![[photo: middle-aged portly white male]](j-b-king.jpg)
| This issue was originally printed on light blue paper. |
On November 13, Congresswoman Cynthia McKinney (D-GA) introduced HB 3068, which would let states use proportional representation for U.S. House elections. It is co-sponsored by Jesse Jackson of Illinois, Chaka Fattah of Pennsylvania, Eddie Bernice Johnson of Texas, James Clyburn of South Carolina, and Eva Clayton of North Carolina. All are Democrats.
Congress is in recess until January 27. Now is a good time for anyone to visit a district office of his or her own member of the U.S. House, and ask that member to co-sponsor any or all three bills which would help minor political parties. The other two bills are HR 2477 (to outlaw restrictive ballot access laws for federal office) and HR 2478 (to insure that general election debates, if held, must include more than just the major party nominees).
The Constitution is silent on whether states must use single-member districts for the House. However, in 1967, Congress passed a law telling the states that they must use single-member districts. HR 3068 would relax that restriction. It is titled "The Voters' Choice Act".
If the bill became law, a state with 20 members of the U.S. House could split itself into 4 equal-population districts, instead of 20 districts as under current law. It could then provide any system of proportional representation it wished (including a party-list system), so that a group of voters comprising as little as seventeen percent of the voters in one of these districts, could elect one of the five members from a district.
Existing minor parties in the U.S. have not generally shown even 17% support, in congressional elections. However, it can be argued that some of them would enjoy this range of support, in a system in which voters didn't feel their vote might be "wasted".
The bill doesn't force any state to change its system; it merely permits the states to experiment. It therefore enhances "states rights", which should be a selling point for the bill.
McKinney introduced a similar bill in 1995, but it would only have permitted states to use candidate-centered forms of proportional representation (preference, cumulative and limited), not party-list systems.
The Center for Voting & Democracy is heading the fight for the bill. It can be reached at PO Bx 60037, Washington DC 20039; (301)-270-4616; FairVote@compuserve.com or at their web page at http://www.igc.apc.org/cvd/ The text of the bill is also available.
On December 2, the U.S. Supreme Court ruled unanimously that Louisiana has been violating federal law ever since 1978, by holding most of its congressional elections in September or October, rather than November. Foster v Love, 96-670.
The decision was written by Justice David Souter, and is only seven pages. An 1872 federal law says "The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress". Two companion laws covers elections for U.S. Senate and presidential electors. Souter's opinion points out that the U.S. Constitution, Article I, §4, gives Congress the authority to regulate the "times, places and manner" of holding congressional elections, and that there really is no serious argument to be made that Congress lacks the authority to set a date for congressional elections. Therefore, Louisiana must obey the federal law, and alter its own election law.
Louisiana, starting in 1978, has used a blanket primary in September or October. If anyone polls at least 50% of the vote in the blanket primary, that person is elected and no election is held in November. This happens 80% of the time.
The Souter decision does not set forth what a state must do to be in compliance with the federal law. However, it is possible that the ruling could be used to attack election procedures for Congress used in Florida and Oklahoma. Those states omit the office of U.S. Representative from the general election ballot, if there is only one candidate who has qualified for the ballot (Oklahoma doesn't permit write-ins; Florida won't print write-in space on the general election ballot unless a write-in candidate has filed by July).
Mike Foster, Governor of Louisiana, is said to favor retaining the blanket primary system, by moving the date of the first election to November, with any needed run-off in December.
However, since the state must make some change, it is possible that the legislature will end the blanket primary system, at least for congressional elections. The legislature is not scheduled to meet until April 1998, but the Governor could call an earlier special session.
On December 4, the Colorado Secretary of State asked the U.S. Supreme Court to overturn the July 28, 1997 Tenth Circuit opinion American Constitutional Law Foundation v Meyer, 120 F 3d 1092, which said that states cannot require petition circulators to be registered voters. That decision also said that states cannot force paid petition circulators to wear badges showing their name and the telephone number of their employer.
On November 17, U.S. District Court Judge David F. Levi upheld California's blanket primary law, against a challenge brought by the state's Democratic, Republican, Libertarian and Peace & Freedom Parties. Calif. Democratic Party v Jones, civ S-96-2038 DFL, eastern district (Sacramento). All four parties plan to appeal.
The California blanket primary law has not been used yet, although it will now be used for the June 1998 primary. It requires that a single primary ballot be printed and distributed to all primary voters. This primary ballot will contain the names of candidates from all eight qualified parties (however, it will not contain the names of any independent candidates). Primary voters will be able to vote for any listed candidate. Thus it will be possible for the members of any particular party to be outvoted by non-members, and the choice of a party's nominee will not necessarily be in the hands of the party's members. This is particularly true in the case of California's minor parties.
The decision is 40 typed pages. The first ten pages describe the new law, describe different primary systems in other states, and explain that a similar primary exists in Alaska, Washington, and Louisiana. The next four pages mention that the State Supreme Courts of Washington and Alaska have upheld the constitutionality of the blanket primary.
