Tis the season to talk about ballot access.

It is a long treasured truism of New York politics that our state has the most onerous ballot access laws in the country and accounts for 50% of the nation’s election law litigation. There are endless articles which quote such a statistic, but not one has ever cited any empirical data to back up that assertion, most likely because one is more likely to find alligators living in a sewer, or Judge Crater living in a cardboard box than to actually find any proof of this Urban Legend’s veracity.

I’m not saying that our ballot access laws aren’t too onerous, because in many instances they are. Those trying to qualify candidates for a general election ballot for a party which has not earned its own ballot line face nearly insurmountable obstacles. It is only because it is rare that anyone finds such petitions worth challenging that candidates who file such petitions manage to survive.

And though the last two decades have seen an extensive simplification of New York’s election law’s requirements, so that they bear little resemblance to the days when the Urban myth about New York State Elections Laws bore some relation to the truth, there are still an extraordinary number of pitfalls a novice faces in getting on the ballot, though the worst might be ignorance of the law.

For instance, a subscribing witness to a petition sheet cannot witness their own signature. The penalty for such a violation is the loss of that one signature, but for some reason there is a widely held belief that such a violation entails the loss of the entire sheet. Back in 1996, a petitioner returned to a candidate’s headquarters having witnessed his own signature and the bonafide signatures of nine other persons. The candidate saw the sheet and panicked, telling the witness not to fill out the witness statement. He then had a lawyer friend of a different gender fill it out instead.

Days later, in the incumbent’s headquarters, an operative examined a xerox of one of the opponent’s sheets, and recognized the name of one of the signatories as a friend. He called his friend and asked about the circumstances of the signature, discovering it had been taken by a woman rather than a man. A call was made to the subscribing witness, who after a lecture describing the consequences of an attorney swearing falsely on an affidavit submitted to a government agency, gave up the candidate, who was then given a lecture on the consequences of candidate fraud, which did not alone dissuade him from making the race, although the anguished pleas of the attorney friend and his wife eventually did.    

There are countless such tales (if this article hadn’t turned out so long, I would have added a few more), in which stupidity and corner cutting, rather than sloath, accounts for the inability a candidate to collect the signatures of 500 voters (the figure for NYC Democrats in an Assembly race) who are members of the proper political party and live in the proper jurisdiction. Such laws do prevent primaries; but they also prevent frivolous candidacies by those being put up because they have similar last names, or will divide a particular ethnic constituency. Still, one has to believe that the inevitable nasty consequences of further simplification of ballot access will not be as bad as the consequences of continuation of the status quo. 

“Good government” types have long embraced the cause of ballot access. Others, like the New York Times, have embraced it selectively; in much the same manner as they’ve treated candidates who opted out of the City’s system of public financing of elections, the Times refuses to endorse candidates who challenge another candidate’s ballot access, except those in cases where they really, really, really feel like doing the opposite.

We see a similar phenomenon among many "reformers" and "progressives", illustrated quite well in this 2006 dialogue I pulled and edited from “Daily Politics”, concerning a challenge by State Senator Martin Connor to an opponent’s residency:  

Anonymous: The State constitution has very specific requirements about residence of state legislators; requirement which are very different than the US constitution's requirements concerning the residency of members of Congress. The state constitution requires state legislators to reside in their districts. When he decided to run for State Senate, he started a renovation of his house and he moved into an apartment in Brooklyn Heights. Last December, he sent out a Christmas card announcing his new address (I got one). It came with a note saying he was still using his old address for business purposes; yeah right. This apparently includes his campaign committee. He even filed a STAR tax exemption form this year listing the Boerum Hill house as his primary residence.   

Stacey: You are relying on legalisms. I guess you're afraid of letting those pesky voters make their own decisions. You know, Bush & Company did the best they could to make sure only legal voters went to the polls in Florida. You can make a legalistic argument if you want, but it just means that people like me will make sure scum like Bush & Connor never get elected in Brooklyn. If you want to disenfranchise people, you don't deserve to step foot in my borough. Knocking someone off a ballot is my definition of scum.

