Launching a Real Third Party in Election Year: Even with Trump as a Motivator, Near Impossible

But those into small government and the Constitution who can't abide Trump, never fear: The Libertarian Party already exists with ballot access in a majority of states.


Nick Gillespie wrote earlier today about libertarian legal whiz Randy Barnett's call in today's USA Today for a new, anti-Trump party dedicated to the Constitution to provide a home for voters who can't stomach him or, presumably, a Party whose voters nominated him.


I wrote back in January about some of the legal and cost barricades toward Michael Bloomberg's talk of an independent presidential run. Even today, none of them are impossibly insurmountable if you have a ton of money to hire people to run signature-collecting drives.

However, running an entire new third party with a slate of candidates beyond just the president, as Barnett is suggesting, is an even more difficult legal row to hoe, and in fact seems to likely be full on impossible starting from March 1.

A brief survey of such legal issues, focusing on ballot access signature collection and deadlines, follows, with facts derived from a not-online issue of the irreplaceable Ballot Access News.

Deadlines for signature collection are already past or utterly impossible for full party slates in these states: Alabama (today), Arizona (two days from now), California, Colorado, Hawaii, Maine, Massachusetts, Mississippi, Oklahoma (today), Utah, and Vermont. Montana and South Dakota both have deadlines before the end of this month that are likely not possible.

And for 21 states, the signature requirements are higher, often very much higher, for full party slates than for just presidential candidates.

And according to Richard Winger, longtime editor of Ballot Access News, there isn't even any legal way to start in a presidential election year and get on the ballot as a new party in Connecticut, Illinois, Indiana, Kentucky, New Jersey, New York, Pennsylvania, Virginia, Washington, and West Virginia.

Winger clarifies in an email, in most of those states:

the group must first nominate candidates and then circulate a candidate petition. And if the candidate receives a certain percentage of the vote, then and only then does the group become a qualified party.

So, qualified party status is impossible to attain, for the group's first election.

It's even worse in New York, Indiana, and Kentucky.  A group formed in a presidential year cannot attain qualified party status in New York or Indiana before that presidential election, and furthermore no matter how well its candidates do in that presidential year election (even if it wins!) it still can't be a qualified party for another 2 years.  New York requires a certain vote for Governor, which of course only comes up once every 4 years.  Indiana is the same, but the office is Secretary of State, also a midterm year-only office.

Barnett has been long and loudly on record as objecting to the existence of a third party that seems, on the surface at least, to do what he's asking: the Libertarian Party (L.P.).

In the past it has been, roughly, because he believed the existence of the L.P. inevitably peeled voters away from the Republicans, the very voters who supported positive, libertarian-leaning (dare I say, mostly constitutionalist?) tendencies and candidates in that Party, thus making one of the only parties that can win elections in our non-parliamentary, first-past-the-post system worse in liberty terms.

Now that he's explicitly saying that we need a Party to do such peeling of voters with such commitments from a Trumpized GOP, he still won't just say that such voters might want to think of going for the already existing Party that's already leaped over all these Third Party ballot access barricades detailed above in 34 states for this year, according to Ballotpedia   31 states as of today, according to the L.P. itself, down from its 2012 48 states, but the Party is confident based on required signature numbers and deadlines that they'll get enough signatures for many more, likely exceeding last round's 48, by the time it's all over.

I will suggest that such voters who can't imagine supporting Trump, or the Party that nominated him, do remember that the Libertarian Party already exists. That's certainly a more realistic choice than launching another third party with constitutionalist convictions. (Though Barnett has previously, in a non-Trump context, made convincing arguments that actual libertarian change in American politics in anything like our current situation will likely require electing politicans who are not hardcore libertarian.)

Curiously, there already was a "major party" in recent American history with the name that Barnett uses to refer to his fantasy one. The national Constitution Party (a largely religious-based right-wing party) has a Colorado branch whose official name is "American Constitution Party."

And after they ran once-and-future Republican Tom Tancredo for governor on their ticket in 2010, they got 36 percent of the vote, trouncing Republican Dan Maes' 11 percent. Beating 10 percent in the governor's race got them official major party ballot status in the state, which they lost in 2014 when they didn't even run anyone for governor.

In an amusing irony, as related in this Associated Press account from 2011, the legal requirements for being a major party in the state weighed heavily on this very small and underfinanced operation:

With only 4,134 members, the ACP has had to create a 21-member central committee, elect an executive committee and set up party committees in each of Colorado's 64 counties. In exchange, the party gets a place at or near the top of the ballot in the next gubernatorial election in 2014.

"We keep asking Secretary of State Scott Gessler what's the benefit of being a major party. We get a higher position on the ballot, but if that's the only thing, it's not worth it," said Amanda Campbell, the ACP's treasurer and an executive board member.

Being a major party brings major responsibilities, like filing detailed campaign finance reports, hiring lawyers to interpret complicated state and federal reporting requirements, and holding primaries and caucuses.

But according to the secretary of state's website, the ACP had just $817 in the bank as of April 15….

I wrote back in 2004 on third parties as a consumption expense.