Pages 15 and 16 get to the heart of the judge's opinion: he expresses the view that there isn't much difference between a blanket primary, and an open primary. Open primaries confine a voter to voting in the primary of just one political party, but give a primary voter the freedom to decide which party's primary ballot to choose. Almost half the states have open primaries.
Levi writes "Yet while the interest in determining who will vote in a party's primary is one protected by the First Amendment, and is undoubtedly an important interest, this is not the end of the inquiry."
"If it were, then open primaries would also be unconstitutional upon any party's objection: an open primary, every bit as much as a blanket primary, permits voters who are not registered in a party to vote in that party's primary. But many of the States have some version of an open primary and to invalidate them all on this theoretical ground would be an extraordinary intrusion into the complex and changing election laws of the States and would remove from the American political system a method for candidate selection that many States consider beneficial and which in the uncertain future could take on new appeal and importance."
On page 18, Levi cites Lightfoot v Eu, a 1992 9th circuit opinion which denied that the constitutional guarantee of free association protected the Libertarian Party's right to nominate by convention, in cases when the primary had not produced a Libertarian nominee. Pages 19 and 20 conclude that political parties do not have the same right to freedom of association that purely private associations do, citing the "white primary cases" of the 1940's.
Pages 21 through 29 rebut the political party's arguments that the blanket primary will harm them. Levi belittles the idea that many voters will deliberately vote for a major party candidate whom they don't like, in order to embarrass the major party which they don't support (for example, some Republicans voted for George Wallace in Democratic presidential primaries in 1964, 1972 and 1976 in open primary states such as Michigan and Wisconsin, in order to embarrass the national Democratic Party). Levi also doubts that many primary results will be changed by the switch to a blanket primary.
In a footnote he dismissed the concerns of California's minor parties, saying "The minor parties rarely have contested primaries" and that even when they do, "Those non-party members who vote for minor party candidates at the general election are most likely voters whose preferred candidates were not selected in the primary of a major party."
Although Levi acknowledged the argument of the major parties that it will now cost far more for candidates in a primary to campaign (for example, a Republican running in a contested Republican primary formerly only had to reach the registered Republicans; now such a candidate must campaign among all voters, two and one-half times as many voters), he didn't express an opinion about it.
The Democratic Party had complained that the party's national rules don't permit open presidential primaries (except that Montana and Wisconsin have exemptions). Levi dismissed this point by saying, "This is a choice for the parties to make, and they can do as they please without interference from the State" (in other words, they are free to refuse to seat delegates elected from California).
Levi also dismissed Democratic and Republican Party objections that their state governing bodies consist partly of the appointees of the party's nominees for public office. Under the blanket primary, some party nominees will have won primaries even though they weren't the choice of their own party's members. Levi said the parties are free to change the way they make appointments to their own governing bodies.
On pages 32-39, Levi discusses the state's interest in having a blanket primary. He determined that a state has an interest in encouraging the voters to elect moderate officeholders who will more easily compromise. He also found that a state has an interest in empowering voters who are registered "Independent" (under case law, all of California's 8 qualified parties were free to decide for themselves whether to permit independents to vote in their primaries, but none of them had chosen to do so; therefore, independents couldn't vote in partisan primaries).
Levi also found that a state has an interest in giving more power to members of the weaker major party who live in districts where that major party is far outnumbered by members of the other major party.
Under the old law, only members of the dominant party (in a district dominated by that one party) have a realistic chance to help choose their district's representative.
Levi concludes, "The court finds that the parties have succeeded in showing that the blanket primary imposes a significant but not severe burden on their associational rights". Therefore, the law is constitutional.
The U.S. District Court decision upholding the blanket primary law, to be influential, ought to have faced up to the fact that the U.S. Supreme Court has several times ruled that a party's right to decide for itself who votes in its primary, is protected by the First Amendment. The U.S. Supreme Court has said:
1. "It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments. Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to 'identify the people who constitute the association,' and to select a standard bearer who best represents the party's ideologies and preferences." Eu v San Francisco County Democratic Central Committee, 489 U.S. 214 (1989), at page 224.
2. "Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being... The inclusion of persons unaffiliated with a political party may seriously distort its collective decisions -- thus impairing the party's essential functions -- and thus political parties may protect themselves from intrusion by those with adverse political principles". Democratic Party of the U.S. v La Follette, 450 US 107 (1981), at 122.
3. "Freedom of association includes partisan political organizations." Tashjian v Republican Party of Connecticut, 479 US 208 (1986), at 214.
Levi ignored these quotes. He also ignored a 1995 9th Circuit opinion, Ziskis v Symington, 47 F 3d 1004, which says "Given the state's interest in protecting the associational rights of party members, the state may legitimately allow political parties to close their primaries to nonmembers." (emphasis added). California is in the 9th circuit and Levi is charged with following its precedents, yet he didn't mention Ziskis.
