The New York Libertarian (LPNY) and Green Parties (GPNY) have petitioned the US Supreme Court to hear their case challenging state election rules designed by the major parties to knock third parties off the ballot. The scheme was so successful that every third party that doesn't nominate major party candidates lost their ballot access status statewide.

Toward the end of 2019, Governor Andrew Cuomo and state officials expanded the authority of a public campaign financing commission to rewrite election laws pertaining to smaller political parties. The first rule change: Raise ballot access requirements from needing 50,000 votes every 4 years to 130,000 votes every 2 years. 

Four parties lost their ballot access in 2020: The Libertarian, Green, Independence, and the SAM (Serve America Movement) Party. The Working Families Party and the Conservative Party are the only two recognized third parties that still have ballot access because of fusion voting, meaning a candidate can run for the nomination of a major party and a minor party.

In other words, it is not uncommon to see a Republican also run under the Conservative Party line, or a Democrat run under the Working Families Party line.

The Libertarian and Green Parties of New York noted in a press release that 2020 Libertarian presidential candidate Jo Jorgenson received over 60,000 votes, which under the old rules would have been enough to protect the party’s ballot access. It wasn’t near enough, however, under the new rules.

The legal fight to overturn the new ballot access rules hasn’t looked good for third parties in the state.

“The lower courts have denied our case and our appeals while ignoring and disregarding several of our arguments,” stated LPNY Chair Andrew Kolstee. 

“This includes the fact that the signature-per-day count is the highest in the nation, making New York the most difficult state for a third party to get on the ballot. The court also failed to address why using taxpayer money to fund campaigns required killing off third parties is a legitimate state interest.”

He added that the court essentially told the LPNY and GPNY that they need to nominate the Republican or Democrat on the ballot in order to get ballot access, which is something that sounds all too familiar to independent voters who have been told by courts in states like New Mexico and New Jersey to pick a party or don’t vote in taxpayer-funded primaries.

In California, the Independent Voter Project is challenging a semi-closed presidential primary system that tells nearly 5 million No Party Preference voters that they are better off joining a political party -- even though they registered NPP for a reason -- because of burdensome rules that create widespread confusion and deny them the same ballot access protections extended to party members.

While ignoring the questions pertaining to the rights of voters deemed qualified by the state and some state-sanctioned parties to vote, the appellate court in California made the case about the associational rights of political parties – something that was never disputed (and in fact was embraced) by the plaintiffs.

The court was able to sidestep the real issue while keeping its opinion unpublished so it could not be cited in a future case. 

The questions before the courts in New York and California are different. Plaintiffs in California argue from the fundamental rights of the individual voter while the LPNY and GPNY argue on behalf of a collection of people. The grievance, however, is similar – electoral rules are being used in both states to suppress the vote of people outside the major parties.

And, the rules in place are working as intended. Millions of voters in California are left confused about their options during presidential primaries, and third parties that do not endorse major party candidates in New York have lost ballot access, and will have an extremely difficult time getting it back.

From coast-to-coast, millions of voters are negatively impacted by electoral rules designed to benefit and protect the Republican and Democratic Parties. The major political parties feel so entitled to elections and your vote that they are willing to suppress the rights of citizens to get their way.

The reason fighting these partisan rules is so challenging -- as seen in California and New York -- is because Republicans and Democrats have manufactured a two-party system that encompasses all facets of political life in the US, from elections to policy making, media punditry, polling, and yes — the court system.