| This issue was originally printed on white paper. |
On September 9, the Third Circuit ruled that the First Amendment protects the right of two political parties to jointly run the same candidate. Patriot Party of Allegheny County v Allegheny County Department of Elections, 95-3385. The decision was written by Judge Jane Roth, a Bush appointee, and co-signed by Judge Max Rosenn, a Nixon appointee. Judge Morton Greenberg, a Reagan appointee, dissented.
The decision was a surprise, since the court could have settled the case on narrower grounds. The plaintiff, running for a School Board seat, had been nominated jointly by the Democratic and Patriot Parties. Pennsylvania law permits joint nomination for School Board, but only for parties with at registration membership of at least 15% of the state total (i.e., Republicans and Democrats). Other qualified parties cannot "fuse".
The 3rd circuit could have said that since the state permits Republicans and Democrats to jointly run the same candidate, it must extend this opportunity to all qualified parties. However, the 3rd circuit went further, and therefore fusion is now possible for all office in Pennsylvania (at least between major and minor parties), not just School Board; and it is now possible in the other states in the 3rd circuit, New Jersey and Delaware.
Pennsylvania asked for a rehearing on September 23; the request is still pending.
Judge Greenberg's dissent says, "I believe that the majority opinion carries implications which could bring about fundamental changes in the election processes in Pennsylvania and the other jurisdictions in this circuit by judicial decision. We ought not to lay the foundation for such a development. If such changes are to come, let the legislatures bring them about."
The U.S. Supreme Court will hear oral arguments in the Minnesota fusion case, McKenna v Twin Cities Area New Party, on the morning of December 4.
On September 23, before U.S. District Court Judge Joseph Anderson, the South Carolina Election Commission acknowledged that the Natural Law Party deserves to be on the ballot this year. The judge was then left with nothing to decide, so instead of listening to argument, he took a few minutes in open court to ask the party's attorney what the party stands for.
The issue was whether a new party must hold organizing conventions, before it has qualified for the ballot, or whether it can hold those meetings after it gets on the ballot. The state had originally told the party that even though it handed in enough valid signatures by the May petition deadline, it could not be on the ballot because it hadn't held meetings in March and April. Natural Law Party of South Carolina v Depass, no. 3:96-2301-17. If the state's theory had been upheld, it would have made it virtually impossible for a new party to be created in the middle of an election year, and then to participate in that year's elections.
On October 11, New York Governor George Pataki finally signed SB 7856a, the ballot access reform bill which had been passed back on July 10. From now on, petitioners in New York no longer need to place precinct numbers or legislative district numbers next to the name of all petition signers. The bill makes other improvements as well, so that in the future, tiny errors will not be the basis for disqualifying petitions.
On September 9, federal Judge Robert Hinkle, a Clinton appointee, construed Florida law to mean that presidential substitution is permitted. Therefore, the Libertarian Party was permitted to substitute Harry Browne in place of the stand-in candidate who had been listed on the Libertarian petition. Libertarian Party of Florida v Mortham, 96-cv-258-RLH.
The Libertarian Party had begun petitioning in Florida before it knew who its presidential candidate would be. As a result of this decision, third parties in the future will enjoy the flexibility to choose their presidential candidates in the summer of presidential election years, and still be on the ballot in all states. Florida had been the chief impediment to such flexibility in the past.
On September 18, U.S. District Court Judge David Russell, a Reagan appointee, refused to order John Hagelin onto the Oklahoma ballot as an independent presidential candidate. Natural Law Party v Henley, no. civ-96-1525-R.
Oklahoma lets any independent candidate on the November ballot, just by paying a filing fee; except that independent presidential candidates cannot use this option. Judge Russell said "Oklahoma may well have chosen to actively encourage the number of candidates for state and congressional offices on the ballot without in any fashion abandoning its interest in having as candidates on the ballot in presidential elections, only viable candidates who have demonstrated a modicum of support." This directly contradicts the U.S. Supreme Court in Anderson v Celebrezze, which said that states have a diminished interest in keeping presidential candidates off the ballot, versus candidates for other office.
