Legislative Tyranny – Part One

Attempted Elimination of Political 3rd parties

Our governor and the New York State legislature have changed Election Law in an effort to eliminate the Political Third Parties. The have raised the bar for all Independent Nominating Bodies to be recognized as official NYS Political Parties. An Independent Nominating Body (INB) is what upstart political organizations that run candidates for public office are referred to before they achieve the milestones needed to be recognized as an official NYS Political Party.

In the past, the requirement for an INB to be recognized as an official NYS Political Party was to collect 15,000 good signatures on their gubernatorial petitions and then have that candidate receive 50,000 votes or more in the gubernatorial election. The benefit of being officially recognized as a political party is that recognized political parties need to collect 1/3, often much fewer, the number of signatures that an INB needs.

It took 47 years to accomplish, but in 2018 the Libertarian Party of New York (LPNY) was finally able to meet the requirements and it became an officially recognized NYS Political Party. Collecting 15,000 signatures from strangers was doable all those years and since 1972 the LPNY only failed to have a gubernatorial candidate once. Collecting the signatures was doable because for the INBs the petitioning process occurred during July and August. In those months there were plenty of large public gatherings such as fairs, festivals, and parades. Unfortunately, many signatures collected at those events were not ‘good’ signatures because names, addresses, and towns were incorrect, illegible, or the person was not registered to vote, or one of the numerous other disqualifying technicalities existed. For this reason, at the cost of tens of thousands of dollars, volunteers and paid petitioners collected double the required number of signatures to ensure the party’s gubernatorial candidate’s petition was challenge proof.

Two major changes in Election Law have occurred since 2018 that has made this task nearly impossible to accomplish today.

The first change in Election Law occurred early in 2019. In order to comply with the Congressional “Military and Overseas Voter Empowerment (MOVE) Act” the NY Primary election was moved from September to June. That resulted in the need to change the petitioning period from July and August to February and March. In February and March, there are no large public gatherings. That means a door-to-door campaign is now needed to collect the required 15,000 signatures. This is a daunting task in light of the fact that only one in roughly ten individuals approached at public events were willing to sign a petition for a 3rd party. It is conceivable an even larger percentage of individuals would not only be not willing to sign, it is anticipated that a significant number would consider the effort an unwelcome intrusion and would act accordingly.

The second change in Election Law happened early this year. The changes are depicted in the following table. The governor, with the blessings of the NYS Legislature, changed Election Law by placing legislation into the budget setting a much higher petition signature requirement for INBs. They raised the petition signature requirement from 15,000 signatures to 45,000 signatures or 1% of the number of votes cast for Governor in the previous election, whichever is less (in 2018, 6,219,402 votes were cast).

To make it even more difficult for the INB to become recognized they raised the number of votes required from 50,000 votes for the gubernatorial candidate to 130,000 votes or 2% of the votes cast for governor – whichever is greater (using 2018 numbers, 2% is 124,804 signatures), All the recognized Political 3rd Parties now need to obtain 130,000 gubernatorial votes in order to remain a recognized Political Party. Then, just to ensure the bar was high enough to cause 3rd parties to disappear, they shortened the period of recognition from 4 years to 2 years, requiring 130,000 votes be cast for the party’s gubernatorial candidate one year, and 130,000 votes for the party’s presidential candidate two years later. Failure to attain these goals will cause the party to immediately lose their status as an official Political Party.

The table shows the changes to Election Law that have been implemented

With the combination of these requirements in place, you can be pretty much insured that no INB will ever successfully run a gubernatorial or presidential candidate in the future. The two changes are equivalent to a death sentence for INBs and most political 3rd parties.

The reason for the increased requirements will become clear in Part Two. But, regardless of their motives, the Democrats and Republicans have twice now used clearly unconstitutional procedures to implement their new standard.

First attempt: On their first attempt the Democratic and Republican Majority and Minority Leaders of the NY Senate and Assembly, along with the Governor, created the Public Campaign Financing and Election Commission (PCFEC)comprised of two Republicans and seven Democrats. It was empowered to make recommendations that, in the absence of legislation to the contrary, would become law. The only way for the NYS Legislators to stop the Commission’s recommendations from becoming law was to have both the NY Senate and the NY Assembly pass a bill changing or negating those recommendations and have the NY Governor sign that bill – all within a short time period.

On December 1, 2019, the PCFEC Commission issued a report. It contained the recommended changes to Election Law cited in the above table. It also created a self-serving campaign fund to finance the campaigns of only the four statewide candidates [Governor, Lt Governor, Comptroller, and Attorney General], and the NYS Senate and Assembly candidates. Funding of the many local, county, Congressional, and US Senate candidate campaigns were not included.

