0:00

Hey, everybody. Today, I have a special

0:02

guest and the subject of today is

0:04

ballot access. Because I've been on the

0:06

road the last couple

0:09

of months and everybody knows that

0:11

since I declared my independent candidacy

0:13

for president of the United States,

0:15

that the big question is, can

0:17

we get on the ballot? We

0:19

have retained the campaign, one of

0:21

the great ballot access experts

0:23

in the world. And he's so

0:25

interesting that I wanted you, the

0:27

audience, to hear from him directly.

0:30

His name is Richard Lee Winger,

0:32

who was born in Antioch, California.

0:34

He's an American political activist and

0:36

analyst. He's the publisher and editor

0:38

emeritus of Ballot Access News. If

0:41

you can believe that there is

0:43

actually a publication with

0:45

a large enough audience to justify

0:47

it. He sits on the editorial

0:50

board of the election law journal.

0:52

Dr. Richard Winger is widely regarded

0:54

as an expert as a world's expert

0:56

on ballot access and election law, as

0:58

well as the topic of third party

1:01

politics in the United States. Though not

1:03

an attorney, Winger periodically testifies in court

1:05

cases and legislative hearings and is a

1:07

source for both the media and political

1:09

organizers. He's been published in the Wall

1:12

Street Journal, the Journal of Election Law,

1:15

and many, many other places. He has appeared

1:17

on ABC, NBC,

1:20

and NPR. And his

1:22

newsletter, Ballot Access News, comes out

1:25

monthly. Welcome to the show. I'm

1:27

very honored to be on, and it's a great pleasure

1:29

to talk to you. And

1:32

by the way, congratulations on winning the

1:34

third Ballot Access case for

1:37

2024, your Utah

1:39

case. It's not over, but it's basically won.

1:41

I think

1:44

we're fighting the same, basically the same

1:46

law now in Idaho. Well,

1:49

I hear that Idaho Secretary of State is

1:51

saying they don't really know what their deadline

1:53

is because they used to

1:55

have a separate section for independent presidential candidates,

1:57

giving a very good deadline and letting them

1:59

know. late August and then they repealed it

2:02

but they never replaced it with anything else.

2:04

So your attorney tells me that

2:07

they're probably going to make a

2:09

good ruling and you probably won't have to sue. We'll

2:11

see. Well that's good. So

2:14

tell us about because there's a balance

2:16

here with ballot access that there

2:19

is a legitimate reason

2:21

to make it difficult which is

2:23

to keep sort of I guess

2:25

frivolous candidates from flooding the ballot

2:27

but it actually has become a

2:29

mechanism as a weapon

2:31

to keep everybody off the

2:34

ballot except for the major corporate

2:36

parties, corporate unit party, Republican party,

2:39

and Democratic party. Can

2:42

you talk a little bit about how it's been

2:44

weaponized? Well this is an

2:46

old problem in the 18th

2:48

and 19th centuries it was not a

2:50

problem at all because there were no

2:53

government printed ballots. The government had no

2:55

ability at all to prevent any person

2:57

from voting for anyone they wanted because

3:00

people could write make up their own ballots. That

3:03

was legal. Although most people didn't

3:05

bother they would pick up a ballot from their

3:08

favorite party and throw that in the

3:10

box but they were free to x off names

3:12

they didn't like and write in others but

3:15

as soon as the state started writing

3:18

laws on who could get

3:20

on government ballots we got into

3:22

trouble. The absolute worst

3:25

state was Nevada in

3:27

1893. They

3:29

set a petition to get a new party in the ballot had

3:31

to be signed by 10% to the last

3:34

vote cast and then North

3:36

Carolina in 1901 when they passed a

3:38

ballot access law for their government printed

3:41

ballots they defined the party as something

3:43

that had got 50,000 votes

3:45

for governor in the 1900 election period. There

3:50

was no other way to be

3:52

a qualified party and

3:54

since 1900 was in the past you

3:57

couldn't alter it so the

3:59

democratic Republican parties had each pulled

4:01

over 50,000 votes. They

4:03

were in the ballot forever, permanently,

4:06

and nobody else could ever get on. And there's

4:09

been other horror stories. Was that

4:11

then litigated? No. But

4:14

here's how North Carolina handled it.