As was widely reported on September 18, the Commission on Presidential Debates excluded all presidential candidates from the debates, except the Democratic and Republican nominees, on the grounds that only the Democratic and Republican nominees have a "realistic chance of winning".
The "realistic chance of winning" standard deviates sharply from normal debate rules in the U.S. The League of Women Voters, which sponsored all presidential debates before 1988, never used that standard; instead, the League invited every candidate who was at 15% in polls (including Independent John B. Anderson in the fall 1980 presidential debates). Also, Ross Perot was invited to debate in 1992 even though he was only at 7% in the polls at the time of the decision.
Also, debates sponsored by the League, as well as by state Democratic and Republican Parties, for the presidential primary season, never apply the "realistic chance of winning" standard. In 1988, no political commentator thought that Pat Robertson had a realistic chance of winning the Republican nomination; and none thought that Jesse Jackson had a realistic chance of winning the Democratic nomination. Yet Robertson and Jackson were always invited into presidential primary debates. In 1992, no one thought that Jerry Brown had a realistic chance of winning the Democratic nomination, but he was always invited to debate the other leading candidates for the Democratic nomination. This year, no political commentator thought Alan Keyes had a realistic chance of winning the Republican nomination, but he was invited into all Republican debates held in the first three months of the year.
Also, in general election debates for Governor and U.S. Senator in 1994, third party and independent candidates were invited to debate their major party opponents in 23 states, and (except for the Maine gubernatorial contest) no one thought any of the third party or independent candidates had a realistic chance to win.
The Commission on Presidential Debates hasn't explained why it uses such an untraditional standard. Ross Perot, John Hagelin, and Ralph Nader, all sued the Federal Election Commission to force it to enforce its own rule that federal candidate debates must use "objective criteria". Perot v F.E.C., numbers 96-5287 and 96-5288.
However, on October 4, the U.S. Court of Appeals, D.C. Circuit, ruled that the law is clear, and the F.E.C. must be permitted to enforce its own rules by its own slow timelines. Therefore, the Commission on Presidential Debates was free to go ahead, although the F.E.C. may yet rule (after the election!) that the Commission violated regulations when it excluded all but Clinton and Dole. Attempts are also being made to persuade the IRS to revoke the tax-exempt status of the Commission on Presidential Debates.
On September 16, U.S. District Court Judge Alexander Williams, a Clinton appointee, refused to order Libertarian congressional candidate Robert Creager onto the November ballot. Creager v State Admin. Board of Elections Laws., AW-96-2612.
Maryland is the only state in the nation with no third party or independent candidates on the ballot this year, for office other than president. The Maryland petition requirements for third party candidates (for office other than president) are so severe, that only one third party candidate has appeared on the ballot, with the party label, in the entire 25-year history of the law. The Maryland Libertarian Party is a qualified party, yet under state law, would have needed about 9,000 valid signatures to place Creager on the ballot, whereas Republican and Democratic candidates need no petition whatever.
The party tried to persuade the judge that, at least for federal office, the Maryland law represents a "qualification", not a "procedure", and therefore is unconstitutional under the U.S. Supreme Court term limits law. However, the judge turned down the party without even explaining the basis for his decision.
On September 27, Judge Melvin Hughes of Richmond circuit court, refused to order the State Board of Elections to permit write-in votes for Ralph Nader for president. Green Party of Virginia v State Board of Elections, no. HH-950-1.
Article II, sec. 3 of the Virginia Constitution guarantees the right of voters to cast a write-in vote at general elections, and does not make any exceptions for president. Yet, the State Board of Elections locks the voting machine write-in levers for the office of president; and prints no write-in space on paper ballots for president.
Judge Hughes stated that this part of the Virginia Constitution violates the U.S. Constitution! Article II of the U.S. Constitution says "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of presidential electors". Of course, the Virginia legislature itself wrote and approved the State Constitution (Virginia has no initiative process), so in truth there is no conflict between the Virginia and U.S. Constitutions.
Judge Hughes also ruled that the case was filed too late; and he also said that since the true candidates in a presidential election are the elector candidates, write-ins are impossible.
