Justice For Third Parties in Maine
U.S. District Court Strikes Down Maine's Restrictive Ballot Access Rules
The political culture in Maine is opening up. Maine is a national leader in rank choice voting but RCV does not apply to state and local elections due to the wording in the Constitution. Before RCV can be instituted in state and local elections, the language in the Maine Constitution must be changed from “majority” to “plurality”. However, Constitutional amendments must be initiated in the political body that is most affected by changes in our electoral process:
Maine Constitution, Article IV
Section 4. Amendments to Constitution. The Legislature, whenever 2/3 of both Houses shall deem it necessary, may propose amendments to this Constitution; and when any amendments shall be so agreed upon, a resolution shall be passed and sent to the selectmen of the several towns,………..Section 15. Constitutional conventions. The Legislature shall, by a 2/3 concurrent vote of both branches, have the power to call constitutional conventions, for the purpose of amending this Constitution.
Changes in the Maine electoral process regarding ballot access for third parties are moving against the grain of new state laws enacted across the nation that are restricting voter access. Maine just received a ballot access win that can have a considerable effect on our political environment. Given the trickle-down nature of national politics, this seems like the right change at the right time. America is ripe for giving other parties a voice.
A 41-page decision, the U.S. District Court Stuck Down two Maine ballot access laws relating to minor parties.
On November 11, 2019, multiple members of the Libertarian Party filed a complaint seeking declaratory and injunctive relief on two counts: the first alleging violation of their right of association under the First and Fourteenth Amendments to the United States Constitution and the second alleging violation of their right to equal protection under the law under the Fourteenth Amendment to the United States Constitution. See Complaint (ECF No. 1)
The complaint is directed at election laws that require all parties to gather signatures from registered voters rather than any voter, and at other laws that purge all enrolled voters from a party’s base if they fail to meet 5000 registered voters by a specified date. The party is then sent back to GO to start all over again.
Maine, like most other states, once granted ballot access based on petition signatures rather than enrollments, but since 2013 has conditioned ballot access on the number of voters who are enrolled as party members. See Act to Amend the Election Laws, L.D. 504 (126th Legis. 2013).
L.D. 504 was Presented by Senator TUTTLE of York. Cosponsored by Representative LUCHINI of Ellsworth and Senator: CAIN of Penobscot, Representatives: DILL of Old Town, FARNSWORTH of Portland, McCABE of Skowhegan, PETERSON of Rumford, RUSSELL of Portland, STUCKEY of Portland, TIPPING-SPITZ of Orono.
Since I have been researching Maine statutes for many years when I opened L.D. 504 I immediately noticed an additional provision in paragraph one of the act. The first paragraph is not related to the complaint or the court ruling, but at the top of L.D. 504, is the provision that I have already argued is unconstitutional pursuant to the Maine Constitution in this Newsbreak article under the section heading 2011 Overwriting the Maine Constitution's Requirements for Bond Referendums with Statutory Law.
The new ruling struck down the requirement that Candidates must get signatures from party-registered voters only, and that the state can purge parties of their registered voters if they do not meet the quota by a specified date
Quotes from the ruling by Judge Lance E. Walker
Plaintiffs rightly note that the enrollment requirement for party qualification is more burdensome than the former petition requirement, insofar as voters cannot simply sign a petition but must affirmatively enroll in the party to support its qualification drive. Unlike a petition-based system, an enrollment-based system burdens not only the party’s associational freedom,… but also the freedom of unenrolled voters who might support a party’s push to access the ballot while not wishing to pledge themselves to the party. Order on Motions for Summary Judgement page 24 (edited and case references removed by author for easier read)
The Fourteenth Amendment’s Equal Protection Clause provides a bulwark against unfair electoral systems that have the effect of disadvantaging certain classes when it comes to participation in representative democracy. See Williams v. Rhodes, 393 U.S. 23, 29 (1968). Order on Motions for Summary Judgement page 19
States have mandated that party candidates participate in primary elections in part to ensure that party candidates are chosen by intra-party popular vote rather than hand-picked by party bosses. Order on Motions for Summary Judgement footnote 4 on page 4
I structure my discussion to follow Plaintiffs’ challenges, mindful of Plaintiffs’ admonition that they are challenging not only specific burdens but also the way they combine, as “a number of facially valid provisions of election laws may operate in tandem to produce impermissible barriers to constitutional rights.” .Order on Motions for Summary Judgement page 18 (case references removed by author for easier read)
To be sure, I must consider not just the magnitude but the “character” of the burden that Maine places on minor parties by imposing a threshold of party enrollments rather than mere signatures. Lyman, 954 F.3d at 376. See also Perez-Guzman, 346 F.3d at 241 (finding that “synergy” between factors placed otherwise permissible signature requirement “beyond the pale”).
