The pandemic may have robbed Donald Trump of a growing economy. It may have trapped Joe Biden in his basement. But it may yet do something even worse to the Libertarian and Green party nominees: keep them off the ballot in many of this year’s key states.

In 2016, the Libertarian Party was on the general election ballot in all 50 states; this year, it has secured ballot access in just 35. Similarly, the Green Party—which in 2016 had its best election ever by making the ballot in 44 states, with another three states granting the party’s candidate official write-in status—has qualified for the November ballot in only 22 states.

Politico
By Bill Scher
April 19, 2020

Several of the elusive ballot lines are in states that in 2016 were either narrowly won or flipped from red-to-blue. At present, neither the Libertarian Party nor the Green Party has qualified for the ballot in Pennsylvania, Wisconsin, New Hampshire, Iowa or Minnesota. Additionally, the Green Party has not secured a place on the ballot in Arizona, Georgia or Nevada, and the Libertarian Party is missing from Maine.

To get on the ballot in the remaining states, they need to collect and submit petition signatures. And in a normal year, they would be on track to do just that. But because of the deadly coronavirus—and the social-distancing and stay-at-home orders to minimize its spread—after March 6, “petitioning was over in the United States,” as Libertarian Party executive director Daniel Fishman told me.

For America’s third parties, this is nothing less than an existential crisis. Without ballot access, national pollsters won’t feel obligated to include Green and Libertarian candidates in their surveys; voters will be less aware of their nominees and platforms; journalists will be less likely to pay any attention to them; and the probability diminishes that either the Libertarians or Greens can reach the holy grail of five percent of the popular vote—the point at which they would finally qualify for federal campaign matching funds.

But for the Democratic and Republican Parties, the absence of third parties from the ballot in key states makes 2020 genuinely unlike any presidential election in recent memory—minimizing the chances for “spoiler” candidates, while giving both major parties something they did not have in 2016: a two-person presidential race, and a simpler path to victory.

Now, don’t count the Libertarians and Greens out just yet. There are multiple fronts to the fight ahead, as they see it, and they’re prepared for battle on each one.

What the Libertarians and Greens want most is for states to waive all remaining petition signature requirements. On March 30, Vermont did just that, via emergency legislation signed by the governor. (The Libertarian Party was already on the ballot in Vermont beforehand, but it added a state to the Green Party list.) Ballot Access News reports that “[i]t is believed that Connecticut Governor Ned Lamont will soon issue an order that says political parties that are ballot-qualified for at least one statewide office will be deemed to be ballot-qualified for all partisan federal and state office, for 2020,” (though both the Libertarians and Greens have already qualified for the presidential election there). A few states have taken smaller steps, such as allowing for electronic signature gathering and delaying deadlines, and more states may follow.

The Green Party is in the process of asking its members to press their governors to issue executive orders that follow Vermont’s lead. But Brendan Phillips, the Green Party’s ballot access coordinator, is not optimistic that the governors will be accommodating. “I don’t expect the majority of governors to provide us with any sort of relief,” Phillips told me, “because in the past, they’ve actively fought to keep us off of the ballot.” Asked if Republican governors might be eager to help the Greens out, he responded, “I suppose that is possible they might want to open that door for us, but that might also open the door to other parties to do the same that they might not want on the ballot.”

One party that Republicans might want to keep off the ballot is the socially conservative, anti-internationalist Constitution Party. Richard Winger, the editor of Ballot Access News and a highly regarded expert on third parties, told me the Constitution Party is likely to “nominate a presidential candidate, Don Blankenship, who has wealth.” That will make it easier for the party to fund the sort of operation necessary in order to get petition signatures and scoop up votes.

You may remember Blankenship from the 2018 campaign, when he ran for the Senate in West Virginia, first in the Republican primary, then in the general election on behalf of the Constitution Party. A coal baron who vehemently maintains his innocence after serving prison time on charges related to the fatal Upper Big Branch Mine disaster, Blankenship made waves for his low-budget ads that referred to “Cocaine Mitch” McConnell and trafficked in racism by referring to McConnell’s Asian-American in-laws as his “China family.”

Such offensive behavior didn’t make Blankenship a senator, but in a presidential campaign, it could have more appeal to disaffected Trump voters than any nominee from the socially liberal, pro-immigration Libertarian Party. (In fact, Blankenship once called himself “Trumpier than Trump.”) By May 2, the final day of the Constitution Party’s telephone-based national convention, we’ll know if Blankenship officially receives the group’s nomination. (Blankenship’s campaign did not respond to an email query from me.)