4:16

They said, don't worry, socialist

4:19

prohibitionists. It's still legal

4:21

to have private ballots. So

4:23

even though you're not on the government printed ballot,

4:26

your voters are free to put in their

4:28

own private ballot. And that

4:30

was the situation for 30 years.

4:32

And so what is that? What

4:34

are the legal limitations right now

4:36

for people or states

4:38

that want to make it almost impossible for

4:41

people like me to get on the ballot?

4:43

Unfortunately, because of a horrible 1971

4:46

ruling by the U. S. Supreme Court

4:48

from Georgia called Janest versus sports, and

4:51

it's very tough to win these cases.

4:54

The socialist Workers Party sued

4:56

Georgia in 1970 in federal

4:58

court because the law at the

5:00

time said, unless you got 20% of

5:02

the vote in the last election,

5:05

you couldn't get on the ballot unless you submitted

5:07

a petition of 5% of

5:09

the registered voters. Now, that

5:12

is really, really hard. And

5:15

the socialist Workers Party submitted no evidence

5:18

that that was hard. All

5:20

they argued was it's unconstitutional to require

5:22

us to get signatures because Democrats and

5:24

Republicans don't need any signatures to get

5:27

on the primary ballot. That's all they

5:29

said. And they lost unanimously.

5:32

Even the liberals went along with it.

5:35

If they had presented evidence, we would have

5:38

had a much better outcome. But that case

5:40

has plagued us ever since. One

5:42

of the talk about some of

5:44

the impediments today. One of the worst states. Okay,

5:48

they've made it far easier to get on

5:50

for president than for other office. Presidential

5:54

ballot access is

5:56

a nightmare, but it's not a complete

5:58

nightmare. In fact, I consider They

8:00

can't sign their name to a petition. Right.

8:04

So you have to get all new voters. Do

8:06

they have to be registered voters? Yeah,

8:09

they have to be registered voters. Now,

8:11

fortunately, for some reason, Texas has a

8:13

long tradition of very poor turnout in

8:16

primaries. I don't really know why that is.

8:19

But typically, even in presidential years,

8:21

only about a fourth of the

8:23

registered voters vote in Texas primaries.

8:26

And how many signatures do you have to get? Well,

8:28

that's another crazy thing. If you're

8:31

starting a new party, you need 80,000. But

8:33

if you're trying to be an independent presidential candidate,

8:35

you need about 115,000. And

8:39

that's idiotic all by itself. Because

8:42

if the purpose of the ballot access laws is to

8:44

keep the ballot from being too crowded,

8:46

a new party can put candidates

8:48

in the ballot for every single partisan office.

8:51

So it has a far bigger impact

8:53

on ballot space than

8:55

one independent candidate. So

8:57

why in the world should they require more signatures

9:00

for an independent than for a new

9:02

party? It's just a lot of these

9:04

laws are just ridiculous. And

9:06

what are the other states that make it hard

9:09

that we're going to have the hardest time? California,

9:12

New York, Florida,

9:15

although Florida may have

9:17

loopholes, Indiana and

9:20

Arizona, I think, are the hardest six. They

9:23

also have windows, right? Because

9:25

many of the states, you can start signature

9:28

gathering now and you have all the way

9:30

to August. You can start as early as

9:32

you want in Arizona and Indiana. But

9:35

California, Texas, yeah,

9:38

you can start as early as you

9:40

want in Florida also. But California, Texas

9:42

and New York have windows. And New

9:44

York's window is terribly strict, six weeks.

9:47

Furthermore, they have an early deadline also, which

9:49

in May. There's a lawsuit

9:51

pending against that deadline. So

9:53

we may get some judicial relief. And

9:56

Talk about the other impediments that the

9:58

other parties. they are going to be

10:00

good at a we're going to face.

10:03

On we submit are ballast. I.

10:05

Know there's a perception out there than

10:07

a lot of states people will sue

10:09

and claim there aren't as a valid

10:11

signatures. For. Most states don't

10:13

permit that. Most states the election

10:16

officials check the signatures. They.

10:18

Generally do a good job. And

10:20

once they make a decision, Nobody.

10:22

Can sue to overturn it? It's only a

10:25

few states with glitter in the habit of

10:27

having ordinary people. Them. Go. To court

10:29

and say well I don't think the citizens valid

10:31

New York. Especially. In.