The Secretary contends that it is logically impossible for Plaintiffs to have been burdened “at all,” because “once a party is disqualified, it ceases to exist” in the eyes of the law. But the very existence of this case makes clear that the Secretary’s neat syllogism is unsound—whether recognized by law or not, “a party continues to exist so long as it retains enough of the features that ordinarily serve to constitute a voluntary association of persons: chiefly membership, a name, and a purpose.” McLaughlin, 65 F.3d at 1228 Order on Motions for Summary Judgement footnote page 35, (case references removed by author for easier read)
A few factors stand out to me as making this provision particularly burdensome. Purging a disqualified party’s members and preventing new members from joining their ranks, strikes at the heart of political organization and movement building. A political party’s continued growth and vitality depend on its ability to identify and organize its supporters, and on voters’ ability to join the party should they desire to do so. In any given year, thousands of new voters register in Maine, where they have the options of joining one of the established parties or declaring themselves unenrolled. By disqualifying a party, the State thus strikes a double blow to nascent political organizations—not only does it unenroll their hard-won supporters, it also deprives them of the natural growth by inertia that established parties enjoy.
Second, I consider the “past experience” of newly established political parties in Maine, Storer, 415 U.S. at 742, specifically the fact that Plaintiffs and other minor parties have repeatedly fallen just short of achieving sustained ballot access. The Libertarian Party of Maine has itself twice qualified for ballot access, only to twice see its party-building efforts dashed away. Similarly, three other minor parties have qualified for ballot access in Maine’s recent history, only to quickly lose qualified status and see their voter enrollments purged; and of these, only the Green Independent Party rebounded from disqualification and disaffiliation to establish itself as a sustained force in Maine politics.
Order on Motions for Summary Judgement page 36
Third, I consider the fact that Maine law does not leave open any obvious alternatives for minor parties who wish to gain ballot access but find themselves trapped in the cul-de-sac of qualification and unenrollment. Many states make up for their burdensome ballot qualification regimes by creating intermediary designations whereby members of political minorities can still exercise their associational rights—and, crucially, can continue to grow their membership. Maine may constitutionally choose to regulate its electoral system differently than other states. But the fact that no such alternative to qualification exists in Maine only emphasizes the burden that minor parties experience. Lastly, I note that the “overall burden” of the purge is particularly sharp when “viewed collectively” with the rest of Maine’s ballot access requirements. Thurston, 962 F.3d at 399 (listing factors to be reviewed to be considered by court in ballot access case). Maine imposes the purge in response to a relatively common event for small parties, given the high threshold that Maine imposes for continued ballot access. As I noted above, Maine’s threshold for continued ballot access—either 10,000 enrolled members or 5% of the popular vote—only just falls within constitutional bounds. The purge’s effect on disqualified parties is enhanced by the fact that Maine conditions party qualification on enrollment rather than mere petition signatures—making each party member lost in the purge all the move valuable to the party. In the context of a less-restrictive ballot access regime than Maine’s forced disaffiliation might be little more than an administrative speed bump for small parties; but under Maine law, it poses a Jersey barrier.
Order on Motions for Summary Judgement page 37 (references edited by author for easier read)
CONCLUSION
The act of purging voter enrollment is a punishment in search of a wrong that would make Kafka blush. Aspiring political parties and their adherents ought not have their ballot access be conditioned on the statutory equivalent of pushing rope uphill. Order on Motions for Summary Judgement page 40
The party-member signature requirement of § 335(2) is unconstitutional as applied to Plaintiffs, in violation of the associational and equal protection rights protected by the First and Fourteenth Amendments of the United States Constitution.
The Secretary’s practice of forcibly disaffiliating members of disqualified political parties is also unconstitutional as applied to Plaintiffs, in violation of the right to associate protected by the First and Fourteenth Amendments of the United States Constitution.
In all other respects, Plaintiffs’ challenge to Maine’s election laws fails.
SO ORDERED. Dated this 17th day of November, 2021. /s/ Lance E. Walker UNITED STATES DISTRICT JUDGE Order on Motions for Summary Judgement page 41