Emanuel C. Andrews: I agree with Stacey; no one should be disqualified from public office merely because they mistakenly filed some inaccurate paperwork with a government agency. I look forward to her joining with me in supporting the “Committee to Pardon Clarence Norman”.

Harvey Strelzin: I agree with Stacey too. And let's not forget to support Roger Green's election to Congress as well.

Stacey: Thanks for the great examples of how people defending limited ballot access compare those who favor ballot access to black criminals.

Sterling Johnson: I think the point, dear Stacey, is that you white reform types are perfectly content to lock up black males, and throw away the key, depriving them of dignity, as well as office, for virtually victimless crimes, while you turn a blind eye when your white yuppie friend commit the same crimes or worse. Why not one standard for every color? Under your standard, Clarence Norman belongs in Albany, not in jail.

Schmo Arpitz: Sterling; how low and disgusting of you to make this about race. Stacey is not a racist. Her double standard applies to all regulars, regardless of race. Like other members of DDDB, she'd have no trouble barring Markowitz from office for his 20 year old misdemeanor plea; however, she's perfectly content to apply a different standard to a politically correct tax cheat.

Stacey: Okay, I admit I made a typo in my last post, so let me make it clear: I am in favor of ballot access. Our restrictive standards are a tool to disenfranchise voters. I don't think they should all win, but the voters should have a choice. The Bushies said that they were just taking felons off the voter roles.

Time to Move on: OK, stop busting Stacy's chops. She's not an inconsistent hypocritical phony reformer and she's no bigot. She really believes that fraudulators with phony addresses, perjurers, tax cheats, and convicted criminals should all be allowed to run for office, regardless of what the law provides. She thinks that people who knock others off the ballot, regardless of what offenses they may have committed are scum.

Stacy, since this is the case, are Jim Brennan and CBID scum, too?

Fox Muir: I think the point about Brennan and CBID is that they have a long history of challenging petitions. In fact, unlike others, who just knock people off the ballot, CBID actually tries to get its opponents sent to jail. I don't object to petition challenges, but getting your opponents disbarred and sentenced to community service seems rather extreme.

Perhaps the O'Hara prosecution was justified. But, if Stacey really believes her argument, she should consider Jim Brennan scum and explain why it is wrong for Marty Connor to do ballot access challenges, but OK for Brennan to couple them with the long arm of the law's heavy hand. Stacey is Jim Brennan scum or not?

Stacey: The Brennan stuff sounds fishy to me. I'll look into it.

But as an aside: From what I hear, Tracy Boyland could have easily been pushed off the ballot (for the price of legal fees, which might mount to $20K), but Velmanette Montgomery decided to let the voters decide.

Anna Jefferson: Harpers had a piece by Christopher Ketcham last year on the whole O'Hara thing; it's a national story; can't see how you missed it.

As to Velmanette Montgomery, I'm surprised; in the past she displayed no such hesitation about knocking off her opponents. She only became a Senator because she knocked off an incumbent opponent on the most technical of technicalities (the incumbent was restored by the Feds at the last minute, but by the damage had been done and Velmanette won).

You really need to brush up on your history. Based upon your standard, Velmanette's entire career is based upon being a scumbag. So, I ask you once again, are Brennan and Montgomery scum too, or do only folks you don't like qualify?

Stacey: I'm always up on learning more about history, so if you have stories to tell, I'm all ears. A lot of people have a dirty history, and I want to know the foibles of my allies and enemies.

Can you possibly accept that I'm being consistent? Or do you revile anyone who wants a fair and open political system? 

Anonymous: I think you believe what you believe; but, I think you are holding people like Marty Connor to a standard that is honored mostly in the breach. And, in this case, since his challenge is based upon the legal requirements for office as enshrined in the state constitution, rather than on technicalities, Connor's is actually among the least offensive types of ballot access challenges (Velmanette's was based upon an unintentional misstatement in the number of signatures in an otherwise valid petition, a requirement so stupid that the even the legislature eventually recognized it as bogus and eliminated it).

Stacey: I didn't miss the Harpers piece.    