Hughes ignored all the precedents on this issue. Everywhere else, when a state has permitted write-ins for office generally, but not for president, courts have ruled that presidential write-ins must also be permitted. These precedents are from the District of Columbia, Kansas and Michigan.
He also ignored the evidence which shows that 31 states provide that write-in presidential candidates must submit a slate of elector candidates, prior to the election, as a condition of having their write-ins counted; this solves the problem that the electors are the true candidates. In case the write-in candidate outpolls all other candidates in that state, then the slate of electors on file with elections officials become that state's electors.
The Green Party will appeal if it can raise the money to do so.
1. Arizona: there is still no decision in either ballot access case, one to get the U.S. Taxpayers Party on the ballot for president, and the other to get Ralph Nader on the ballot as an independent. The former is Indp. American Party v Hull, no. 96-16221 in the 9th circuit; the latter is Campbell v Hull, cv96-444-TC-RTT in U.S. District Court in Tucson.
2. Florida: On October 9, the State Supreme Court heard Libertarian Party v Smith, no. 87342, over the state's discriminatory filing fee system. Florida filing fees are huge (over $10,000 for Congress, for example). State law provides that if the candidate is a member of a party with more than 5% of the state registration, the government rebates back over half of the fee to that candidate's party. If the candidate is a member of a smaller party, the government keeps all of the money. Most of the Justices sat silently and asked no questions at all, so it is impossible to guess what the decision will be.
3. Georgia: On October 15, U.S. District Judge Clarence Cooper, a Clinton appointee, will hear Natural Law Party of Georgia v Massey, cv-1:96-2524-CC. This is the case over whether the Natural Law and U.S. Taxpayer Party petitions are invalid. He will rule from the bench that day. Web update Oct.17th: the judge hasn't ruled yet.
4. Illinois: (See also this update.) There will be a hearing in the 7th circuit on November 6 in Libertarian Party of Illinois v Rednour, 96-1561, over whether the U.S. Supreme Court term limits decision of last year has any implications for ballot access. The Libertarian Party has been a fully-qualified party in this state, yet still must submit petitions signed by 5% of the last vote cast, for Congress. The party argues that this is so severe, and so unnecessary for election administration, that the law is a disguised qualification, not just a procedure, and therefore is unconstitutional.
Parallel Libertarian lawsuits in state court, which attempted to get the party's candidates on the ballot for county office in various counties, have not won.
5. Kansas: Both qualified minor parties (Reform and Libertarian) recently won in state court, over minor errors in their certificates of nomination for various candidates for state legislature and Congress, and had these candidates put on the ballot. Gardiner v Thorn, 96cv-912, Brewer v Thornburg, 96cv-1008, and Mielke v Thornburg, 96cv-1007, Shawnee County District Court. The judge stated that elections officials should have solved the problem by asking the parties for clarification, not by keeping the candidates off the ballot.
6. Massachusetts: On September 11, a single Justice of the State Supreme Court, Justice Abrams, refused to order the U.S. Taxpayers Party on the ballot for president. The issue was whether the party had submitted enough valid signatures. Phillips v Sec. of State, 96-487.
7. Nebraska: (See also this update.) the Secretary of State is appealing the U.S. District Court decision of August 15, which struck down the state's ban on out-of-state petitioners. Bernbeck v Moore.
8. Ohio: On September 24, former Congressmen Clarence E. Miller filed an appeal with the U.S. Supreme Court, against Ohio's last reapportionment. Miller, a Republican, charges that his district was targeted for elimination by leaders of both major parties, and argues that reapportionment must be carried out in a less prejudicial manner. Miller v State of Ohio, no. 96-471.
9. Rhode Island: on September 30, the Cool Moose Party, the only qualified party in this state in the last half century, filed a lawsuit, arguing that it is unconstitutional for the state to force it to nominate by primary. It would rather nominate by convention. Cool Moose Party v State of Rhode Island, no. 96-514P. It was assigned to Judge Raymond Pettine, a Johnson appointee who has the best record on ballot access of any federal judge in New England.