As of now, the Constitution Party isn’t on the ballot in those swing states with Republican governors that the Greens want to access: Arizona, Georgia, Iowa and New Hampshire. So if those states’ GOP governors ease the Green Party’s path to appearing on the ballot, it may also help out the Constitution Party—potentially to Trump’s detriment.

Since the third parties are not expecting uniform assistance from state executive and legislative branches, they are gearing up for more court battles. “We’re prepared to sue everywhere that we have to,” said Fishman, adding that he feels “very confident that we’re going to win all of those court cases” since “there’s never been a stronger case that the petition requirement is unreasonable.”

Experts in election law who were consulted for this story were more skeptical.

“Those kind of cases are not slam dunks because courts are generally wary of changing election rules,” said Rick Hasen of UC-Irvine School of Law, citing litigation over this month’s primary election in Wisconsin, which culminated in the U.S. Supreme Court deciding that the state could not extend the deadline for mail-in ballots because preexisting state law implied they needed to be postmarked by Election Day. “The Court majority was not very moved by arguments about Covid-19 being a compelling enough reason to change from the ordinary requirements of an election,” said Hasen.

“I would be shocked if the minor parties do as well in terms of ballot access this year as they did [in 2016],” said Michael S. Kang of Northwestern University’s Pritzker School of Law. He argues because of a lack of binding precedents, judges have a lot of discretion. In turn, he expects a “mixed response” with some states providing relief and others refusing to change the rules.

“I think they’re going to win lawsuits,” said Winger of Ballot Access News. He pointed to a Supreme Court precedent from the 1980 presidential election which augurs well for third party relief. In April of that year, Congressman John D. Anderson abandoned his Republican presidential primary bid for an independent campaign. But Ohio’s filing deadline for the general election was in March. Anderson got on the Ohio ballot thanks to a district court ruling (he also got on the ballot in every other state), and in Anderson v. Celebrezze, the Supreme Court concluded that excessively early filing deadlines violate the First Amendment.

Even so, Greg Magarian a law professor at Washington University in St. Louis, notes there is a competing precedent—1994’s Timmons v. Twin Cities Area New Party—which, in his words, “says that states can impose constraints on minor parties in order to promote political stability. That isn’t quite a blank check, but it’s a strong declaration that states have a lot of latitude to restrict minor parties.”

Meanwhile, the first court battle to waive all signature requirements is now being waged by the Libertarians and Greens in Illinois, with a hearing scheduled for April 17. The two parties have also teamed up for a Georgia lawsuit, asking the state to pro-rate the number of signatures required, accounting for the days during which canvassing is no longer possible. (Unlike the Greens, the Libertarian Party already met the Georgia requirements for its presidential nominee, but are hoping to aid a Libertarian U.S. House candidate.)

Another possible legal obstacle looms for Libertarians in states with relatively early filing deadlines that require the name of the presidential candidate to be specified. The Libertarian convention is scheduled for May 21 in Austin, Texas, but a delay is expected and alternative plans are not set. This poses a particular problem for the party in New Hampshire, which requires candidates from parties that have not prequalified for the November ballot to issue a statement of intent by June 12.

Other states allow third parties to submit names to serve as stand-ins until an official nominee is selected. But Washington State, Wisconsin and Alabama could present deadline problems similar to New Hampshire’s, though their deadlines are in late July or August.

So even if the Libertarians pitch a perfect game in the courts regarding the waiving of signature requirements, a delay in naming a nominee could still leave them short in a few states. And ballot access in all 50 states, plus DC, again is important to them.

“That is the big issue,” said Fishman, the executive director of the Libertarian Party. “Lacking 50-state ballot access, you become the Green Party. The Green Party has never had 50-state ballot access, and that’s why they still haven’t been taken seriously. … It is not a trivial thing. It requires coordination at the party level that speaks to your competency,” and in turn, “the media tends to pick up on that.” The Libertarian Party plans to sue to push back such deadlines if necessary.

The legal consequences of the pandemic are not the only potential obstacles facing the third and fourth biggest political parties. Neither party can be confident it will nominate candidates who can command as much attention as did their 2016 candidates.

