Testimony of Howie Hawkins

New York State Senate Committee on Elections 

“To Review Elections Administration and Voting Rights in Central New York”

Pubic Hearing, August 4, 2021

 

My name is Howie Hawkins. I live in Syacuse, New York. I was the Green Party’s candidate for governor in 2010, 2014, and 2018 and for president in 2020.

The focus of my testimony is improvements that can be made to New York state election laws in five areas:

1. Nonpartisan Election Administration
2. Fair Ballot Access
3. Ranked-Choice Voting
4. Proportional Representation
5. Ballot Simplification through Aggregated Fusion

 

1. Nonpartisan Election Administration

Recommendation: 

New York state should have an independent agency to administer elections at the state and county levels instead of state and local Boards of Elections headed by commissioners appointed by the two major parties.

Discussion:

Few credible democracies in the world still have the governing parties administering their own elections. But that is what we have in New York state.

The credibility of U.S. elections are under assault by Republicans. Their national leaders proclaim without evidence that Joe Biden did not win the presidency. In the states, Republicans are passing laws in state legislatures they control to suppress the vote of minorities and give their legislatures the power to certify elections in place independently elected Secretaries of State and local boards of elections. New York should contribute to resolving this democracy crisis by showing how to depoliticize election administration with an independent, nonpartisan election administration agency.

As the Green Party candidate for president in 2020 who was removed from the ballot in three states by Democratic challengers to our petitions, I can tell you that the partisan election administration is thoroughly politicized in many states. At every level, from bipartisan election boards to each states’ highest court, Democratic and Republican commissioners and judges voted strictly along party lines on our ballot access cases with little to no reference to the facts and the law.

In Montana, Democratic operatives succeeded in harassing and intimidating signers of our ballot petitions to withdraw their signatures by email messages to the Secretary of State’s office months after our ballot petition had been accepted. Signed petitions are similar legally to affidavits. Email messages have no signature or witness. Montana election law has no provision for using email messages to withdraw signatures. Even though these signature removals happened after the Green Party candidates had already run in primaries, the courts affirmed the signature withdrawals by email in order to rule the Green Party off the ballot for the general election.

In Wisconsin, the Democratic chair of the Elections Commission would not let our campaign present our documentation at the hearing on the challenge to our petition. The courts then slow-walked our lawsuit, asking local board of elections to report within a week whether they had already mailed absentee ballots. While an affidavit from the head of the Elections Commission and Democratic media messaging were saying more that 378,000 ballots had been mailed, which was repeated on national media, the Milwaukee Journal Sentinel found out in a day by making phone calls to local boards of elections that no ballots had been mailed, a fact not corrected by national media. After sitting on the case for a week until just before the deadline for mailing absentee ballots, the Wisconsin Supreme Court ruled it was too late to consider the merits of our case because it too close to the deadline for mailing absentee ballots.

In Pennsylvania, the Democratic Secretary of State had all the proper documentation for our ballot access petition except that she refused to accept, after Democrats challenged, one form among many that was faxed instead of mailed in.

These are the kind of maneuvers that Vladimer Putin’s political machine used to reject ballot petitions and keep opposition candidates off the ballot in the Moscow city elections in 2019.

In New York, I have not had such obviously partisan attacks on my ballot placement, although my petitions have been challenged by Democrats many times over the years and two of them were ruled insufficient. But to have the two major parties administering their own elections gives an obvious appearance of conflict of interest. An independent, nonpartisan agency would remove that appearance.

One possible model of depoliticized election administration would be Elections Canada, which is an independent, non-partisan agency of Parliament created in 1920 to put an end to political partisanship in the administration of federal elections. Other models of independent agencies that administer elections in English-speaking countries are call the Electoral Commissions of Australia, Malta, New Zealand, and the U.K. Ireland is considering a bill to establish an independent Elections Commission.

2. Fair Ballot Access

Recommendation:

Based on the fair ballot access proposals I cite below and what other states and nations require for ballot access that I summarize below, I believe a fair ballot access law in New York would put a party on the state ballots if it met one of these three criteria:

Petition: 10,000 signatures

Vote: 50,000 for any statewide office

Party Enrollment: 10,000

A fair ballot access law would also substantially reduce the number of signatures required for other offices that are not statewide and would increase the time to collect signatures to at least six months, which is common in most states.