Puzzled:  Now I’m really confused. You say you read the Harper's article, wherein Jim Brennan attempts not merely to get John O'Hara thrown off the ballot, but incarcerated as well, and succeeds in getting him disbarred and sentenced to community service, and yet still refuse to call Brennan scum. But, Connor you call scum for merely attempting ro prevent a violation of the terms of the state constitution. And, yet you plead with me to accept that you are being consistent?

When you are willing to hold Jim Brennan and Velmanette Montgomery to the stand standard to which you hold Marty Connor, we can talk about your integrity. 

(Strangely enough, Stacy appears to have posted no further comments on this subject)

At this juncture I guess I need to point out that residency requirements are wildly inconsistent; the US Constitution only requires you live in the same state to run for Congress, and the NYS constitution imposes them pretty strictly upon the legislature (except in reapportionment years) while no one apparently understood the requirements for a member of the City Council until last year.

I favor some sort of requirement, if only because in many poor districts, outsiders would otherwise be able to buy a seat, provided they were the right color. In fact, they would have an advantage over the sort of poor folks who actually live in such districts. I think communities like Brownsville and East New York should be represented by folks who actually have to live there. Otherwise, what it the point of having constituencies? 

However, the fact is that the case law on the subject seems to be a mess, and Rock Hackshaw’s frequent complaints that residency requirements seem to be applied unevenly is quite on point.

And, to be clear, I happen to like Jim Brennan quite a lot, and think he would be a great City Comptroller; I’ve even written a piece defending him on the matter of O’Hara. I also happen to be somewhat fond of Senator Montgomery, who I endorsed last time, and whose primary opponent, Tony Herbert (at least he was until he failed to file his petitions), I labeled a Republican plant.  

But, if pursuing ballot access challenges is the mark of scum (and I most certainly feel it is not), then “reformers” Brennan and Montgomery must be crowned the King and Queen, given the impacts of their particular ballot access challenge histories on their lives and the lives of others.

But, the tale that follows, which I found on the web in somewhat different form, tops them all, and will hopefully serve as a useful lesson to “reformers” and “progressives” to quick to throw out pejorative labels without first looking in the mirror:  

“The Day after the first of Candidate B’s opponents filed their nominating petitions, B’s operative’s descended upon the Board of Elections. There they began the tedious process of challenging hundreds of signatures on the nominating petitions of the other candidates, including the incumbent, who had been previously been Candidate B’s mentor. And they kept challenging petitions until every one of Candidate B’s four Democratic primary rivals was forced off the ballot.

Fresh from his work as a civil rights lawyer and head of a voter registration project that expanded access to the ballot box, Candidate B had launched his first campaign saying he wanted to empower disenfranchised citizens. But in that initial bid for political office, Candidate B quickly mastered the bare-knuckle arts of local electoral politics. His overwhelming legal onslaught signaled his impatience to gain office, even if that meant elbowing aside his mentor.

One of the candidates he eliminated, long-shot contender Gha-is Askia, now says that Candidate B’s petition challenges belied his image as a champion of the little guy and crusader for voter rights. "Why say you're for a new tomorrow, then do old-style…politics to remove legitimate candidates?" Askia said. "He talks about honor and democracy, but what honor is there in getting rid of every other candidate so you can run scot-free? Why not let the people decide?"

In a recent interview, Candidate B granted that "there's a legitimate argument to be made that you shouldn't create barriers to people getting on the ballot." But the unsparing legal tactics were justified, he said, by obvious flaws in his opponents' signature sheets. "To my mind, we were just abiding by the rules that had been set up," Candidate B recalled.

"I gave some thought to … should people be on the ballot even if they didn't meet the requirements," he said. "My conclusion was that if you couldn't run a successful petition drive, then that raised questions in terms of how effective a representative you were going to be."

Asked whether the district's primary voters were well-served by having only one candidate, Candidate B smiled and said: "I think they ended up [well represented]”.

Candidate B’s mentor had served the district for much of the 1990s. Decades earlier, she was working as a community organizer in the area. She risked her safe seat to run in a special election for higher office and touted Candidate B as a suitable successor. But when she got clobbered in that special election race, her supporters asked Candidate B to fold his campaign so she could easily retain seat.

Candidate B not only refused to step aside, he filed challenges that nullified his mentor’s hastily gathered nominating petitions, forcing her to withdraw. "I liked her a lot. I thought she was a good public servant," Candidate B recalled, "It was very awkward. That part of it I wish had played out entirely differently."

