A recent federal appeals court decision struck down the requirement that minor parties offer a full slate of candidates for statewide or countywide offices, while another court battle looms.

On a windy Sunday in October, Josh Dill spent the afternoon gathering petition signatures for a Democratic candidate for Congress, Dr. David Gill.

Dill, a Springfield resident, has knocked on doors for Democratic and third-party candidates. That includes when he ran for Congress under a new party, the Lincoln Liberty Party, in 2014. The reaction from people answering the door is usually the same whether he’s petitioning for a Democrat or third party, he says.

“Most of the people that vote all the time are interested in options (on the ballot),” he says. The challenge for third party hopefuls is that they’re required to get significantly more signatures than Democrats or Republicans, he adds.

For legislative and Congressional races, the threshold for minor-party candidates is 5 percent of the total votes cast in the last election for that race, while candidates for the two major parties each need half of one percent.

Illinois is one of the more restrictive states when it comes to rules for candidates not affiliated with the two major parties. A recent federal appeals court decision loosened one restriction, striking down the requirement that minor parties offer a full-slate of candidates for statewide or countywide offices.

Weeks later, the same court upheld the state’s higher petition signature requirement for minor-party and independent candidates, noting the 5 percent rule is within the constitutionally accepted limit on candidates.

Ballot access advocates and third-party members count the full-slate decision as a victory and potential turning point. They’ll have another day in court in 2018 to make their case against the signature requirement. Meanwhile, some political observers believe the increasingly polarized political landscape could benefit from more participation by third parties and independents.

In September, the Seventh Circuit Court of Appeals upheld a lower court’s decision that the full slate requirement was unconstitutional. The ruling would make the law unenforceable, according to an Illinois State Board of Elections attorney. That means if the Libertarian Party has a candidate for governor, it’s not required to also have a pick for secretary of state, attorney general, treasurer and comptroller.

Third party and independent candidates in Illinois have different filing deadlines and a higher number of petitions they have to collect to get on the ballot. In this week’s Illinois Issues in-depth report, Mary Hansen explains a recent change in the rules for third parties and the ongoing debate about where to draw the line for candidates who are neither Democrats nor Republicans.

The state could appeal the decision. The attorney general’s office declined to comment on the case, including whether it would file an appeal.

Lex Green, chair of the Libertarian Party in Illinois, was a defendant in the case. In the past, the party struggled to recruit candidates for some races, he says. There’d be a member interested in running for governor, but then the party would have to look for a qualified pick for attorney general or secretary of state.

“We've had to recruit heavily and convince someone to be a candidate in name only,” Green says. “[Now] we can concentrate on effective races.”

Illinois is the only state to have such a restriction. The rule was put into place in the early 1930s when the state had a cumulative voting system.

In the Libertarian Party case, the state argued that the restriction promotes political stability and avoids ballot overcrowding and voter confusion.

In the court’s opinion, Circuit Judge Diane Sykes wrote that the full-slate rule actually encourages ballot overcrowding by having third parties put forward “frivolous ‘candidates.’” The opinion goes on to say that the signature requirement “suffices to winnow out weak parties.”

The Seventh Circuit sided with the state in October, upholding the constitutionality of the signature threshold for minor parties. Two Green Party members from southern Illinois who ran for state legislature in 2014 contended that the requirement and 90-day period to collect it, as well as what they said was unfair redistricting, infringed on their rights to run for office.

The state countered that Green Party candidates had met the requirements in the two previous elections. And in its opinion, the court noted that comparing the threshold for minor parties to that for major parties is comparing apples to oranges, as major parties already proved they had support by getting at least 5 percent of the votes cast in the previous election.

But third-party members and ballot access advocates continue to see it as overly burdensome.

“The number of signatures is so out of whack with the rest of the country,” says Richard Winger, who publishes a newsletter on ballot access nationwide. He notes that the requirement is so stringent, few candidates have been able to meet it.

There should be reasonable restrictions for running for office, contends former Illinois State Board of Elections executive director Ron Michaelson. He points to the problem of ballot fatigue - when there are so many races and candidates that voters fail to fill out the entire ballot.

