
And then they repealed it, but they never replaced it with anything else.
So your attorney tells me that they're probably going to make a good ruling and you probably won't have to sue.
We'll see.
Well, that's good.
So tell us about, because there's a balance here with ballot access, that there's a legitimate reason to make it difficult, which is to keep sort of, I guess, frivolous candidates from flooding the ballot.
But it actually has become a mechanism as a weapon to keep everybody off the ballot, except for the major, the corporate parties, the corporate uniparty, Republican Party and Democratic Party.
Can you talk a little bit about how it's been weaponized?
Well, this is an old problem.
In the 18th and 19th centuries, it was not a problem at all, because there were no government printed ballots.
The government had no ability at all to prevent any person from voting for anyone they wanted, because people could make up their own ballots.
That was legal.
Although most people didn't bother.
They would pick up a ballot from their favorite party and throw that in the box.
But they were free to X off names they didn't like and write in others.
But as soon as the state started writing laws on who could get on government ballots, we got into trouble.
The absolute worst state was Nevada in 1893.
They said a petition to get a new party in the ballot had to be signed by 10% of the last vote cast.
And then North Carolina in 1901, when they passed a ballot access law for their government printed ballots, they defined a party as something that had got 50,000 votes for governor in the 1900 election.
Period.
There was no other way to be a qualified party.
And since 1900 was in the past, you couldn't alter it.
So the Democratic and Republican parties had each pulled over 50,000 votes.
They were on the ballot forever, permanently, and nobody else could ever get on.
And there's been other horror stories.
Was that then litigated?
No, but here's how North Carolina handled it.
They said, don't worry, socialists, prohibitionists, it's still legal to have private ballots.
So even though you're not on the government printed ballot, your voters are free to put in their own private ballot.
And that was the situation for 30 years.
What are the legal limitations right now for people or states that want to make it almost impossible for people like me to get on the ballot?
Unfortunately, because of a horrible 1971 ruling by the U.S. Supreme Court from Georgia called Jeunesse v.
Fortin, it's very tough to win these cases.
The Socialist Workers' Party sued Georgia in 1970 in federal court because the law at the time said, unless you got 20% of the vote in the last election, you couldn't get on the ballot unless you submitted a petition of 5% of the registered voters.
Now that is really, really hard.
And the Socialist Workers' Party submitted no evidence that that was hard.
All they argued was it's unconstitutional to require us to get signatures because Democrats and Republicans don't need any signatures to get on the primary ballot.
That's all they said.
And they lost.
Unanimously, even the liberals went along with it.
If they had presented evidence, we would have had a much better outcome.
But that case has plagued us ever since.
Talk about some of the impediments today.
What are the worst dates?
Okay, they've made it far easier to get on for president than for other office Presidential ballot access is a nightmare, but it's not a complete nightmare.
In fact, I consider only six states to have really, really tough requirements for president, but the little secret is state legislators don't really care who gets on for president that much, but they care a lot about who gets in the ballot to run against them.
So the laws to get on the ballot for legislature or Congress are far, far tougher.
And the absolute worst ballot access law is that same old Georgia law for U.S. House A petition to 5% of the registered voters is so hard.
No third party has ever done it, even though it's existed for 80 years, and only one independent has done it, and that was way back in 1964.
That's the worst ballot access law in the country.
If the founding fathers thought someday there'd be a state that said you had to be a candidate of one of the two major parties to run for U.S. House, which was supposed to be the most democratic branch of the government, they would have been shocked.
But that's what we've got.
We won a case against it in U.S. District Court a few years ago, but then it went to the 11th Circuit.
And on that panel was a former Attorney General of Alabama and a former Solicitor General of Georgia, two judges who have never ruled against their own states.
In an election law case, and they upheld the law, and they said the state has a compelling interest in keeping everybody off the ballot who isn't strong enough to win.
That was shocking.
There's no precedent for that.
They didn't cite any.
They just said it, and the Supreme Court wouldn't hear it.
Well, back on the subject of the presidential race, what are the states that are going to be most difficult for me to get on?
Texas.
Texas is a nightmare.
It's not only a huge number of signatures, you have a very short time to collect the signatures, and people can't sign if they voted in the primaries in March.
And it's got an early deadline.
If they voted in the primaries, they can't sign their name to a petition.
Right.
So you have to get all new voters.
Do they have to be registered voters?
Yeah, they have to be registered voters.
Now, fortunately, for some reason, Texas has a long tradition of very poor turnout in primaries.
I don't really know why that is.
But typically, even in presidential years, only about a fourth of the registered voters vote in Texas primaries.
And how many signatures do you have to have?
Well, that's another crazy thing.
If you're starting a new party, you need 80,000.
But if you're trying to be an independent presidential candidate, you need about 115,000.
And that's idiotic all by itself.
Because if the purpose of the ballot access laws is to keep the ballot from being too crowded, a new party can put candidates in the ballot for every single partisan office.