Discussion:

Voting rights should include the right to vote for who you want. But New York’s new ballot access law makes it extremely difficult for independent candidates and minor parties to get on the ballot where their supporters can vote for them.

Party suppression is a form of voter suppression. 61% of voters for Jill Stein, the 2016 Green presidential candidate, would have not voted had she not been on the ballot, according to exit polls. Third parties bring out voters who otherwise will not vote because the two major parties do not represent their political viewpoints. Party suppression is what authoritarian rulers do. It is what the Democrats often do to the Green Party through highly restrictive ballot access laws and challenges to ballot access petitions. 

In April 2020, while the public was pre-occupied with the Covid lockdown, New York enacted a new ballot access law that radically increased ballot access requirements:

• The new law basically tripled the votes needed to maintain a ballot line from 50,000 votes to 135,000, or 2% of the total, whichever is greater. In 2020, 2% of the vote was 174,000 votes.
• It doubled the frequency that the 2% standard must be met, from every four years in gubernatorial elections to every two years in both gubernatorial and presidential elections.
• It tripled the signatures required on a ballot access petition for statewide candidates from 15,000 to 45,000 to be collected in a 42-day window, making New York the most difficult state in the nation to get on the ballot.
• It quintupled the signatures required in half of the congressional districts from 100 to 500. Failure to meet this distribution requirement is the most common way ballot petitions for statewide office are invalidated.

The result of this new law was that four of the eight parties in New York were wiped off the ballot in the November 2020 election. New York now has a two-candidate, four-party system where four nominal parties normally run two candidates—the Working Families Party cross-endorses Democrats and the Conservative Party cross-endorses Republicans.

“New York now has the nation’s worst ballot access law for president, if one compares the easier method to get on the ballot for president in each state,” according to Richard Winger, the nation’s foremost expert on ballot access who edits Ballot Access News. New York has the third highest signature requirement (after California and Texas), the second earliest deadline (after Texas), and the shortest period of any state to collect signature. 

New York is one of only ten states that do not provide a method for a party to gain ballot status in advance of a statewide election, such as by petition signatures or party enrollment. Alaska, Arizona, California, Colorado, Delaware, Louisiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, and Oregon also give parties ballot status by having a minimum number of enrolled members.

“To put the difficulty of getting 45,000 signatures in perspective,” Winger observed in the Gotham Gazette, “note that in 2020, not one independent candidate, and not one minor party, successfully completed any petition anywhere in the nation that exceeded 5,000 signatures, for any office.”

New York is not the only state that has targeted the Green Party for exclusion from the ballot. In May 2021, Nevada Democrats pushed through a more onerous ballot access law. “The true motive for the bill is to block the Green Party from getting back on the ballot,” according to Winger.

Without a fairer ballot access law in New York, independent and minor party candidates will remain systematically excluded from ballots by petitioning requirements that are far more onerous in New York than in almost every other electoral democracy in the world. We can see this by comparing the petitioning requirements to run as an independent for the House of Representatives to that for independents running for the national legislatures of different countries.

To run as an independent or new party candidate for the House of Representatives in the United States, it takes thousands or tens of thousands of petition signatures in New York and most states to get placed on the ballot. In New York, it takes 3,500 signatures; over 5,000 in Ohio; over 7,500 in North Carolina; 10,400 in Florida; over 15,000 in Arizona and Illinois; over 20,000 in Georgia and Oklahoma; over 30,000 in Alabama; over 40,000 in Indiana. Most other states are in the 1,000 to 5,000 range.

To run as an independent for the House of Commons in the U.K., it takes 10 signatures. It take 10 signatures for the Lok Sabha, India’s lower house of parliament. In New Zealand, it takes two signatures to run as an independent for its unicameral parliament. It takes 50 for Australia’s House of Representatives and 100 for Canada’s parliament (or 50 in the more rural districts). For Germany’s parliament, the Bundestag, it takes 200 signatures to run as an independent.