Candidate B contended that in the case of the 1996 race, in which he routed token opposition in the general election, he was ready to compete in the primary if necessary. And he defended his use of ballot maneuvers: "If you can win, you should win and get to work doing the people's business."

At the time, though, Candidate B seemed less at ease with the decision, according to aides. They said the first-time candidate initially expressed reservations about using challenges to eliminate all his fellow Democrats. "He wondered if we should knock everybody off the ballot. How would that look?" said his consultant.

In the end, Candidate B’s supporters filed objections to all four of his Democratic rivals at the candidate's behest. While Candidate B didn't attend the hearings, "he wanted us to call him every night and let him know what we were doing,"  

His mentor and the others seemed unprepared for the challenges. But Candidate B didn't gloat over the victories. "I don't think he thought it was, you know, sporting…He wasn't very proud of it." 

After losing the special elecection, his mentor refused to  fade quietly away. Citing an "outpouring" of support, she upended the political landscape by switching gears and deciding to run in the primary for her seat. But she had a big problem. To get on the ballot, she needed to file nominating petitions with enough valid signatures, and the deadline was just days away.  

Just in time for the deadline, she submitted about twice the minimum number of signatures required.

Candidate B marshaled volunteers and began poring through the nominating petitions of his mentor and the three lesser-known Democrats. 

"We looked at those petitions and found that none of them met the requirements of the law….they'd done it in a great hurry. Almost all her petitions were signed a day or so before the deadline…[she] had kids gathering the names. I remember two of her circulators, Pookie and Squirt."

His supporter urged Candidate B to file legal challenges. Such tactics are legal and frequently used. His consultant said, "If you can get 'em, get 'em. Why give 'em a break? …I'm going to knock them all off.'

"He said, 'What do you need?'

"I said, 'I need an attorney.'

"He said, 'Who is the best?'

Little-known candidate Marc Ewell filed 1,286 names, but Candidate B’s  objections left him 86 short of the minimum, and election officials struck him from the ballot. Ewell filed a federal lawsuit contesting the board's decision, Candidate B intervened and prevailed. Ewell could not be reached for comment, but the federal judge's decision showed how he was tripped up by complexities in the election procedures.

Authorities had just completed a massive, routine purge of unqualified names that eliminated 15,871 people from the District’s voter; Ewell and candidate B’s other rivals had relied on early 1995 polling sheets to verify the signatures of registered voters, Candidate B’s challenges were decided at least in part using the most recent, accurate list.

Askia filed 1,899 signatures, but the Candidate B’s objections left him him 69 short. Leafing through scrapbooks in his apartment, Askia, a perennially unsuccessful candidate, acknowledges that he paid Democratic Party precinct workers for some of the petitions, and now suspects they used a classic ruse of passing the papers among themselves to forge the signatures. "They round-tabled me," Askia said.

His mentor to this day does not concede the flaws that Candidate B found in her signatures. She maintains that she could have overcome Candidate B’s objections and stayed on the ballot if she had more time and resources.”  

Not surprisingly, Candidate B’s supporters defend him to the hilt, sounding very much like the Hacks who defend similar efforts by regular Democrats in New York; here’s a sample: 

louisev: I am asking what exactly makes him bad. Playing by the rules, bringing legitimate legal challenges to petitions that were not properly signed off? Please specify the bad part of what he did.

Kinkistyle: I see, so it’s Candidate B’s fault that the other candidates are forging signatures for their petitions. He's supposed to just sit back and let them break the law. What a non-story.

louisev: exactly. Non story. That mean old Candidate B, following the damn rules! 

By the way, the story took place in Chicago, not Brooklyn. The incumbent’s name was Alice Palmer, and she was once a State Senator, none of which probably means squat to you. The Candidate she mentored is a different matter.

Candidate B’s full name is Barack Hussein Obama.  I guess he’s not scum, because I just paypalled him some money. This is one hombre too tough to swiftboat—Thank G-d!

(Special thanks to David Jackson and Ray Long whose Chicago Tribune story provided the climatic portion of this article)