NH: “preponderance of the evidence” that Sanders is a Democrat

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Democratic presidential candidate Sen. Bernie Sanders has long chosen to self-describe on the ballot and in Congress as an Independent. In spite of that, he has always caucused with the Democrats in the House and Senate, and has always endorsed the Democratic nominees for President. In exchange for this, the Democratic Party of Vermont has agreed since 1990 to not back any Democratic challengers to Sanders, even in years when a nominal Democratic candidate was on the ballot. In some years, Sanders has won the VT Democratic primary as a write-in, but declined to accept, leaving the party without a formal nominee in those elections.

Sanders’ idiosyncratic self-description of his partisan affiliation has caused some speculation that he would be denied ballot access for the Democratic primary in some states on the basis of not being a Democrat. In New Hampshire in particular, candidates must affirm that they are a “registered member” of the party, but Sanders, like roughly half of Americans, lives in a state that doesn’t have partisan voter registration.

Unsurprisingly, New Hampshire’s Ballot Law Commission has unanimously ruled that Sanders is a Democrat “on the preponderance of the evidence,” and can therefore appear on the Democratic primary ballot. Among the reasons cited, is that both the DNC and NH-Dems have firmly backed Sanders as a bona fide Democratic candidate, and in his FEC Declaration of Candidacy he listed his affiliation as “Democratic.”

However, Sanders continues to self-identify as an Independent, including on the official Senate registry, and in deference to this most media outlets still grant him the designation “Sen. Sanders (I-VT)” instead of “Sen. Sanders (D-VT)”

20 thoughts on “NH: “preponderance of the evidence” that Sanders is a Democrat

  1. Richard Winger

    New Hampshire officials don’t want to acknowledge that parties have a constitutional right to nominate non-members, so they do this elaborate charade to persuade themselves Sanders is a Democrat. The US Supreme Court said in Tashjian v Republican Party of Connecticut that parties have the freedom to nominate non-members if they wish. The Republican Party nominated a Democrat for vice-president in 1864. The Whig Party nominated a Democrat for vice-president in 1840. The Democratic Party nominated a Republican for president in 1872.

  2. jim

    I must be missing something here. I don’t doubt that the Democrats in Vermont can nominate whoever they want to be on the ballot. But it appears from this article that the Democrats are doing exactly that (“In exchange for this, the Democratic Party of Vermont has agreed since 1990 to not back any Democratic challengers to Sanders, even in years when a nominal Democratic candidate was on the ballot.”)

    I am not defending ballot access laws. However, it appears from this article that the state officialdom, is probably breaking its own laws, UNLESS Sanders has some qualifications to stay on the ballot, himself, without calling himself a ‘Democrat’. Could anybody just call himself a ‘Democrat’ and be on the ballot? Could anybody just call himself an ‘indepedent’ and be on the ballot?
    Is there some procedure Sanders must follow, like obtaining X signatures each time he runs, to get on the ballot. That might explain it.

  3. NewFederalist

    Perhaps the term “Democrat” includes “Social Democrat” which would certainly apply to Sen. Sanders.

  4. David

    Has Sanders joined the Democratic Party as a member? I can remember an elected Republican who also claimed to be a member of the LP and the CP at the same time.

  5. Andy Craig Post author

    “Is there some procedure Sanders must follow, like obtaining X signatures each time he runs, to get on the ballot. That might explain it.”

    Correct. In Vermont he needs 500 signatures to run as an Independent, which is a fairly low threshold. He’s easily done that.

    “Perhaps the term “Democrat” includes “Social Democrat” which would certainly apply to Sen. Sanders.”

    Partisan vs. ideological label; the latter isn’t capitalized and also isn’t a consideration the government can use.

  6. Andy Craig Post author

    Neither the national Democratic Party nor the GOP have any formal membership as such, in the way the Libertarian Party does. There are no dues to pay, there is no official single list of who’s on the rolls as being a Democrat. There are of course various classes of donors and supporters, and then there are registered voters in the states that have partisan registration, and maybe state party membership in some of the states that don’t, but none of those are really akin to a general national-party membership. For officeholders, you can also refer to their ballot label at the past election, but of course officeholders can and do switch parties in the middle of their terms, and the ballot access process has to encompass candidates who’ve never held office before.

    Aside from his public self-description, it isn’t really obvious how Sanders could formally become a Democrat even if he wanted to, which is part of why the noise that NH might deny him ballot access was so ill-informed. He can’t register as one in Vermont, so really he can no more “prove” he’s a Democrat than many other candidates who also live in states with no partisan registration. He can call himself whatever he wants. If Vermin Supreme can appear on the NH primary ballot (switching parties every four years), alongside dozens of other lesser-known and joke candidates whom NH encourages to file so it can collect their $1000 filing fee, then there was never really any risk of them denying Sanders.

    @Richard Winger is right, this whole charade was mostly so NH didn’t have to admit its poorly-drafted and unenforceable law is unconstitutional. However, I don’t think they really care about defending the policy as such, and I wouldn’t be surprised if Bill Gardner recommends the NH legislature simply drop that provision between now and 2020 so that this doesn’t come up again.

  7. georgephillies

    There are several alternatives here.

    The complaintant might simply not have liked Sanders.

    The complaintant might have been a Clinton supporter, who did not work out that if he had succeeded he would potentially have wrecked Clinton’s chances of being elected. If Clinton has half the party, Sanders has a third, and taking Sanders off the ballot might have had the result that the difference between them became impossible to bridge, especially if the Green party talked Sanders into taking their nomination in states where he could.