On the other hand, some U.S. states have substantially lower petition signature requirement to run as an independent for the House of Representatives than New York’s 3,500, including Idaho, 500; Iowa, 375; Hawaii, 25; Louisiana, 0 ($900 filing fee); New Jersey, 200; Kentucky, 400; Rhode Island, 250; Tennessee, 25; Utah, 300; Vermont, 500; and Washington, 0 ($1,740 filing fee). In all of these states, petitioners have far more time to collect signatures than the 42-day period in New York.

Below are summaries of three proposals for fair ballot access for parties: congressional legislation proposed by Rep. John Conyers in 1989; a Harvard study from 1999; and recommendations from the election reform organization Fair Vote.

All three proposals came to similar numbers of signatures, votes, and party enrollees for ballot qualification. Below I have adapted their recommendations to New York using the vote totals from the November 2020 election.

Note that most states allow any statewide office to used in meeting the vote requirement for ballot access.

Also note that the Harvard and Fair Vote proposals provides a third way to qualify a party for the ballot, party enrollment, in addition to petition signatures and votes for statewide offices.

FAIR ELECTIONS ACT

https://www.congress.gov/bill/101st-congress/house-bill/1582/text 

Rep. John Conyers introduced this bill in 1989 and reintroduced it in the next to sessions of Congress.

A party is given ballot status by one of the following two methods:

1. Petition: 1000 signatures, or signatures of 0.1% of votes for the office in the previous election, whichever is greater; 210-day collection period between 270 and 60 days before the election.
2. Vote: 20,000 votes, or 1% of votes cast for preceding federal election for President or Senator, whichever is less.

Applied to New York with 8.6 million votes for President in 2020:

Petition: 8,600

Vote: 20,000

A MODEL ACT FOR THE DEMOCRATIZATION OF BALLOT ACCESS (1999)

https://greensocialist.net/model-act-for-ballot-access/ 

The Appleseed Center for Electoral Reform at Harvard proposed uniform federal ballot access standards in 1999 that were similar to Conyers’ thresholds. It made any votes for any statewide office count for meeting the ballot access qualification threshold, as a number of states now do. It also added party registration as a third path to ballot access.

A party is given ballot status by any one of the following methods:

1. Registration: 0.05% of state’s registered voters by 90 days prior to the general election.
2. Petition: 0.1% of state’s registered voters on January 1 submitted by August 15 of same year.
3. Vote: 1% of the votes cast in any statewide office election in at least one of the preceding two elections.

Applied to New York with 13.4 million voters and 8.6 million votes for President in 2020:

Registration: 6,700

Petition: 13,400

Vote: 86,000

BETTER BALLOT ACCESS ACT — MODEL LEGISLATION BY FAIR VOTE

https://fairvote.app.box.com/v/ReasonableAccessModelStatute 

A party is given ballot status by any one of the following methods:

1. Registration: 0.1% of state’s registered voters on January 1 by August 15 of same year.
2. Petition: 0.33% of vote for governor in preceding election, or 10,000 signatures, whichever is less, submitted by 60 days prior to primary election.
3. Vote: 1% of the votes cast in any statewide office election in the preceding election.

Applied to New York with 13.4 million voters and 6,067,362 votes for Governor in 2018:

Registration: 13,400

Petition: 13,400

Vote: 60,674

3. Ranked-Choice Voting

Recommendation:

New York State should enact ranked-choice voting for statewide offices, including governor/lieutenant governor, comptroller, attorney general, U.S. senator, and president.

Discussion:

Ranked-choice voting enables voters to vote for who they prefer the most with having to worry about splitting the vote between like-minded candidates and “spoiling” the election where the less-preferred candidate wins with a plurality. The “spoiler problem” is always a concern in plurality elections with more than two candidates.

Ranked-choice voting proved to be popular in the New York City primary elections on June 21, 2021. A  poll conducted by Edison Research revealed that 95% of voters found the ranked-choice ballot simple to complete and 77% want to use ranked-choice voting in future elections. 

In the Democratic primaries, ranked-choice voting led to more women and people of color running and being elected because they did not have to worry about splitting the female or minority vote. Two of the top three finishers for mayor were women and two of the top three were African American. In the city council races, 29 of 51 city council nominations were won by women, up from 14 women in the current city council. 34 nominations went to Black, Latino, or Asian candidates, up from 26 in the current city council. As Maya Wiley opined in the Washington Post, “I lost the NYC mayoral race, but women and minorities win with ranked-choice voting.”

