With Ballot Access Lawsuits, Businessman Hopes to Roque the Vote

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With Ballot Access Lawsuits, Businessman Hopes to Roque the Vote

Businessman and perennial candidate Roque de la Fuente II has filed numerous lawsuits challenging several states’ procedures for appearing on the ballot. Some of those efforts, however, could be backfiring.

Roque de la Fuente is running for president and Congress. / Photo by Adriana Heldiz

As a businessman, Roque de la Fuente II often turned to the courts to gain an advantage, or to correct what he saw as injustices.

He was locked in one of the longest-running, most expensive lawsuits to ever face the city of San Diego over development of an Otay Mesa business park owned by De La Fuente. The impasse finally was resolved in 2015 with the city’s insurers agreeing to pay $25 million toward De La Fuente’s business park.

He also won a 2006 lawsuit against the Border Patrol that resulted in a payout of about $2.3 million. He accused the agency of putting sensors in the ground on his property without his permission.

So it makes sense that as de la Fuente has pivoted to politics, he’s filed numerous lawsuits seeking to secure access to the ballot.

He estimates he spent more than $10 million in 2016 on his campaigns and related legal battles.

“It’s a lot,” said de la Fuente, who’s one of the largest private landowners along the U.S.-Mexico border. “But I can afford it.”

In fact, de la Fuente, a so-called “perennial” or “serial” candidate who’s run for roughly 14 different offices over the last four years – many of them simultaneously – contends that his campaigns and the subsequent lawsuits they’ve generated have become a sort of chicken-and-egg situation: The more he runs, the more he says he discovers obstacles to appearing on the ballot. That prompts him to enter even more races in order to challenge ballot access procedures he argues keep most people from participating in politics.

Some of these efforts, however, seem to be backfiring: In losing a number of challenges, de la Fuente is actually helping set court precedents that could keep him and other candidates off the ballot.

‘If You Don’t Have Ballot Access, You Don’t Have Nothing’

In the lobby of his office, de la Fuente has framed photos of him with recent U.S. presidents – Ronald Reagan, George Bush, Bill Clinton, George W. Bush, Barack Obama.

When I ask him if he has a photo with the current president, Donald Trump, de la Fuente responds, “Who’s that?”

But de la Fuente has more in common with Trump than he might care to admit. Both made millions by jumping into the family business. In the 1980s, de la Fuente took over his family’s businesses, which included car dealerships and other business interests on the swath of Otay Mesa land he owns. It paid off. He’s made millions from his properties on the border.

And in 2016, both jumped into national politics.

De la Fuente said he remembers seeing Trump campaign on television. He said he knew he’d win the election and that it would be terrible for the country and the whole world. He said he also felt that the Democratic frontrunner, Hillary Clinton, wouldn’t stand a chance.

“I saw the writing on the wall,” de la Fuente said. “I knew he would attack minorities. I predicted World War III.”

He decided to jump in the race, as a Democrat and then as a member of the Reform Party and his self-created American Delta Party.

What de la Fuente didn’t expect were the challenges he’d face just getting his name on the ballot in many states.

“I basically learned that the whole ballot access was horrible,” de la Fuente said.

In Pennsylvania, he was blocked from running as an independent because he had lost in the Democratic primary – what’s known as a “sore loser” statute.

In Oklahoma, he found the number of signatures required to get on the ballot prohibitively high. No one has completed the Oklahoma independent presidential petition procedure since 1992.

In Georgia, de la Fuente submitted twice the amount of signatures needed, but didn’t qualify because of the state’s early deadline.

In Washington, he submitted the 1,000 signatures needed to qualify as an independent, but was kept off the ballot because he didn’t publish a notice in a newspaper least 10 days before gathering signatures.

“If you don’t have ballot access, you don’t have nothing,” de la Fuente said.

It’s not just the presidential contest that has drawn de la Fuente’s interest.

In 2016, he also ran for Senate in Florida. In 2017, he ran for mayor of New York City. In 2018, he ran for Senate in nine states. In 2020, he’s running for president again, this time as a Republican, and for Congress in California’s 21st District, centered in the San Joaquin Valley, where he’s running against his son.

With the exception of a few races, de la Fuente said his numerous candidacies are all to further his goal of increasing ballot access, both for himself and for other outside candidates in the future. He can only challenge specific issues as a candidate.

“He’s run for a lot of offices on purpose,” said Paul Rossi, an attorney who handles many of de la Fuente’s ballot access cases. “It’s to bring attention to the broken nature of the two-party system.”

He thought running as a Republican in 2020 would increase his chances of ending up on the ballot. That’s the party through which Trump, himself an outsider, was elected in 2016.

“I figured that Trump was given a fair shake in 2016 and was allowed to participate, and of course, won,” de la Fuente said.

But he was wrong. Some states, like Minnesota, won’t include any Republicans on the primary ballot besides Trump. Others won’t hold a Republican primary at all.

