How New York election law makes Gary Johnson more marginal

ALBANY — Because of the intricacies of New York’s election law, Libertarian presidential candidate Gary Johnson will effectively be running against himself in November.

New York employs an uncommon form of fusion voting, in which candidates' names can appear on the ballot multiple times under different party lines.


Votes for a candidate who appears on different party lines are typically aggregated. For example, the votes Andrew Cuomo received under the Democratic party line in the 2014 gubernatorial election were added to the votes he received under the Working Families Party line and the votes cast for him under the Independence and Women’s Equality party lines further down the ballot.

The process is a bit more complicated in presidential elections. Voters don’t select a presidential candidate; rather, they mark their ballots for a slate of Electoral College candidates pledged to that particular candidate.

Typically, this doesn’t have much of an impact. This year, for example, Hillary Clinton is the nominee of the Democratic, Working Families and Women’s Equality parties. Each of these parties submitted identical slates of Electoral College delegates, so any votes she receives in New York on these lines will be added together. The same goes for Donald Trump, who will appear on the Republican and Conservative lines.

It won’t work that way for Johnson, however.

Since the Libertarian Party did not receive 50,000 votes in the 2014 gubernatorial election, it does not have automatic ballot access in New York. Johnson’s supporters submitted 3,726 pages of petitions last month, and while these were challenged, the state Board of Elections found them to be valid and his name was placed on the Libertarian line.

Since then, the Independence Party gave Johnson its blessing. But it submitted a different list of delegates, meaning people voting for him on the Libertarian line are technically voting for a different group of people from those who support him on the Independence line. That means the vote totals won't be added together.

“The item that people see is electors pledged to support the president and vice president. That’s what the ballot says,” Bob Brehm, the state Board of Elections' Democratic co-executive director, said during Thursday's board meeting. “The 29 names of the people that are behind that ballot all need to be the same under our fusion voting system in order to aggregate the votes.

"So in many instances, that has taken place. Except in one — the Libertarian Party and the Independence Party. Both are supporting the same candidate for president and vice president. Their electors are totally different, so it’s not a push vote, it’s not a vote for the same person, they are two separate items.”

In August, the Siena College Research Institute found he was polling at just 9 percent.

Under a hypothetical scenario in which 20 percent of voters back Johnson on the Libertarian line, 20 percent back him on the Independence, 31 percent support Clinton and 29 percent back Trump, Johnson would have the most votes — 40 percent — but Clinton would be the victor, since his support won’t be aggregated.

"I very much look forward to this becoming a problem," said Frank MacKay, chairman of the Independence Party, since the issue would only arise — and likely be litigated — if Johnson won a plurality in New York.

Johnson’s ticket does have some background with New York’s election system. His running mate, William Weld, campaigned for the Republican gubernatorial nomination against Eliot Spitzer in 2006. However, Weld dropped out a few days after criticizing the “insider game” of the state’s nominating conventions.

Neither the Johnson campaign nor officials from the Libertarian Party returned requests for comment on Thursday afternoon.