However, ranked-choice voting in New York City will not be used in the general election, where Green and other minor party candidates candidates will remain disadvantaged by the spoiler problem inherent in plurality voting. Any ranked-choice voting law should not be limited to primaries and special elections so that minor party candidates are not disadvantaged in general elections by the plurality voting system.

4. Proportional Representation

Recommendation:

Ranked-choice voting in multi-member districts should be used in New York to elect representatives to the state assembly and senate and to the House of Representatives so that each political viewpoint has representation proportional to its support in the electorate.

Discussion:

New York should be a multi-party democracy that reflects the full range of political viewpoints in the electorate. The current single-member-district, winner-take-all system over-represents in legislative bodies the two major parties well beyond their actual support in the electorate and excludes minor parties from any representation.

The single-member-district, winner-take-all plurality voting for legislative bodies is exclusionary. The voters for the plurality winner get all the representation and every other political viewpoint—political and ethnic minorities, the major party that is a minority in a particular district—gets no representation. Every political viewpoint is excluded from representation except the plurality winner in a given district. It is not only voters for minor parties like the Greens who are denied representation. Democrats in majority-Republican districts and Republicans in majority-Democratic districts are also denied representation. As a result, tens of millions of Americans are perpetually represented by politicians they oppose, with no hope of changing their representation by voting.

The single-member-district, winner-take-all system makes most districts effectively one-party districts with uncompetitive elections. Over 90% of U.S. House disticts and over 95% of state legislative districts are uncompetitive one-party districts. 

The remedy to the exclusionary nature of single-member plurality voting is proportional representation that gives every political viewpoint representation proportional to its support in the electorate.

If the New York assembly was elected fifteen 10-member districts instead of 150 single-member districts and the senate was elected from seven 9-member districts instead of 63 single-member districts, each political viewpoints would elect a representative for about every 10% support there is for it in a district. 

If the elections for New York’s 26 Representatives to the U.S. House used ranked-choice voting (RCV) in six 4- or 5-member districts, different political viewpoints would elect a representative for every 20% support in 4-member districts and for every 17% support in 5-member districts. 

The Fair Representation Act introduced in Congress already proposes to require proportional representation through RCV in multi-member districts. New York could enact this system for House elections on its own. For state legislative elections, to implement proportional RCV will require an amendment to Article III, Section 5 of the state constitution, which says the members of the assembly must be elected from single districts. 

Proportional representation eliminates gerrymandering. Partisan gerrymandering takes advantage of single-member winner-take-all districts to create districts that are even more safe for one major party or the other. But while redistricting can game single-member winner-take-all district lines for partisan gain, it cannot do so for multi-member districts using ranked-choice voting because every political viewpoint gets its proportional share of representation within those districts. Proportional representation is far more effective not only at eliminating gerrymandering than independent redistricting commissions. It also makes every election competitive because every vote counts toward electing a proportional share of representation for one’s political viewpoint. Although one-party partisan bias may be removed with independent redistricting, single-member districts still yields a two-party bias where most districts will be uncompetitive and dominated by one of the two major parties.

Single-member-district elections tend to produce legislatures dominated by two major parties, whether plurality voting or RCV is used. Australian elections demonstrate this strong two-party bias in single-member-district elections even when RCV is used. They show the radically different outcomes in party representation between single-seat RCV and multi-seat RCV. 

In Australia, the House of Representatives is elected by single-seat RCV while the Senate is elected by multi-seat RCV. In the 2019 elections, the Green Party received 10.4% of the first-choice votes for the House nationwide but only 1 of 151 seats under single-seat RCV. In the Senate under multi-seat RCV, the Greens won 9 of 76 seats, which was 11.8% of the seats and close to their 10.2% of first-choice votes. The vote percentages were nearly the same and seat numbers exactly the same in both houses for the Greens in the 2016 elections. 

The two major parties in Australia, on the other hand, had their popular vote magnified into over-representation in the House by the single-member-district, winner-take-all system. In 2019, the Liberal/National Coalition received 42% of the vote but 51% of the seats, while Labor received 35% of the vote but 45% of the seats. Under the single-member-district, winner-take-all system, grossly disproportional representation is the result, whether the voting is plurality or ranked-choice.