10:34

Illinois, especially. To. A

10:36

certain extent, Pennsylvania and Ohio. but

10:38

generally that doesn't happen. You

10:41

do have a little problem in some states that

10:43

make it illegal for people to sign for two

10:46

different. Candidates. For the same

10:48

office. So. If you go out and.

10:50

Kill. A bunch of signatures and unbeknownst

10:52

to you have been to your signers

10:55

had already signed for some other an

10:57

independent presidential candidates after problem. But.

10:59

That's a minority states. also. Then

11:01

there's all this confusion about when

11:03

you have to choose a vice

11:06

presidential nominee. No, fortunately, And Nineteen

11:08

Eighty, Congressman John Be Anderson. Said.

11:10

A lot of very good precedents. The.

11:13

You don't need a Vp right away. He

11:16

was a congressional leader of the Republican

11:18

party. He ran for President in the

11:20

primaries in Nineteen Eighty Than on April

11:22

Twenty thirty. Changed his mind. He said

11:24

I'm getting out of the Republican race. I know Reagan's

11:26

going arena. I'm going to be an independent. When.

11:28

He didn't pick as V until August

11:30

twenty seventh. That. Was former Wisconsin

11:33

Gov Patrick Lucy. So. Practically

11:35

every state said. You.

11:37

Can use a stand him on the petition

11:40

for vice president. And. Will

11:42

let that person resign when you pick the

11:44

real candidate. though as Anderson's.

11:47

Vp. Stand and was Milton Eisenhower. He

11:49

was nine years old at the time.

11:52

It is Dwight Eisenhower's older brother. And

11:54

everybody recognizes he was gonna be the real

11:57

Vp. But. That worked out

11:59

okay and so lot of the they

12:01

have forgotten what they did and they

12:03

are backtracking. And nearby gonna

12:05

have to find some court

12:07

battles over by prisoners, the

12:09

substitution diffuser a stand and

12:11

others and states where. You.

12:14

Can I use this and and. Unfortunately,

12:17

Massachusetts. They. Went backwards

12:19

they used to allow it and then in

12:21

two thousand and eight. The. Libertarian

12:23

Party you Stand ins. And

12:26

the state said. Were. Like except that

12:28

even though they had promised, That

12:30

very year they would. So. Then

12:33

the Libertarian party soon they want and Us

12:35

District court but after the election the first

12:37

circuit. Reverse. That. Said

12:39

no that's of fraud and the voters.

12:42

Showing. Somebody on the petition who's not gonna

12:44

really be running. We. Don't like it

12:46

so. In the first circuit.

12:48

Now the read: substitution. And.

12:50

Of course the first circuit includes for new and and

12:53

states. And what kind of

12:55

dirty tricks have you seen during

12:57

your. Oh, and he enters.

13:00

The. Green Party in Montana.

13:02

Flies. In: I'm. Twenty.

13:05

Eighteen and. Twenty Twenty.

13:08

They. Turn and signatures both times the

13:10

Secretary of state so they had enough

13:12

valid. Then the democratic party which didn't

13:14

want the green party in the ballot. Got.

13:16

Hold of a petition and made a

13:18

massive effort to. Ring. The doorbell

13:21

of all the people That scientists. And.

13:23

Try to persuade him to sign a piece of

13:25

paper taken their name off the petition. And

13:28

the Montana Supreme Court. Allow

13:30

that even though. These.

13:32

People it would reverse their signatures.

13:35

After the Green Party primary here,

13:37

the state, hell, the Green Party

13:39

primary in June and then after

13:41

their primary, the Democrats say, well,

13:43

we've got enough people who took

13:45

their name off the petition which

13:47

has been circulated six months ago

13:49

and the courts to come off.

13:51

That. Was really bad. And

13:54

Is that a federal case? Years at. Know.

13:57

That was in state court. However,

14:00

We got even. After

14:02

that happened. A

14:04

Federal the ninth Circuit struck down

14:07

the Montana ballot access law. Because.

14:09

It into unequal distribution requirements.

14:12

That this i don't have that to our came to try

14:14

and explain are not. Alone. And we

14:17

got even. As

14:19

explain that on okay the

14:21

law said. Of the petition

14:23

needed. A certain number of

14:25

signatures in as one third of the

14:28

legislative districts. But. The trouble was

14:30

the law is very rational. And. And

14:32

some legislative districts. You. Need

14:34

is a sphere was fifty five signatures. In.

