Maine’s ballot-access laws ruled unconstitutional. What will we do about it?
We all know that Maine is peculiar in all sorts of ways, so it should be no surprise that we are out on an island in terms of the way we allow access by political parties to our ballots:
“Maine’s statutory scheme is almost entirely unique in the nation,” says Oliver Hall, legal counsel for the Center for Competitive Democracy, “in that the only way to become a ballot-qualified party is to have enough enrolled members.”
Specifically, you need to launch your political party and get to 10,000 members within two elections. Before recent legal revisions, it was even worse: You had to have 10,000 enrollees actually vote in that election!
By Sam Pfeile
January 10, 2022
The Libertarians found these rules onerous. They launched in the 2016 election with 5,000 members, and got as high as 6,240, but failed to get to 20,000 and retain ballot status and were kicked off after 2018. And so they partnered with the Center for Competitive Democracy to argue the rules were unconstitutional under the First and 14th Amendments of the U.S. Constitution, suing the State of Maine.
And they won. In November, U.S District Court Judge Lance Walker declared the Maine rules for ballot access by political parties and their candidates unconstitutional, and on Dec. 31 he issued orders for relief:
- The Secretary of State has to reinstate the Libertarian Party and treat them as a ballot-qualified party for this 2022 election cycle.
- The Secretary of State has to let Libertarian candidates qualify for the ballot using both Libertarian and unenrolled voters’ signatures (instead of just one’s own party’s signatures, as is the current law).
- The Secretary of State has to send a letter, containing a self-addressed stamped envelope, to all of the Libertarians the office unenrolled, offering them the chance to re-enroll with the Libertarians over the course of 45 days.
This is a pretty big deal. A federal court judge has ruled Maine’s laws for party recognition and for qualifying party candidates with party-only signatures for the ballot unconstitutional — and is providing relief by forcing the Secretary of State to change the rules.
For some reason, though, Secretary of State Shenna Bellows hasn’t yet extended that relief to other political parties in Maine, including the Maine Green Independent Party (MGIP).
This came as a surprise to Hall. “Ordinarily, when we win these cases,” he said, “the Secretary of State will voluntarily extend the relief to other minor parties that are recognized in the state, and that’s what we thought the Secretary of State would do here — and should have done.”
Why? Well, the obvious reason is that the district court judge has just declared Maine’s ballot-access rules unconstitutional and one would think if it’s unconstitutional for the party that filed the lawsuit, it’s unconstitutional for all parties. But there are practical reasons as well: “The Secretary of State runs the risk of inviting further litigation — which they are very likely to lose.”
When I called the Secretary of State’s office on Thursday to find out what was up with their interpretation of the ruling and its downstream effects, their director of communications Emily Cook declined to comment. They were still studying the judgment, she said.
I asked when they might be ready to comment. She said she didn’t know. We both laughed uncomfortably. No comment and no timetable for a comment? Okay!
Why is this a big deal? I can speak from some firsthand experience. Right now, the Green Party has at least one candidate (Henry Bear in District 2) hoping to get on the ballot to run in the ranked-choice-voting race for U.S. House of Representatives. Another candidate, Michael Barden, hopes to get on the ballot for governor.
They need 1,000 and 2,000 signatures, respectively, from the 45,500-ish Green Party members here in Maine. Which means they need to get 1 in every 45 party members, or 1 in every 23 party members, to sign their petitions.
Meanwhile, the Dems need 1 in every 400/200 and Republicans need roughly 1 in every 316/158 or so of their party members to sign their petitions to qualify for the ballot, and the relieved Libertarians are in roughly the same boat with Maine’s 360k unenrolled voters.
Why should the Greens have it so tough?
On Friday, they filed to be an intervenor in the Libertarians’ case, hoping to be provided the same relief as the Libertarians, MGIP co-chair Gil Harris said. “It’s an almost unrealistic number of signatures required,” he said. “The Democrats and the Republicans can just go out to a transfer station and just stand there while people come in and there’s a good chance they’ll find people in their party to get their signatures. It’s a lot more difficult for us. We’re forced to go door to door — and in this time of covid, it’s even worse.”