So it has a far bigger impact on ballot space than one independent candidate.
So why in the world should they require more signatures for an independent than for a new party?
It's just a lot of these laws are just ridiculous.
And what are the other states that make it hard, that we're going to have the hardest time?
California, New York, Florida, although Florida may have loopholes, Indiana and Arizona, I think, are the hardest six.
They also have windows, right?
Because many of the states, you can start signature gathering now and you have all the way to August.
You can start as early as you want in Arizona and Indiana.
But California, Texas, yeah, you can start as early as you want in Florida also.
But California, Texas, and New York have windows.
And New York's window is terribly strict, six weeks.
Furthermore, they have an early deadline also.
It's in May.
There's a lawsuit pending against that deadline.
So we may get some judicial relief.
And talk about the other impediments that the other parties are going to put, that we're going to face when we submit our ballots.
I know there's a perception out there that in a lot of states people will sue and claim there aren't enough valid signatures.
But most states don't permit that.
Most states, the election officials check the signatures.
They generally do a good job.
And once they make a decision, Nobody can sue to overturn it.
It's only a few states that are in the habit of having ordinary people then go to court and say, well, I don't think this petition's valid.
New York, especially, and Illinois especially, to a certain extent Pennsylvania and Ohio, but generally that doesn't happen.
You do have a little problem in some states that make it illegal for people to sign for two different candidates for the same office.
So if you go out and get a bunch of signatures and unbeknownst to you, a bunch of your signers had already signed for some other independent presidential candidate, that's a problem.
But that's a minority of states also.
Then there's all this confusion about when you have to choose a vice presidential nominee.
Now fortunately, in 1980, Congressman John B. Anderson set a lot of very good precedents that you don't need a VP right away.
He was a congressional leader of the Republican Party.
He ran for president in the primaries in 1980.
Then on April 2030, he changed his mind.
He said, I'm getting out of the Republican race.
I know Reagan's going to win it.
I'm going to be an independent.
But he didn't pick as VP until August 27th.
That was former Wisconsin governor Patrick Lucey.
So practically every state said, you can use a stand-in on the petition for vice president.
And We'll let that person resign once you pick the real candidate.
So Anderson's VP stand-in was Milton Eisenhower.
He was 90 years old at the time.
He was Dwight Eisenhower's older brother.
And everybody recognizes he wasn't going to be the real VP. But it worked out okay.
And so a lot of these states have forgotten what they did.
And they are backtracking.
And you're probably going to have to fight some court battles over vice presidential substitution if you use a stand-in.
So there's some states where you cannot use a stand-in?
Unfortunately, Massachusetts, they went backwards.
They used to allow it.
And then in 2008, the Libertarian Party used stand-ins.
And the state said, we're not going to accept that, even though they had promised that very year they would.
So then the Libertarian Party sued.
They won in U.S. District Court.
But after the election, the First Circuit reversed it and said, nope, that's a fraud in the voters showing somebody in the petition who's not going to really be running.
We don't like it.
So in the First Circuit now, they wreck substitution.
And of course, the First Circuit includes four New England states.
And what kind of dirty tricks have you seen during your years?
The Green Party in Montana, twice in 2018 and 2020, they turned in signatures.
Both times, the Secretary of State said they had enough ballot.
Then the Democratic Party, which didn't want the Green Party in the ballot, Got hold of the petition and made a massive effort to ring the doorbells of all the people that had signed it and try to persuade them to sign a piece of paper taking their name off the petition.
And the Montana Supreme Court allowed that even though these people had reversed their signatures immediately.
After the Green Party primary.
Here the state held the Green Party primary in June, and then after their primary, the Democrats said, well, we've got enough people who took their name off the petition, which had been circulated six months ago, and the courts took them off.
That was really bad.
And is that a federal case, or is that...
No, that was in state court.
However, we got even.
After that happened, the Ninth Circuit struck down the Montana ballot access law because it had an unequal distribution requirement.
I don't know if that's too arcane to try to explain or not.
But in the end, we got even.
Explain that.
Okay.
The law said the petition needed a certain number of signatures in one-third of the legislative districts.
But the trouble was the law was very irrational.
And in some legislative districts, you needed as few as 55 signatures.
And in others, you needed as many as 150.
And yet all legislative districts are basically equal in population.
So it was a technical decision.
But they said this violates one man, one vote, because this is giving the people of some districts more power than the power of people living in other legislative districts.
Then the Secretary of State put the Green Party in the ballot for 2022 on the basis that the law was unconstitutional.
Then they're on for 2024 also.
So they were able to overcome the law Too late, you see.
They missed out on being in the ballot both 2018 and 2020.
They couldn't get their benefit of this victory until after those two elections were over.
Well, do you anticipate that when I file my petition in Montana, that the Democrats and Republicans are going to go door to door and check all my signatures and try that game again?
Well, here's the funny thing.
The Democrats couldn't get many people to sign.
They only needed a small number because of this distribution requirement.
