Unfavorable opinions among voters of both Donald Trump and Hillary Clinton — the presumptive presidential candidates of the Republican and Democratic parties, respectively — create a do-or-die moment for Libertarians and the Green Party.

But the question is how high can they climb?

In California, probably not very high. But nationally, there’s a great opportunity to get a candidate’s name, party and message out there if they can reach 15 percent in the polls to make it to a debate. From there, ballot access is the main challenge.

The two main third-party candidates are Libertarian Gary Johnson, a former two-term governor of New Mexico, and Jill Stein, a Massachusetts physician and activist whose highest-held elected office was local, who will likely be the Green Party candidate.

Both were their parties’ nominees in 2012, but failed to gain any significant traction — Johnson won almost 1 percent of the popular vote and Stein won one-third of 1 percent. Neither won any states, which is still the biggest challenge for any third-party candidate (Johnson got 3.5 percent in New Mexico and outperformed Stein in Massachusetts). 

So why now?

It’s an open seat, so there won’t be a popular incumbent president, like Barack Obama was in 2012, to contend with.

Also, Americans widely dislike the two (presumptive) major party candidates outside of their core groups of supporters. According to the Real Clear Politics average, 61 percent of Americans see Trump — a Republican business and reality T.V. tycoon — unfavorably, while Clinton — the former first lady, former senator and former secretary of state — fares only slightly better at 55.5 percent unfavorable. “We have never had an election in which both major candidates were so unpopular — many people want to vote against Trump or Clinton without voting for the other,” said John J. Pitney, Jr., a Roy P. Crocker professor of politics at Claremont McKenna College. “The third party option gives them the chance to register their disapproval without giving support to a candidate that they also despise.”

More than an emotional victory

The immediate goals for Libertarians in 2016 are securing ballot access in states and appearing on stage at the debates. Being on the debate stage alongside major party candidates would greatly affect how Americans see a third-party candidate — a victory in itself.

“But of course, you want to win,” said Janine Kloss, the executive director of both the Sacramento County Libertarian Party and the state party.

Kloss — who is awaiting the results of her write-in campaign for a Sacramento-area Assembly seat where a Democrat ran unopposed — noted that this election has proven anything can happen.

“We have someone under FBI investigation and someone who woke up one morning and decided he wanted to be president,” Kloss said.

Third-party candidates of yore

To gain traction, third party candidates usually need a major party candidate to fall apart. In 2006, Joe Lieberman lost the Democratic nomination in his Senate re-election campaign, but won the general as an independent because the Republican candidate collapsed. Bernie Sanders won his two Senate races in Vermont running as an independent because there was no Democratic challenger.

Jesse “The Body” Ventura was an exception to the trend. In 1998, the former pro wrestler beat two relatively strong candidates from the major parties by a narrow margin, winning the Minnesota governorship with 37 percent of the vote.

“They can be factors in a race, but winning is a different story and threshold,” said Nathan L. Gonzales, publisher and editor of The Rothenberg & Gonzales Political Report. “Our country is polarized and primed for the two major parties.”

Spoiler Alert

Often, strong third-party runs play a spoiler role for candidates, as Republicans were worried Trump would do earlier this cycle when they asked him to sign a loyalty pledge. In 1912, Bull Moose Party candidate Teddy Roosevelt stole (a lot) of votes from Republican Howard Taft, paving the way for Democrat Woodrow Wilson to become president.

Prominent segregationist George Wallace — the southern Democratic governor of Alabama who in 1968 ran as an American Independent — took a substantial amount of Electoral College votes from Hubert Humphrey in 1968 to help Richard M. Nixon become president.

Nixon actually had enough electoral votes to beat Humphrey without Wallace’s help, but Wallace still played a prominent role. And in a it’s-a-small-world way, Humphrey’s son was the Democratic-Farm-Labor candidate who lost the gubernatorial race to Ventura in Minnesota.

And Ross Perot, a Texas business man who ran twice as an independent, largely helped Bill Clinton, a Democrat, win the presidency from Republican George H.W. Bush in 1992 and then retain the presidency in 1996 against Republican Bob Dole.
In those races, Roosevelt received 27.4 percent of the popular vote, Wallace received 13.5 percent, and Perot received 18.9 percent and 8.4 percent. Roosevelt and Wallace won several states a piece, Perot won none.

“If more states allocated their Electoral College votes on some sort of proportional grounds, something Perot pushed for, then a third party ticket would be plausible,” said Mark Petracca, chair of the Department of Political Science at UC Irvine. “Right now only Maine and Nebraska have such an allocation scheme.”

By Joseph Perkins

I was a White House staff member when George H.W. Bush was in the Oval Office. I remember well when he signed the Americans With Disabilities Act into law, insisting that it would not “lead endlessly to litigation.”

Not in his wildest nightmares did Bush envision a serial litigant like Alfredo Garcia. The illegal immigrant (no, he’s not even a U.S. citizen) has filed more than 600 lawsuits against mostly mom and pop businesses in Southern California claiming ADA violations.

A convicted felon, Garcia hasn’t had a proper job in years. Nevertheless, he has made a pretty good living for himself shaking down small businesses, many of which happen to be owned by immigrants just like him (except that they are not professional plaintiffs).

Indeed, Garcia has testified in court that he usually makes about $4,000 a case. In 2008, that added up to $125,000 in legal settlements, according to an investigative report that aired last week on KABC-TV in Los Angeles.

Yet Garcia has claimed under oath that he made only $16,500 in settlements in 2008. He low-balled his earnings so that he would qualify for fee waivers on his hundreds of ADA lawsuits.

Each case should have cost the serial litigant a $300 filing fee. But instead of paying nearly $195,000 for his more than 600 ADA lawsuits, Garcia got away with paying nothing by pleading poverty.

The trial lawyer behind the serial scammer

Of course, Garcia wouldn’t have been able to generate so many lawsuits, and wouldn’t have been able to obtain waivers on all them, without legal assistance. And that was provided by his long-time trial lawyer Morse Mehrban, who earns a 50 percent contingency fee on all of his client’s ADA litigation.

In fact, ADA litigation makes up three-quarters of Mehrban’s legal practice, he told KABC. So prolific is the trial lawyer that his firm accounted for 30 percent of ADA lawsuits filed in L.A. County in 2010.

Mehrban sees nothing wrong with shaking down small immigrant-owned dry cleaners or nail salons. “Isn’t every lawsuit technically extortion?” he told KABC.

Moreover, Mehrban thinks that Garcia and the other ADA clients (he represents a couple dozen at a time) are somehow performing a public service with their litigation.

“I’m actually encouraged by it,” he said, “because it shows that people are doing something. They are standing up for their rights.”

Well, the only “right” Mehrban’s clients are standing up for is the dubious right to file spurious ADA claims not for the purpose of fighting discrimination against the disabled –- which was the law’s original intent -– but to earn themselves money for nothing.

Finally, good news on shakedown suits

Gov. Jerry Brown last year enacted a measure, SB 1186, intended to rein in ADA shakedown suits and discourage serial litigants like Garcia. It reduced potential damages to as little as $1,000 from the previous minimum of $4,000, but it posed no real deterrent to ADA plaintiffs.

The real game changer was not a piece of legislation but a California Supreme Court ruling this past December in which the justices held, for the first time, that plaintiffs who lose ADA lawsuits are liable for the defendant’s attorney’s fees.

That court ruling scared the bejeebers out of even a serial litigant like Garcia — so much so that he has sworn off of filing any new ADA lawsuits.