14:37

An others he needed as many as one

14:39

hundred and fifty. And yet all

14:41

legislative districts are basically born population.

14:43

So it was a technical decision.

14:46

But. They said this violates one man

14:48

one vote because this is giving the

14:50

people have some districts. More. Power

14:53

than the power of people living

14:55

and other legislative districts. And.

14:59

Then the Secretary of State put the green party and the

15:02

ballot. For. Twenty Twenty Two on the

15:04

basis that the law is unconstitutional and

15:06

around for Twenty Twenty Four. also. So.

15:09

The they were able to overcome

15:11

the law. To. Lay

15:13

you see they missed out. And being of

15:15

the bell, both twenty eighteen and Twenty twenty.

15:17

They. Couldn't get their benefit of this victory

15:19

until after last two elections were over.

15:22

Will. Do you anticipate that when

15:24

I filed my petition in Montana?

15:27

As the democrats and Republicans are going

15:29

to go door to door and check

15:32

on my signatures, him again. Well

15:34

here's the funny thing. The. Democrats can

15:36

get many people to sign. They.

15:39

Only need a small number because

15:41

of this distribution requirements. If

15:43

they knock you off and just one. District.

15:46

You. Were gone. But. The

15:49

distribution requirement is gone now. So.

15:52

If you turn and eight thousand signatures and you

15:54

need five thousand. The. Democrats could

15:56

not. Possibly get

15:59

three thousand. Will the take The

16:01

signature. saw it was only a problem when

16:03

the Democrats only had to get about

16:05

twenty five people to to retract. And

16:08

tell us some of the other dirty tricks.

16:10

The same in Twenty Twenty two. The democrats

16:12

really didn't love the Green party in the

16:14

bell North Carolina. So. Even

16:16

though the County Boards of Election had

16:18

said the Greens have enough valid signatures,

16:21

It went to the State Board of Elections

16:23

which had a three the to democratic majority.

16:25

And. They simply simply wouldn't

16:28

approve the petition. They.

16:30

Had no no grounds. They

16:33

just said well we think we think there was fraud.

16:35

There is no evidence. So. Anyway,

16:37

that Greens went to federal court and won the

16:39

case. And then

16:41

that album on your on the

16:43

ground actually. Getting signatures? Have

16:46

you heard him in? A kind of

16:48

dirty tricks at that point? Where

16:50

there are some things, there's something

16:52

called blockers. If people

16:54

really, really hate you. They.

16:57

Can recruit a bunch of people to.

16:59

Follow. Your petitioners around. And.

17:02

Was the petitioner starts talking to a voter

17:04

in the street that. They.

17:06

Say. Don't sign up with isn't.

17:09

And they they they harass the petitioner

17:11

and them. And the person hears

17:13

he's talking to and that. It.

17:16

Makes it very tough on the petitioners.

17:18

Nobody wants new level. They. There

17:22

are a lot of things that they used to be able

17:24

to do that they can't do anymore. A

17:26

majority states used to say you're circulator

17:28

sad to be registered voters. In

17:31

the state. But those laws

17:33

of almost totally been struck down now. We.

17:36

Have roof. Ginsburg to thank

17:38

for that see wrote a decision.

17:40

From. Colorado. Striking.

17:42

Down A Colorado law that said you had to

17:44

be a registered voter to be a circulator. And

17:47

that that was a big hill. See.

17:50

Didn't strike down the law that you had

17:52

to live on the stay with the lower

17:54

courts then swiftly him. And.

17:56

The. Virtually. Every state,

17:58

you can hire circular or have

18:01

volunteer circulators from another state, and they

18:03

can work anywhere they want. What

18:06

did Ross Perot do to get on the ballot? In

18:09

1992, he was

18:11

so popular, he had millions

18:14

of people that wanted to volunteer for him.

18:17

But he still spent a fortune because

18:19

he felt the need to open storefront

18:21

offices all over the country. And

18:24

that's expensive. You have to pay the rent. The

18:26

store was so that the volunteers

18:28

could come in without

18:30

having to travel too far and

18:33

get trained and pick up

18:35

blank petition forms, and then they had a

18:37

place to turn them in. Now,

18:40

because of modern technology,

18:42

that's not really needed anymore.

