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1976 election offers lessons for 2016

Presidential candidates Donald Trump, Texas Sen. Ted Cruz,

Presidential candidates Donald Trump, Texas Sen. Ted Cruz, Ohio Gov. John Kasich, Vermont Sen. Bernie Sanders and Hillary Clinton. Credit: Wires

Some of our presidents were elected because independent candidates took votes from major party candidates in key states. If a candidate can’t or doesn’t want to run on the Republican or Democratic party lines, he or she can still run for president and potentially spoil things for one of the major party candidates. Not that Sen. Bernie Sanders would do that to former Secretary of State Hillary Clinton, but he could.

Each state provides a method for a candidate to have his or her name on the presidential ballot. It is a cumbersome and Herculean task in some states. But if Sanders wanted to play spoiler, he could have his name placed on enough ballots to make a difference in the general election. For example, if he garnered 30,000 signatures in Michigan (by July 21) and far fewer signatures in Wisconsin and Massachusetts (by Aug. 2), he could be on the ballots in those states. His being on those ballots could cost those states for Clinton.

In New York State, he would have until Aug. 23 to file a petition with 15,000 signatures — in order to be on the Nov. 8 presidential ballot in our state.

There was a time when New York’s requirements were more demanding. In 1976, Jimmy Carter and Gerald Ford struggled for the presidency. It was apparent that New York’s 41 electoral college votes then would be crucial. New Yorkers were not enamored of either candidate, and the independent candidacy of Eugene McCarthy presented a threat to Carter. The polls showed that if McCarthy ran in New York, he would siphon sufficient votes from Carter to throw the state’s 41 electoral votes to Ford.

To be on the November ballot in New York in 1976, an independent candidate was required to file petitions signed by at least 20,000 voters, 100 of whom had to reside in each of one-half of the congressional districts of the state. The McCarthy volunteers went to the streets, set up tables at shopping centers and rode the subways — petitions in hand — to garner the signatures.

When the deadline for filing came, they had nearly 500,000 signatures — far more, they thought, than the 20,000 required by law. But New York State law required that the petitions be “separated into volumes according to congressional district.” The McCarthy minions said that was impossible given the random method of signature gathering that volunteers, as opposed to organized party ward workers, would have to employ.

The lower courts allowed for the McCarthy candidacy. However, when I was a member of the state Court of Appeals, we reversed the decision and held that strict compliance with state law was essential. The McCarthy petitions were not separately bound by congressional districts and were disallowed. He could not run in New York.

Carter carried New York State by more than 285,000 votes. Had McCarthy been on the ballot, he probably would have drawn sufficient votes from Carter to enable Ford to carry the state and its 41 Electoral College votes. That would have given Ford 281 electoral votes against Carter’s 256 — and the presidency.

This year’s presidential election, apparently between Clinton and Donald Trump, will call on voters to make a vital choice. The process to that choice should not be distorted by third- party candidates playing the role of spoiler.

Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.