Both parties ran the same candidates in the last two elections: former New Mexico Governor Gary Johnson for the Libertarians, Massachusetts physician-activist Jill Stein for the Greens. Broader ballot access, stronger resume, respectable running mate (fellow former governor William Weld) and a uniquely whimsical persona (described by comedian Samantha Bee as “freaky-deaky”) made Johnson the stronger vote-getter. But as Hillary Clinton ruefully recalled in her post-campaign memoir “What Happened,” in Pennsylvania, Michigan and Wisconsin, Stein won more votes than Trump’s narrow margin of victory.

Johnson and Stein were helped in 2016 by having built-up name recognition in 2012, as well as by facing two major-party nominees with high unfavorability ratings. But since neither candidate wants to find out if the third time’s a charm, we will see new faces this year.

When the Green Party convenes in early July, most likely virtually, Howie Hawkins is expected to receive the nomination. Like Stein, Hawkins is a longtime party activist and past gubernatorial candidate, taking 1.7 percent of vote in 2018 against New York’s Andrew Cuomo. But he has a long way to go before he is a household name.

The Libertarians have had a field of candidates largely unknown outside of party circles. Jacob Hornberger, an ally of Ron Paul, has won six of the nine nonbinding party primaries. (Perennial satirical candidate Vermin Supreme, who has taken on a slightly more serious tone this time around, has won two.) This past week, Jim Gray, a former California judge and Johnson’s 2012 running mate, jumped in the race, defining himself to the libertarian Reason magazine as “an incrementalist and a pragmatist.” Gray had been supporting the Republican-turned-independent-turned-Democrat-turned-Libertarian Lincoln Chafee, but stepped in after Chafee suspended his campaign in early April.

Michigan Congressman Justin Amash, who attracted national attention for quitting the Republican Party and supporting Trump’s impeachment, is attracting the most buzz. This past week, he teased a Libertarian presidential run and said he will make an announcement “soon.” Still, while he would be the highest office holder in the field, his nomination at the convention would not be assured. Johnson needed two ballots at the 2016 convention to win the nod, over opposition from the party’s more radical faction that can be suspicious of former Republicans as insufficiently libertarian. (Johnson in 2016 described a Libertarian Party convention as composed of “really wonderful, well-meaning, well-spoken people … and then people that are just batshit crazy.”)

And while his poll numbers could change if an announcement generated a lot of press coverage, Amash is not starting from a strong position; a Morning Consult poll this week pegs his support in a three-way race with Trump and Biden at a scant one percent. Such anemic numbers wouldn’t help him convince party delegates that he possesses any special ability to help the party clear the 5 percent popular-vote threshold.

The popularity and notoriety of the actual nominees is not irrelevant to parties’ judicial strategy. Beyond the constitutional principles and legalities, judges may not feel much public pressure to bend over backwards for third-party candidates the public isn’t clamoring to support.

“Judges aren’t truly insulated from public sentiment about anything,” said Magarian. “If the public broadly wanted for minor parties to be able to compete more robustly in elections, I think courts would feel at least some background pressure to take minor parties’ complaints about ballot access seriously. Instead, my sense is that the public and most opinion leaders tend to view minor parties as troublemakers, spoilers and refuges for unserious political obstructionists.”

Will the lack of ballot access for third parties impact the 2020 election’s outcome?

Democrats have long blamed Green Party candidates for undermining their presidential candidates: in Florida and New Hampshire in 2000, and in Pennsylvania, Michigan and Wisconsin in 2016. In each of those state contests, the Green Party candidate won more votes than the Republican margin of victory. So for Democrats, the fewer swing states with third-party candidates on the ballot, the fewer heart palpitations.

But whether or not the third-party vote tipped the 2016 to Donald Trump is still hotly debated. Stein campaigned on the argument that Hillary Clinton was not progressive enough, but Johnson sought to attract votes from both disaffected Democrats and Republicans. Still, based on 2016 exit poll data, which asked respondents how they would vote in two-person race, Vox’s Tara Golshan found that without Stein in the running, Clinton “would have won Michigan, still lost Florida, and Wisconsin and Pennsylvania would have been a 48 to 48 percent toss-up.” So, maybe it mattered, maybe it didn’t.

At minimum, a robust minor-party presence complicates major-party strategizing. Instead of focusing on appeals to swing voters in the middle, confident that one’s base is in place, major party candidates would have to worry about whether they need simultaneous appeals to swing voters on the fringes.

The battle for third-party legitimacy by the Libertarians and Greens in 2020 is not over. But if the nation’s state election officials, governors and judges don’t swoop in to save them, Donald Trump and Joe Biden will able to face each other, one against one.