I know this all too well. And Harris knows I know. When Lisa Savage initially ran for U.S. Senate under the Maine Green Independent banner in 2020, I was the guy handling media outreach and doing a lot of the writing and, well, pitching in where I could to help out. Harris was there to help gather signatures over in Limerick, where he was on the Town Council. This was the best-funded and most energized Green campaign since the Jonathan Carter and Pat LaMarche campaigns for governor in the early 2000s (although those races were able to take advantage of public campaign financing in a way we couldn’t).
We had ranked-choice voting! We wouldn’t be “spoilers”! Unfortunately, we couldn’t get on the ballot as a Green. Why? It was virtually impossible. We started with a kick-off party attended by dozens in Portland at midnight on January 1. We had 100+ real volunteers. We had $40k or so in the bank. We had a professional signature-gatherer on staff and working real hours. We had paid signature gatherers under his guidance. We had a professional tool that allowed us to put in all the Greens from the voter rolls and divy up “turf” and create the most-efficient possible routes to go door knocking. We had tabling events at UMaine-Orono, University of Southern Maine, Bowdoin, Southern Maine Community College, and more.
But it’s the middle of winter — the 2,000 signatures from party members for a U.S. Senate campaign have to be gathered between January 1 and March 15 — and Maine’s a big, rural state, and 45,500 members aren’t all that many. And it was really hard to convince people to register Green with the presidential primaries coming right up.
After putting in about 900 person hours we found ourselves with … about 900 signatures and it was almost March. My son and I took three different days driving around Gray and New Gloucester. In 10 hours, we got about 15 or 20 signatures. (Only once did someone mention their gun, but it was still a bit harrowing at times.)
Time to pivot. We used our volunteer network to sit at the polls on presidential primary day and got all the signatures we needed to run as an unenrolled candidate in a single day. In fact, we got almost 10,000 signatures. We sorta stopped counting them after a while. We had plenty.
Why should it be so hard to get on the ballot under a party’s banner, and so relatively easy as an independent or a large-party candidate? That doesn’t feel like an even playing field.
Obviously, Judge Walker agreed. It’s anti-democratic and it’s unconstitutional.
Which is why it’s so puzzling to see Secretary Bellows refusing to extend the relief to the Greens in this case.
This is the person who just tweeted, “Making sure everyone can vote AND counting every vote are both important in a democracy. It’s not an either/or choice. Our democracy is damaged if we perpetuate a system in which some can participate freely and others cannot.”
And tweeted this: “The fundamental right of any American citizen to vote freely, fairly and to have their vote counted is the premise of our democracy. The Constitution and the Bill of Rights are not values to be compromised away.”
Doesn’t it seem like she’s overseeing a system where some are participating more freely than others? Isn’t she compromising the Constitution?
The lawyer, Hall, who has litigated many of these types of cases on behalf of smaller parties, had a cynical view: “They want it to be as easy as possible to vote, but not as easily as possible to vote for Greens or Libertarians.”
It might be easy to think, “Of course! That’s the way politics is. No one wants the other party to get a better shot!” Bellows is a Democrat. Cook, her communications director, just spent five years as a democratic aide in the state legislature. Members of one party always want to make it harder for the other parties. That’s politics, right?
But that’s just not true. You know what evidence swayed Judge Walker to rule in favor of the Libertarians? The declaration that our Lisa Savage for Senate campaign submitted as evidence in the case, describing our failure in signature gathering and pivot to unenrolled. We as a campaign firmly believed that it should be easier to get on the ballot for everyone, not harder. More candidates, more voices, more opinions are better for a robust democracy.
And not just more candidates, but more party-affiliated candidates, especially. If parties serve any benefit, it’s that they publish platforms (or, at least, they used to, before the Trump era undid the Republicans) and people can understand what candidates they don’t much about stand for by understanding the party they represent. Better-informed voters make for better democracies. And it reduces the cult of personality that has taken over our politics in general.
Hopefully, Judge Walker decides to extend the relief to the Greens, although time is already wasting.
Or, even better, Secretary Bellows makes the right decision and extends the relief to the Greens without having to be forced. That’s only fair.
Sam Pfeifle is a writer, editor, and publisher living in Gray. He currently serves as the Chair of the MSAD 15 School Board, was recently the press coordinator for the Lisa for Maine campaign to elect Lisa Savage to the U.S. Senate in 2020, and fronts the World Famous Grassholes. He can be reached at [email protected].