The commission’s recommendations became law on December 22, 2019, because the NYS Legislature was not in session during that time period. Consequently, the legislators failed to even consider the desirability of adopting or stopping the recommendations from becoming law.

Two political third parties stepped forward to challenge, in the NYS Supreme Court in Niagara County, the constitutionality of the Public Campaign Finance and Election Commission’s newly enacted Election Law (1).

The Supreme Court ruled that the legislative process used to create the Election Law changes was unconstitutional. Thus the changes to Election Law were rescinded. The Democrats, Republicans, and Governor were not deterred. The Supreme Court ruling was only a temporary setback.

Second Attempt: The Democrats, Republicans, and Governor quickly moved on and utilized the budget back-door, three-men-in-a-room, deal-making process. This unconstitutional procedure has been used many times over many years to create and change laws (statutes) without legislation. With the Democrat and Republican Legislator’s approval, the entire PCFEC’s recommendation was slid into the Governor’s Executive Budget for 2020-21 as Part ZZZ.

Not one section of the Part ZZZ calls for the appropriation of funds. Part ZZZ was inserted to change and to create an Election Law statute. Part ZZZ is not a proper item for any budget.

The two actions on the part of the governor and the legislature are unconstitutional and nothing less than tyrannical acts intended to suppress and eliminate political 3rd parties. What makes part ZZZ even more tyrannical is the inclusion of larcenous embezzlement of public funds for the purpose of creating a publicly funded campaign fund for the statewide candidates and the NYS Senate and Assembly candidates – but no one else.

The reason for considering the methods of implementation that they chose was that neither method required public accountability on the part of legislators. The Election Law would be changed without the legislators needing to openly support or oppose these highly controversial and unconstitutional acts – acts that can be labeled as nothing less than acts of tyranny.

Part ZZZ of the NYS 2020-21 budget changed Election Law despite the fact that it has been long established as a doctrine of legislative equivalency by the courts (5), that a legislative act of equal dignity and import is required to repeal or modify a statute: A duly passed statute is required to modify another duly passed statute. The placement of legislation that changes a statute into a budget is not only unconstitutional, it is inconsistent with established principles of legislation.

I encourage the current leaders in the Libertarian Party and other 3rd Parties to make it a priority to file a legal challenge to the 2020-21 budget bill as unconstitutional. There are blatant US Constitutional violations of the First Amendment and Fourteenth Amendment as well as black and white, clear violations of the NYS Constitution (6). It is my understanding that an alliance of the political third parties is being formed and a legal suit in the US or NYS Supreme Court will soon be filed.

The members of INBs and political 3rd parties are clearly nothing but just minority groups in the district, but they are also the groups that will be directly harmed by this new Election Law. The Libertarian Party is one of those minority groups, but not once were we given the courtesy of being consulted on this matter. But then, was did you expect? My opponent’s political party was one of the two political parties this new Election Law was intended to benefit.

I am personally dismayed that, by remaining silent in both unconstitutional attempts, my opponent supported these tyrannical acts. He failed in his duty to defend our state constitution. The practice of using commissions to legislate is an abrogation of the power and responsibility of the State’s legislators to legislate. By remaining silent, by not opposing the enactment of the commission’s recommendation as law, my opponent shirked his duty and responsibility as a legislator, thus supporting the transfer of the power to legislate to commissions. My opponent’s inaction on these current unconstitutional acts can only be viewed as either deliberate support for this tyrannical law on his part, or a reflection of a total disregard on his part for how this new Election Law will seriously and adversely impact the INBs and political 3rd parties if not rescinded. Were his acquiescence and his reluctance to stand up against this new Election Law related to the benefits he and his party stood to gain?

This November, vote Libertarian. Let’s end Legislative Tyranny. Let’s reset the path our country is on to a path toward true liberty. As your Assemblyman, I will never quietly stand by as your liberties are taken from you in this way.

Mark Glogowski

Libertarian Candidate for Assembly District 139

(1) https://buffalonews.com/2019/12/13/fate-of-fusion-voting-at-stake-as-minor-parties-press-court-case-in-niagara-county/

(2) https://legislation.nysenate.gov/pdf/bills/2019/s7508b

(3) http://www.judgewatch.org/web-pages/searching-nys/2020-legislative/third-parties-good-news.htm Note: page down to item 13

(4) For more information check out other postings at the Center for Judicial Accountability. http://www.judgewatch.org/

(5) Judge Boniello cited Moran v LaGuardia, 270 NY 450 [1936], regarding the changing of a statute that, “ Nothing less than another statute will suffice” ’

(6) Article III §1, and Article VII §§1-7, as well as Senate Rule VI §§1, 6, and 7 and Assembly Rule III §2(d), §2(e), and §2(g).