We have had similar outcomes with single-seat and multi-seat RCV in the United States over the years. Since 2004 when single-winner RCV began to be used in the U.S., there have been 236 such elections with at least 3 candidates. Only 15 of those elections, or 3.8%, were won by a candidate who was not the first-round leader. Single-seat RCV does very little to change who is elected compared to plurality voting.

Multi-seat RCV for proportional representation was instituted during the Progressive Era in 24 American cities, including Boulder, Cambridge, Cincinnati, Cleveland, New York City, Sacramento, Toledo, Worcester, and Yonkers. The motivation for RCV for proportional representation in the Progressive Era was to break up the usually Democratic and sometimes Republicans machines that monopolized power in many cities through single-member-district plurality voting and that often ruled with a good measure of bribery, kickbacks, favoritism, and voting fraud. Good-government progressives, the minority major party in a given city, ethnic minority groups, and independent socialist, labor, and progressive parties combined to push through proportional representation. 

Proportional representation worked as intended. More parties were represented on city councils. In New York City, where Democrats had long held nearly all the seats, four or five parties had representation after each of the five city council elections under proportional representation from 1937 to 1945, including the Fusion, Liberal, American Labor, and Communist parties.

Proportional representation also enabled previously excluded ethnic minorities to elect representatives: the first Irish, Italian, and Polish Catholics in Ashtabula and Toledo, and the first African-Americans in Cincinnati, Cleveland, Toledo, and other cities. The first African-American elected to the New York City council was Adam Clayton Powell Jr. in 1941 as a third-party candidate of the American Labor Party. The first women were elected to the New York city council under proportional representation. New York City also used proportional RCV to elect its community school boards from 1969 to 2002 where many ethnic groups previously excluded from elected office in New York City elected their first representatives, including Dominicans, East Asians, and South Asians.

The success of RCV proportional representation in creating multi-racial, multi-party municipal democracies was used against it in repeal campaigns. The repeal campaign in most cities was driven by racist messaging against African American, Irish, and Italian representation on city councils. In New York, the repeal campaign was part of a McCarthy era anti-communist crusade against the election of American Labor and Communist candidates to the New York City council.

At a time when democracy and minority participation and power is again under assault by new voter suppression and partisan election certification laws in states across the United States, New York should set a counter-example of expanding democracy by creating a multi-party democracy by using proportional RCV to elect its state assembly and senate and its U.S. House delegation so that political and ethnic minorities have their proportional and fair share of representation.

5. Ballot Simplification through Aggregated Fusion

Recommendation:

New York should simplify its ballots by replacing disaggregated fusion, where each party has a ballot line and candidates’ names can appear multiple times for each party nomination, with aggregated fusion, where each candidate has one ballot line and all their party nominations appear under their name.

Discussion:

Of the eight states that permit multiple party nominations on the ballot, four states (Idaho, Mississippi, Oregon, Vermont) use aggregated fusion ballots. The other four fusion states (Connecticut, Delaware, New York, South Carolina) use disaggregated fusion ballots. 

Disaggregated fusion makes for more complicated ballots. For example, in the 2018 gubernatorial race, with disaggregated fusion, there were five candidates but ten ballot lines. I appeared once on the ballot as the Green Party candidate while Andrew Cuomo appeared four times (Democratic, Working Families, Independence, Women’s Equality) and Marc Molinaro appeared three times (Republican, Conservative, Reform). If New York had used aggregated fusion, the ballot would have been much simpler, with five ballot lines instead of ten. Each of the five candidates would have had one ballot line and their party nominations would have been listed under their names.

One of the reasons the New York City Charter Commission did not recommend RCV for general elections was the problem of ballot design under disaggregated fusion, even though New York City had solved this problem 80 years ago when it used aggregated fusion on its ballots in five elections from 1937 to 1945 that used multi-seat RCV for proportional representation on its city council.

Another problem that is raised with respect to aggregated fusion voting is how to count the votes of candidates with multiple nominations for the purposes of determining whether a party has enough votes to keep their ballot status. Oregon solves this problem by having the candidates tell the state which of the parties that has nominated them should be listed first under their name on the ballot. The candidate’s votes are then awarded to the party listed first under their name for the purpose of determining whether that party has enough votes to maintain its ballot status.