10. West Virginia: on September 27, the Green Party filed a lawsuit against the state's mandatory $2,000 filing fee just to be a write-in candidate. State ex rel Reed v Hechler, no. 23788.
Publication Title: Ballot Access News. Publication No: 10436898. Filing Date: Oct. 9, 1996. Issue Frequency: Every 4 weeks. No. of issues published annually: 13. Annual subscription price: $9 2nd class, $10 first class. Complete address of office of publication: Bx 470296, San Francisco Ca 94147-0296. Complete mailing address of headquarters or general business offices of publisher: same. Full names and complete mailing address of Publisher, Editor and Managing Editor: Publisher Richard Winger, same. Editor: same. Managing Editor: same. Owner: same. Known bondholders, mortgagees and other security holders owning or holding 1 percent or more of total amount of bonds, mortgages or other securities: none. Issue date for circulation below: Sep. 9, 1996. Extent and nature of circulation: (First column is Average No. Copies Each Issue During Preceding 12 Months; Second column is Actual No. Copies of Single Issue Published Nearest to Filing Date):
| a. | Total No. Copies Run | 850 | 850 |
| b. | Paid and/or Requested Circulation | ||
| 1. Sales thru dealers & carriers | 0 | 0 | |
| 2. Paid or requested Mail Subscriptions | 803 | 833 | |
| c. | Total Paid and/or Requested Circulation | 803 | 833 |
| d. | Free Distribution by Mail | 17 | 0 |
| e. | Free Distribution Outside the Mail | 5 | 0 |
| f. | Total Free Distribution | 22 | 0 |
| g. | Total Distribution | 825 | 833 |
| h. | Copies Not Distributed | ||
| 1. Office use, left overs, spoiled | 25 | 17 | |
| 2. Return from News Agents | 0 | 0 | |
| i. | Total (sum of 15g, 15h(1) & (2)) | 850 | 850 |
| Percent Paid and/or requested Circulation | 94% | 98% | |
This Statement of Ownership will be printed in the Oct. 12, 1996 issue of this publication.
I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including multiple damages and civil penalties). Signature & Title of Editor, Publisher, Business Mgr, or Owner: Richard Winger, editor, 9 Oct., 1996. PS Form 3526 (Oct. 1994).
See this note about tables.
| Libt. | Nat. Law | Reform | US Taxp | indp. | Soc Wkr. | Green | other(1) | other(2) | |
|---|---|---|---|---|---|---|---|---|---|
| Alabama | X | X | w | ||||||
| Alaska | X | ||||||||
| Arkansas | |||||||||
| Colorado | X | ||||||||
| Delaware | X | X | |||||||
| Georgia | X | w | w | ||||||
| Idaho | X | 1 | |||||||
| Illinois | X | X | X | X | w | ||||
| Iowa | X | 2 | X | ||||||
| Kansas | X | X | |||||||
| Kentucky | X | X | X | ||||||
| Louisiana | 5 | ||||||||
| Maine | (X) | X | (X) | ||||||
| Massachusetts | w | X | w | ||||||
| Michigan | X | X | w | Soc. Eq. | Wkrs World | ||||
| Minnesota | X | X | X | 1 | X | Grassroots | |||
| Mississippi | Independence | ||||||||
| Montana | X | X | |||||||
| Nebraska | X | X | |||||||
| New Hampshire | X | ||||||||
| New Jersey | w | X | 3 | X | X | Conservative | |||
| New Mexico | X | X | |||||||
| North Carolina | X | X | w | ||||||
| Oklahoma | X | (X) | |||||||
| Oregon | X | X | X | X | Socialist | ||||
| Rhode Island | X | ||||||||
| South Carolina | X | X | X | ||||||
| South Dakota | |||||||||
| Tennessee | (X) | (X) | |||||||
| Texas | X | X | w | ||||||
| Virginia | w | ||||||||
| West Virginia | w | ||||||||
| Wyoming | X | X | |||||||
| TOTAL | 21 | 22 | 7 | 3 | 12 | 11 | 5 |
"X" means the party has a candidate on the ballot; "(X)" means the party label won't be printed; "w" is write-in candidate.