18:44

You can have people electronically

18:47

obtain blanks, then you can have

18:49

trainings on Zoom. So

18:52

although he spent a fortune, somebody

18:54

else like you with lots and lots

18:56

of volunteers can manage that

18:59

with less money. And

19:01

what happens if the Super PAC is

19:04

out there getting petitions and

19:06

actually probably competing against the

19:08

campaign? What happens in that

19:11

case? Well, we

19:13

have a couple of good precedents. In

19:15

2004, the Michigan Republican Party

19:17

circulated a petition to get Ralph

19:19

Nader in the ballot as an

19:21

independent presidential candidate. They did it

19:24

totally without talking to

19:26

him. They just did it. And

19:29

then they got enough signatures. They wanted

19:31

to punish the Democrats. Yeah, they

19:33

thought that would hurt the Democrats. It

19:35

does not necessarily follow that having left

19:38

candidates hurts Democrats, but everybody

19:40

thinks it does. There's evidence

19:42

to contradict that, but I won't get into that. But

19:45

anyway, then the Democrats sued and said, you can't do

19:47

that. But the Michigan State Court

19:49

of Appeals ruled, well, there's no law

19:51

against it. If they want to go out and circulate a petition

19:54

for somebody without talking to them and the signatures

19:56

are valid, fine. And

19:58

Then also the same thing happened in 19 years. The In Sixty

20:00

Eight The New York. Were. I'm a

20:03

bunch of people wanted Eugene Mccarthy to

20:05

be an independent presidential candidate and he

20:07

didn't want to. So.

20:09

In New York. Latest. Circulated the

20:11

petition anyway in. The. Lower

20:14

courts put him on. Within the

20:16

highest state court said there's a common

20:18

law right not to be forced to

20:20

be a candidate against your will. So.

20:23

They took him off because he wanted off. But.

20:26

Nobody said there was anything wrong

20:28

with independently circulating in position forum.

20:31

And there's no as easy rule

20:33

that would I suppose as a

20:35

camping and. Back

20:37

and. I'm. Not

20:39

an expert on campaign finance law, but I

20:41

don't think there is. I think it

20:44

would come up already. Were you

20:46

involved with the. With. Rice

20:48

Burroughs camp and were with with Ralph

20:50

Nader and a the other ones. In.

20:53

Of peripheral sales. I am so

20:55

up. In favor of a

20:58

free election, I give advice to anybody

21:00

than asked me. It doesn't matter if

21:02

I. Agree with them or not. I

21:04

just feel good about helping people out and

21:07

and says i know the president's. I

21:10

can be helpful sometimes. Alice

21:12

about some of the cases uber involved

21:14

and. Well. As see.

21:17

I. Think. The happiest.

21:20

Decision. Ever.

21:22

Was. The. Libertarian Party

21:24

case against Ohio. That

21:26

was filed in two thousand and four. At

21:29

the time, the Ohio Party petition was do

21:31

in. December. Of the year before

21:33

the election. And it was a lot

21:35

of signatures belt. Forty. Thousand. And.

21:38

We. Lost in Us District court. We said

21:40

the deadline was too early. And

21:43

then I went. I pull all the way the

21:45

Cincinnati just to be in the audience and and

21:47

six circuit because back then you couldn't watch these

21:49

things on the computer and. There. Are

21:51

three judges like they're always this in the Us Court

21:53

of Appeals. To. Have said nothing.

21:56

The. third one was extremely

21:58

hostile So it was like a duet

22:02

between our lawyer and

22:04

this hostile judge. We

22:06

waited a year for that decision to come out.

22:10

Every day I was checking the court website. Finally

22:12

there it popped up, said reversed. I

22:15

was so surprised and happy. I

22:17

screamed out loud. So

22:20

that's probably my favorite one. Well, Richard

22:23

Winger, thank you very, very much

22:25

for your commitment to our democracy

22:27

and for your lifelong efforts to

22:29

keep American democracy open to

22:31

as many voices of dissent,

22:34

of difference as possible.

22:37

Well thank you for what you're

22:39

doing because you're going to improve

22:41

the law with your lawsuits. So thank

22:43

you. I hope I do

22:45

more than that. Well, I know you

22:47

have other goals, but you will do that.

22:50

Thank you.