If they knocked you off in just one district, you were gone.
But the distribution requirement is gone now.
So if you turn in 8,000 signatures and you need 5,000, The Democrats could not possibly get 3000 people to take their signatures off.
It was only a problem when the Democrats only had to get about 25 people to retract.
Tell us some of the other dirty tricks that you've seen.
In 2022, the Democrats really didn't want the Green Party in the ballot in North Carolina.
So even though the county boards of election had said the Greens have enough valid signatures, they went to the State Board of Elections, which had a three to two Democratic majority, and they simply wouldn't approve the petition.
They had no grounds.
They just said, well, we think there was fraud.
There was no evidence.
So anyway, the Greens went to federal court and won the case.
How about when you're on the ground actually getting signatures?
Have you heard of, you know, kind of dirty tricks at that point?
Well, there's something called blockers.
If people really, really hate you, they can recruit a bunch of people to follow your petitioners around.
And once the petitioner starts talking to a voter in the street, they say, don't sign this petition!
And they harass the petitioner and the person he or she is talking to, and it makes it very tough on the petitioners.
Nobody wants to do that all day.
There are a lot of things that they used to be able to do that they can't do anymore.
The majority of states used to say your circulators had to be registered voters in the state, but those laws have almost totally been struck down now.
We have Ruth Ginsburg to thank for that.
She wrote a decision from Colorado striking down a Colorado law that said you had to be a registered voter to be a circulator, and that was a big help.
She didn't strike down the law that you had to live in the state, but the lower courts then took the hint And virtually every state, you can hire circulators or have volunteer circulators from another state and they can work anywhere they want.
What did Ross Perot do to get on the ballot?
In 1992, he was so popular, he had millions of people that wanted to volunteer for him.
But he still spent a fortune because he felt the need to open storefront offices all over the country.
And that's expensive.
You have to pay the rent.
The store was so that the volunteers could come in without having to travel too far and get trained and pick up blank petition forms and then they'd have a place to turn them in.
Now, because of modern technology, that's not really needed anymore.
You can have people electronically obtain blanks and you can have trainings on Zoom.
So although he spent a fortune, somebody else like you with lots and lots of volunteers can manage that with less money.
And what happens if the super PAC is out there getting petitions and actually probably competing against the campaign?
What happens in that case?
Well, we have a couple of good precedents.
In 2004, The Michigan Republican Party circulated a petition to get Ralph Nader in the ballot as an independent presidential candidate.
They did it totally without talking to him.
They just did it.
And they got enough signatures.
They wanted to punish the Democrats.
Yeah, they thought that would hurt the Democrats.
It does not necessarily follow that having left candidates hurts Democrats, but everybody thinks it does.
There's evidence to contradict that, but I won't get into that.
But anyway, then the Democrats sued and said, you can't do that.
But the Michigan State Court of Appeals ruled, well, there's no law against it if they want to go out and circulate a petition.
For somebody without talking to them and the signatures are valid, fine.
And then also the same thing happened in 1968 in New York when a bunch of people wanted Eugene McCarthy to be an independent presidential candidate and he didn't want to.
So in New York they just circulated the petition anyway and The lower courts put him on.
But then the highest state court said, there's a common law right not to be forced to be a candidate against your will.
So they took him off because he wanted off.
But nobody said there was anything wrong with independently circulating the petition for him.
And there's no FEC rule that would, I suppose, if a campaign were coordinating with the PAC, you couldn't do that.
I'm not an expert on campaign finance law, but I don't think there is.
I think it would have come up already.
Were you involved with Ross Perot's campaign or with Ralph Nader or any of the other ones?
In a peripheral sense, I am so in favor of a free election.
I give advice to anybody that asks me.
It doesn't matter if I agree with them or not.
I just feel good about helping people out.
And since I know the precedents, I can be helpful sometimes.
Tell us about some of the cases you've been involved in.
Well, let's see.
I think the happiest decision ever Was the Libertarian Party case against Ohio that was filed in 2004.
At the time, the Ohio Party petition was due in December of the year before the election.
And it was a lot of signatures, about 40,000.
And...
We lost in U.S. District Court.
We said the deadline was too early.
And then I flew all the way to Cincinnati just to be in the audience in the Sixth Circuit, because back then you couldn't watch these things on the computer.
And there were three judges, like there always is in the U.S. Court of Appeals.
Two of them said nothing.
The third one was extremely hostile.
So it was like a...
A duet between our lawyer and this hostile judge.
We waited a year for that decision to come out.
Every day I was checking the court website.
Finally there, it popped up, said reversed.
I was so surprised and happy.
I screamed out loud.
So that's probably my favorite one.
Richard Winger, thank you very, very much for your commitment to our democracy, for your lifelong efforts to keep American democracy open to as many voices of dissent, of difference as possible.
Well, thank you for what you're doing, because you're You're going to improve the law with your lawsuits.
So thank you.
I hope I do more than that.
Well, I know you have other goals, but you will do that.
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