See this note about tables.
| Libt. | Nat Law | indp. | Reform | Soc Wkr | Grassrts | L Union | Indp Pty | Amer. | |
|---|---|---|---|---|---|---|---|---|---|
| Delaware | |||||||||
| Indiana | X | ||||||||
| Missouri | X | ||||||||
| Montana | |||||||||
| New Hampshire | X | X | |||||||
| North Carolina | X | X | w | ||||||
| North Dakota | w | ||||||||
| Utah | X | X | X | ||||||
| Vermont | X | X | X | X | X | ||||
| Washington | w | ||||||||
| West Virginia | X | ||||||||
| TOTAL | 6 | 4 | 1 | 1 | 2 | 1 | 1 | 1 | 1 |
"X" means the party has a candidate on the ballot; "(X)" means the party label won't be printed; "w" is write-in candidate.
See this note about tables.
| NO. SEATS | Libt. | Nat Law | indp. | Reform | US Taxp | Green | Soc Wkrs | other | |
|---|---|---|---|---|---|---|---|---|---|
| Alabama | 7 | 7 | 3 | ||||||
| Alaska | 1 | 1 | Ak Indpndnce 1 | ||||||
| Arizona | 6 | 3 | 1 | ||||||
| Arkansas | 4 | 2 | |||||||
| California | 52 | 42 | 35 | 1 | 10 | 4 | 2 | Peace & Fr 10 | |
| Colorado | 6 | 2 | 1 | 1 | 1 | ||||
| Connecticut | 6 | 2 | 4 | 1 | 3 | ||||
| Delaware | 1 | 1 | 1 | 1 | |||||
| Florida | 23 | 1 | |||||||
| Georgia | 11 | ||||||||
| Hawaii | 2 | 1 | 2 | 2 | |||||
| Idaho | 2 | 2 | |||||||
| Illinois | 20 | 10 | 2 | 1 | 1 | ||||
| Indiana | 10 | 10 | |||||||
| Iowa | 5 | 3 | 5 | 2 | 1 | ||||
| Kansas | 4 | 4 | 1 | ||||||
| Kentucky | 6 | 1 | |||||||
| Louisinia | 7 | ||||||||
| Maine | 2 | 1 | |||||||
| Maryland | 8 | ||||||||
| Massachusetts | 10 | ||||||||
| Michigan | 16 | 16 | 7 | 1 | SocE 2;WkW 2 | ||||
| Minnesota | 8 | 1 | 1 | 3 | 1 | Grassrts 2;IG 1 | |||
| Mississippi | 5 | 5 | 4 | 2 | Indpendence 2 | ||||
| Missouri | 9 | 9 | 6 | 1 | |||||
| Montana | 1 | 1 | |||||||
| Nebraska | 3 | 1 | 1 | ||||||
| Nevada | 2 | 2 | 1 | ||||||
| New Hampshire | 2 | 2 | 1 | ||||||
| New Jersey | 13 | 9 | 12 | 5 | 4 | ||||
| New Mexico | 3 | 1 | 1 | 1 | |||||
| New York | 31 | 9 | 12 | 1 | 1 | Consv 5; Lib 3 | |||
| North Carolina | 12 | 9 | 12 | ||||||
| North Dakota | 1 | 1 | |||||||
| Ohio | 19 | 17 | Soc Eq 1 | ||||||
| Oklahoma | 6 | 1 | 3 | 1 | |||||
| Oregon | 5 | 5 | 1 | 2 | Socialist 4 | ||||
| Pennsylvania | 21 | 2 | 5 | 2 | 3 | 1 | Soc Eq 1 | ||
| Rhode Island | 2 | 1 | 1 | 2 | 1 | ||||
| South Carolina | 6 | 6 | |||||||
| South Dakota | 1 | 1 | 1 | ||||||
| Tennessee | 9 | 9 | 2 | 5 | |||||
| Texas | 30 | 5 | 16 | 5 | 2 | 1 | |||
| Utah | 3 | 1 | 2 | 1 | 2 | American 1 | |||
| Vermont | 1 | 1 | 1 | 1 | LU 1;Grasrts 1 | ||||
| Virginia | 11 | 2 | 1 | 2 | 3 | Patriot 1 | |||
| Washington | 9 | 3 | 1 | ||||||
| West Virginia | 3 | ||||||||
| Wisconsin | 9 | 2 | 2 | ||||||
| Wyoming | 1 | 1 | |||||||
| TOTAL | 435 | 170 | 155 | 43 | 36 | 26 | 9 | 11 |
Candidates who are nominees of other parties excluded. SocE: Socialist Equality; IG: Independent Grassroots; LU: Liberty Union; WkW: Workers World
On September 30, the U.S. Supreme Court announced it will hear Chandler v Miller, 96-126. This is the case over Georgia's law, that no one can be on the ballot for state office unless he or she passes a test for illegal drugs. This is the first time the U.S. Supreme Court has ever agreed to hear a Libertarian Party election law appeal.