“If you let all these new parties and independents, regardless of whether they had a modicum of strength or not, on the ballot … you’d have more ballot fatigue,” Michaelson says.

The question is where to draw the line. He says Illinois’ rule for minor party candidates running for statewide office to get five times the number of signatures is “unfair” and “burdensome.” The system should be opened up, he says.

“Something's got to happen to give us a jolt and get us back on an even keel, a more rational way of doing things,” Michaelson says. “Maybe this is one thing that can help that along.”

There are other ways to make it easier for third parties to get on the ballot than lowering the signature quotas. The state could provide another process for a minor party to qualify as an “established” party, thus having to comply with the same, less stringent requirements as the Democratic and Republican parties do now, Winger says.

Illinois is one of 11 states that qualifies parties only if they meet a vote threshold in the previous election. The Prairie State requires a gubernatorial candidate from a new party to get at least 5 percent of the total votes cast for that office to qualify as an established party in the next election. The Illinois Green Party met that threshold in 2006 when Richard Whitney ran for governor, but it was not able to maintain established party status.

By contrast, Wisconsin allows a new party to petition to become established by collecting 10,000 signatures from registered voters, including at least 1,000 from three separate congressional districts. Illinois’ neighbor to the north currently has five qualified parties, while Illinois has two.

North Carolina, a state notable for its restrictive ballot access laws, recently changed its rules for establishing a party. It now allows parties that had a presidential candidate on the ballot in at least 35 states to become established.

Winger says the change shows opening up the ballot could come from legislatures instead of the courts.

“I'm optimistic,” he says. “We're seeing legislatures all over the country decide that overly strict ballot access laws are not good policy.”

Illinois legislators have made attempts. Early this year, state Sen. Kyle McCarter, R-Lebanon, introduced a bill to make the signature requirements the same for an established or new party candidate.

In 2014, state Sen. Andy Manar, D-Bunker Hill, offered similar legislation. Neither bill got a vote.

In the partisan culture of Springfield, Michaelson predicts change will come from the courts.

“The two major parties in the legislature, they haven't shown a lot of enthusiasm in recent years to make it easier for other candidates, other parties to access the ballot,” Michaelson says.

Ballot access advocates will have another chance to prove their point. Gill, a Democrat running for Congress in the 13th District, collected signatures to run as an independent for that seat in 2016. After a challenge over the validity of some of those signatures, and mounting a legal case challenging the number requirement, he dropped out of the race. His case goes to trial in September 2018.

Even if it were easier to get on the ballot, political science research shows that only a handful of third-party candidates end up winning elections, says Brian Gaines, a professor at the Institute of Government & Public Affairs at the University of Illinois Urbana-Champaign.

“It’s generally true that the availability of ballot access for small parties in states where it’s been easier – on the whole – they haven’t won a lot of seats. They have put a lot more candidates forth,” Gaines says. “Sometimes they act like spoilers.” That is, they pull votes from Democrats or Republicans.

He points to the 2000 presidential election when Green Party candidate Ralph Nader’s presence on the ballot was blamed for losing then-Vice President Al Gore the election. But Gaines emphasizes that voters then had reasons for supporting Nader and did so even with the knowledge that it could have cost Gore the win.

Still, the idea that minor candidates swing elections is a central reason some Democrats and Republicans defend ballot restrictions.

Pat Brady says it was his responsibility when he served as chairman of the Illinois Republican Party to ensure that his candidates got elected. “If there was a legitimate reason to remove a candidate from the ballot, we tried to do that,” he says.

Given what he sees as extremism in his party and in Democrats, he says there could be room for a viable third party. But he says that reforms, such as redistricting and term limits, could do more to lessen partisanship and extremism.

Dill, the campaign volunteer in Springfield, agrees that ballot access is just one piece of the puzzle.

“Once you get on the ballot, you have to raise enough money to be competitive,” he says.

Illinois Issues is in-depth reporting and analysis that takes you beyond the headlines to provide a deeper understanding of our state.

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