“There’s not going to be a primary in Arizona,” he said. “There’s not going to be a primary in Alaska. There’s not going to be a primary in Hawaii. There’s not going to be a primary in South Carolina … so you can now predict what’s going to happen in the GOP, and no one can beat him.”

Helping or Hurting

Rossi said he’s had around a 30 percent success rate with all the lawsuits filed on de la Fuente’s behalf.

“There are 50 states, each with their own rules, each one more complicated than before,” de la Fuente said. “It’s like playing 50 simultaneous chess games. And after winning some chess games, they change the rules.”

Rossi and de la Fuente estimate they’ve filed 15 to 20 lawsuits throughout the country, challenging rules that make it difficult for anyone who isn’t a mainstream candidate running under the banner of one of the two major parties.

They’ve won cases that have knocked down barriers, like the Washington newspaper notice issue.

The results overall have been mixed. Richard Winger, an advocate for ballot access issues, said that while he supports efforts to increase ballot access, the lost court battles concern him.

“He’s lost some battles that have set some bad precedents,” Winger said. “It’s a double-edged sword. When you lose a case, it’s a precedent and then when someone in the future files a lawsuit, the state government can say this has already been decided in the de la Fuente case. But when someone files a lawsuit, it at least brings attention to it.”

De la Fuente has likely filed the most ballot access lawsuits across the country since John Anderson in the 1980s, said Winger. Anderson was a Republican member of Congress for about two decades before running for president in 1980. After realizing Ronald Reagan would become the Republican nominee for president, he switched to running as an independent. Anderson sued five states after missing the filing deadline for independent candidates, and ended up on the ballot in all 50 states.

De la Fuente hasn’t had the same luck and did not end up on every state’s ballot in 2016.

“He’s filed an awful lot of lawsuits,” Winger said. “Some of them were very strong lawsuits and I’m afraid that the judges are prejudiced against him because they think he’s a silly person. They are supposed to think about the law, not what they think about the plaintiff.”

Indeed, de la Fuente has had a quirky approach to campaigning at times, like this 2016 ad where he dives into a pool in a full suit.

“Sir, when you take a look at the field … there are the ones trying to ride the elephant and the ones trying to ride the donkey,” de la Fuente said in a 2015 interview with NBC 7.  “When I was in Santorini, I took a ride on a donkey, and I liked it.”

One of his opponents, Hillary Clinton, “should be at home taking care of her husband,” he said on TV that day.

The fact that he’s run for so many offices may have also impacted how seriously judges take him as a candidate. He’s even running for Congress against his son and another one of his sons is running for president as a Democrat.

But Oliver Hall, who has for years been filing ballot access litigation on behalf of independent candidates and third parties, said he doesn’t think that judges’ perceptions of candidates should come into play in pointing out legitimate issues, which he thinks de le Fuente has.

“Courts use terms, like ‘frivolous candidates,’ which are disparaging,” Hall said. “What we need in this country is more participation in the process. A healthy democracy requires avenues for dissent. It requires the political process to allow voters to support agendas that may not be represented by one or the other major party. Independent candidates and minor party candidates are disadvantaged the entire way. And it shouldn’t make any difference whether the plaintiff candidate is someone they view as important.”

It’s often not even rational for candidates to spend millions of dollars trying to get on a presidential ballot as an independent when the rules are so stacked against them. Democrat and Republican candidates are guaranteed places on the general election ballot. Their primaries are funded by taxpayers. Those party leaders make all the rules, Hall said.

And sometimes the rules may seem reasonable on paper, Hall said, but are incredibly onerous in practice.

Hall gave the example of Texas, which he is currently suing. Texas requires independent candidates to get the signature of 1 percent of total votes cast for all candidates in the previous presidential election. That seems reasonable, Hall said, except that in Texas that requirement translates to more than 89,000 signatures. Texas has other restrictions around independent candidates’ petitions, like time limits and rules that prevent people who voted in primaries from signing petitions. Then there are the regular issues with verifying signatures, like legibility and having addresses on the petition match voter registration information, which require candidates to get even more signatures than required as a buffer.

If you take into account what you need to pay signature gatherers, Hall said, it could cost around $500,000 just to get your petition together in Texas.

“These requirements may seem reasonable on paper, but when it comes to actually complying with them, it’s a whole different story,” Hall said.

One of de la Fuente’s more devastating losses, according to Winger, happened in California. In 2016, the state required independent candidates to collect nearly 180,000 signatures to appear on the presidential ballot, or 1 percent of the registered voters. In 2020, that number has risen to roughly 196,000 signatures.

It would take millions of dollars to make that happen. And that’s just one state out of 50, Hall said. It’s not unreasonable that a candidate might not invest all that money before trying to challenge the rules in court.

No independent presidential candidate has qualified for the California ballot since 1992, Winger said. That exemplifies just how unreasonable the requirements are.

De la Fuente lost the case challenging the signature requirement. The 9th U.S. Circuit of Appeals upheld the decision in July, insisting that the state had the right to prevent an over-crowded ballot.

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