On September 11, the Reform Party finally announced its vice-presidential selection, Pat Choate, an economist. Choate, 65, is from Oklahoma but now lives in D.C. He is best known for his book Agents of Influence, which charges that foreign nations spend heavily to hire former U.S. officials as lobbyists. Choate was fired from his job with TRW, Inc., as a result of his book.
Since the party chose Choate so late, it will not go to court to force states to print his name on the ballot. Nevertheless, 32 states agreed to list him. 16 other states will list stand-in James Campbell, and two will list another stand-in, Carl Owenby. If Perot carries any state, his electors will vote for Choate for vice-president, regardless of which name was on the ballot.
On October 2, Ann Rosenhaft, chairman of the Coalition for Free & Open Elections from 1987 until early this year, died at her daughter's home in Liverpool, England. She had been in poor health for the last year. During her term of office, COFOE expanded its membership to include the Natural Law and U.S. Taxpayers Parties, and individual membership in COFOE also gained.
The Grassroots Party, which wishes to legalize marijuana, has split into two factions, and each has a presidential candidate. The original Grassroots ticket remains Dennis Peron and Arlin Troutt, on in Minnesota and Vermont.
The Independent Grassroots Party nominated John Birrenbach, 35, a small business owner in Minnesota, for president, and George McMahon, 46, of Iowa, for vice-president. This ticket is only on in Minnesota.
The Organization for Security and Cooperation in Europe, referred to as the Helsinki Accord group, is sending a team of international observers to the U.S. to observe the November 5 election. The team arrives on October 29.
The OSCE (formerly known as the CSCE) is the parent body for the Document of the Copenhagen Meeting. That document, which the U.S. signed in 1990, pledges the U.S. not to discriminate against any political party, on matters of ballot access and access to the news media. The United States blatently breaks this agreement. It would be a great help if the international observers could be alerted to U.S. practices, such as:
(1) refusing to let voters cast votes for certain presidential candidates (for instance, Virginians cannot vote for Ralph Nader, not even with a write-in, despite a state Constitutional guarantee of write-in voting);
(2) giving free television time on the major networks only to the Democratic and Republican candidates, despite the Equal Time law and despite the Copenhagen pledge by the U.S. to "provide that no legal or administrative obstacle stands in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process";
(3) restricting presidential debates to only the Democratic and Republican nominees, even though federal regulations require that debates for federal candidates use objective criteria.
Maryland attorney William Plies, 1401 Blair Mill Rd., #1819, Silver Spring Md 20910, 301-588-5943, is doing his utmost to identify and communicate with the foreign observers. He has established COFFE ("Committee Organized for Free Elections") for this purpose. He also plans a trip, at his own expense, to a meeting of the watchdog group for OSCE in Vienna, Austria, between November 4-15. Donations to COFFE are urgently requested. Anyone may communicate directly with the OSCE via e-mail: office@odihr.osce.waw.pl (the permanent office is in Warsaw, Poland). Telephone 01148-22-625-7040. An American, Gerald Mitchell, is usually at the Warsaw office.