    One might credit the Greens with having the sense that the Libertarian Party lacked, and not taken a chance on nominating a potentially ineligible candidate in states where they might be knocked off the ballot. It is, after all, reasonably well known that the LNC was warned adequately in advance about potential problems with Johnson.

    The complaintant might have been talked or persuaded or whatever into making the complaint by Republicans who saw here a path that had a shot at blowing up the enemy party.

    The complaintant might have been one of these folks with whom the Libertarian party is overrun, people who find a law they can read or misread and refuse to understand the law’s context.

    The complaintant might have been seen an opportunity for publicity.

    And. of course, the complaintant might have sincerely believed that he was right, and to the Devil with the consequences “Let Justice Be Done, Though the Heavens Fall”.

  8. georgephillies

    Also, New Hampshire followed its law, and obtained the sane result, meaning that no one appears to have standing to complain.

    On the other hand, if Cruz had filed for the Democratic primary — Goddess only knows why — he might have been blocked.

  9. Andy Craig Post author

    From the linked article at The Nation:

    “A New Hampshire conservative who is well-known for his harsh criticisms of President Obama, Andy Martin, argued that Sanders’s self-identification on his US Senate’s website as an independent made him ineligible to declare himself a Democrat in New Hampshire.”

    More on Mr. Martin and his challenge, straight from the horse’s mouth, at WMUR:

    http://www.wmur.com/politics/andy-martin-challenges-eligibility-of-bernie-sanders/36409512

  10. David

    A member is someone who paid dues to a membership organization. Or in the case of the LP has at least signed the pledge.

  11. Darryl W. Perry

    In NH voters who are “undeclared” (i.e. not R or D) can file as candidates for either party, and it’s up to the party to challenge the designation. In this case, the D’s are welcoming the undeclared voter.

  12. Andy Craig Post author

    “”In NH voters who are “undeclared” (i.e. not R or D) can file as candidates for either party, and it’s up to the party to challenge the designation. In this case, the D’s are welcoming the undeclared voter.””

    Sanders isn’t a NH voter, he’s a Vermont voter, where they are all ‘undeclared.’

    The NH law is not only arguably unconstitutional, it’s simply flat-out impossible as applied to a national election. Ted Cruz isn’t a “registered Republican” either, because there is no such thing in Texas. And I really doubt it could be interpreted and applied in such way that candidates living in partisan-registration states can’t be challenged, but candidates from states like VT and TX can be and there’s nothing they can do about it.

  13. Richard Winger

    Gary Johnson’s name was on the ballot in 2012 in eight Republican presidential primaries, and only Michigan blocked him. And even Michigan admitted he could have qualified if he had been an independent candidate. The only reason we lost the Gary Johnson lawsuit against Michigan in 2012 was that we filed the case too late, and made the federal judges angry with us. The 6th circuit opinion had one sentence about the merits, but went on and on about how late we were to file.

  14. georgephillies

    If filing had been made as an independent, the issue would have been avoided perhaps. But that wasn’t how the filing was done, was it now? And if the suit was filed late, well, that is a standard avoidable legal error. However, once the court found the suit was late, they didn’t need to deal with anything else.

    We took a chance on using Johnson as the candidate, and as a result we missed ballot access. If only if only misses the ke point…we took this chance, and as a result we missed ballot access.

  15. NewFederalist

    “What did the Republican think, as opposed to say, he was going to accomplish?”

    How could anyone know that but him? They were his thoughts.

  16. Andy Craig Post author

    “We took a chance on using Johnson as the candidate, and as a result we missed ballot access.”

    Even granting the dubious implication that some other candidate like Wrights would have been on 49 ballots instead of 48 (or fewer), this is a ridiculous argument. As Richard will tell you, prior to 2012 no sore-loser law had been successfully enforced on presidential candidates, and there was a wide consensus and ample precedents that such laws were unconstitutional and unenforceable. There’s also a solid argument that even if they are generally constitutional, they are not applicable to presidential races (where the actual officials being ‘elected’ are delegates in primaries and electors in the general). Had we got a decision on the merits in MI, we would have won.

    Had Michigan not rejected (by an alleged matter of minutes) Johnson’s attempt to be removed from the primary ballot, it wouldn’t have been an issue. In hindsight there are things that could have been done to avoid the loss of MI (as there always are), but at the end of the day we lost MI because MI election officials willfully broke the law and violated the Constitution out of partisan political motives. The real reason we weren’t on the ballot in MI, is because MI had a Republican Secretary of State who was more successful in her law-breaking than her peers in other states.

    To say that losing ballot-access to sore-loser-laws was predictable in 2012, is playing fast and loose with what was actually known at the time. This is the weakest of many weak arguments as to why we supposedly shouldn’t have nominated Johnson in 2012.

  17. Gene Berkman

    Even with Gary Johnson kicked off the Michigan ballot, he received more votes than any previous Libertarian candidate for President – 2.5 times as many votes as the 2008 candidate and 3 times as many votes as the 2004 candidate. Does anyone really think that Lee Wrights or George Phillies would have received anywhere near 1 million votes?

    Also, Gary Johnson was on more ballots than Jill Stein in 2012, and he received nearly 8,000 write-in votes in Michigan. It is pretty clear that no other candidate for the Libertarian nomination in 2012 was likely to have as successful a campaign as Gary Johnson had.

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