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NY third party news: Procedural victory concerning vote-counting

from Ballot Access News
Procedural Victory in New York Vote-Counting Case
May 12th, 2011

On May 10, U.S. District Court Judge Jed Rakoff issued an 18-page opinion in Conservative Party v Walsh, southern district, 10 cv-6923. This is the lawsuit in which the Conservative Party of New York, the Working Families Party of New York, and the Taxpayers Party, sued to overturn a discriminatory New York state election policy on counting votes.

New York permits two parties to jointly nominate the same candidate, and generally when a candidate is nominated by two parties, he or she is listed twice on the ballot, so that a voter can vote for that candidate under either party label. Some misinformed voters invariably vote for such a candidate under both labels. New York credits this vote to the party that has the top spot on the ballot, which means, almost always, that the Democratic Party or the Republican Party gets that vote, and the smaller party does not. Judge Rakoff ruled against the state’s motion to dismiss the case.

A trial will now be held to determine if there is solution (to the problem of voters who cast a double-vote) that does not discriminate against smaller parties. The opinion has some excellent language in support of the idea that the U.S. Constitution does not permit states to discriminate against minor parties. The Brennan Center for Justice is representing the minor parties in this case. The Brennan Center did a great deal of litigation for minor parties and independent candidates in the years 2000 through 2003, but then seemed to lose interest in minor party and independent candidate election law problems. The Brennan Center has even injured minor parties in the litigation in Connecticut over discriminatory public funding, by defending the Connecticut law in court (the case is pending before the U.S Supreme Court). However, the Brennan Center did take this New York case last year, and is doing an excellent job with it.

Note from KW: Changing any rules or procedures always has multiple effects. One, problematic effect of making the counting rules fair in this way, is that it would tend to support/encourage third parties to feel comfortable cross-endorsing major party candidates (ie: fusion), rather than running their own candidate. Though, I agree with Richard Winger, that overall, the ruling to count more fairly, would be a ruling to affirm and acknowledge the rights of third parties.

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