Levi's footnote disposing of minor party complaints is incomplete and factually erroneous. The Peace & Freedom Party has had more contested primaries for statewide office than it has had non-contested primaries for statewide office. Every Peace & Freedom presidential primary for the last twenty years has been fiercely contested. In the past, candidates in those primaries (or the party itself) did manage to raise enough money to send mail to its registered voters, so that those voters had some idea of who they were voting for or against. But under the new law, it will be impossible for Peace & Freedom candidates, or the party itself, to communicate with all 15,000,000 registered voters, and the outcome of the primary will be in the hands of voters who will not be members of the party and who won't know much about its competing candidates.
Evidence was presented at the trial that in Washington state and in Alaska, where minor party candidates are listed on the blanket primary, the vote for minor party candidates in those primaries is about as high as it is in the general election. In Washington, the median vote for minor parties in both the primary and in the general is 3%. In Alaska, the median vote for minor party candidates in the primary is actually higher than it is in the general election. If the same behavior holds true in California in 1998, the vast majority of voters who vote for minor party candidates in primaries will be well-meaning sympathizers of those parties who are not party members. They will have little basis for making an informed choice, since the mass media does not cover contested minor party primaries.
No harm is done in Washington state, since there, minor parties are not permitted to have contests in the primary. Minor parties choose their nominees earlier, at a convention; the choice is listed on the primary, only to determine whether the nominee has enough support to justify being placed on the general election ballot.
But in Alaska, the blanket primary has harmed minor parties. In 1986, the Libertarian Party had a contested primary for Governor. One of the two candidates, Mary O'Bannon, had moved out of the state before the primary was even held, yet her name remained on the primary ballot. She won the primary against Ed Hoch, the choice of the party organization. At the general election, O'Bannon's name was listed on the ballot as the Libertarian candidate for Governor, yet there was no campaign for her, since she wasn't there. With no campaign, the party failed to poll 3% for Governor and lost its qualified status. If the primary had been limited to party members, who were informed about the race, Hoch would have won; but with the entire Alaska electorate making the (uninformed) choice, the primary results were disastrous for the party.
Levi's point that the blanket primary is not very different from an open primary, is possibly correct. But it is not logical for him to assume that open primary laws couldn't possibly be unconstitutional. An open primary might very well be un-constitutional should a party which is forced to submit to it, ever complain. In 1972, the U.S. Supreme Court invalidated every state's election law, by ruling that voter duration of residency requirements were unconstitutional. In the 1960's, the "one man, one vote" reapportionment decisions forced every state to re-do its legislative districts. Just because a ruling has a major impact on many states, doesn't mean that it is wrong.
Finally, Levi ignored the point that states have a compelling interest in preventing crowded ballots. If the blanket primary had been in effect in California in 1996, there would have been 22 candidates for president listed on the primary ballot.
The Document of the Copenhagen Meeting, part of the Helsinki Accords which the United States signed in 1990, says "We solemnly declare that among those elements of justice which are essential... are the following: ..a clear separation between the State and political parties; in particular, political parties will not be merged with the State".
A system in which the government can intervene in the affairs of political parties, and tell them that they must give non-members the same power that their own members enjoy, is not a free system. Judge Levi is right to extol the virtues of experimentation. If a state wishes to experiment with an election system in which all voters participate in all rounds of voting, it is free to choose non-partisan elections. If a state is concerned about the lack of voting power of members of parties too weak to win general elections, it is free to try proportional representation. But, under the First Amendment's guarantee of free association, no state may tell parties that their own members have no more voice in their own organization, than non-members do.
Last month, the Wyoming Committee (headed by the Secretary of State) which is writing a bill to revise the election code, voted to set the petition and vote tests for new parties at 2% of the last vote cast. This is an improvement over the committee's earlier decision to set the tests at 3%. Activist Bill Strickland of Riverton worked very hard to achieve this result. Of course, the change won't happen until the 1998 session of the legislature passes the bill, but the bill probably will pass.
On November 4, Denise Winebrenner Edwards was elected to the Wilkinsburg, Pennsylvania borough council. Although she was a Democratic Party nominee, she is also a leader of the Communist Party, a fact which was well known during the campaign.
On November 21, U.S. District Judge Robert Hinkle, a Clinton appointee, upheld the January start date for minor party and independent candidate petitions (for office other than president). Reform Party of Florida v Mortham, 4:97cv347-RH.
The case had been filed by the Reform Party, which faces a 1998 requirement of 242,337 valid signatures, if it wishes to run any candidates for statewide office. Although this number of signatures (3% of the number of registered voters) has been upheld by federal courts in Florida, no Florida lawsuit had ever been filed on the subject of how soon petitions may begin circulating. The party pointed out that there is no start date for petitions for presidential candidates in Florida, and since the lack of a start date for president seems to create no problems for election administrators, it seems logical that there doesn't need to be a start date for other minor party and independent candidate petitions either.
Judge Hinkle didn't even mention that argument. He merely said that since the U.S. Supreme Court had upheld the Georgia ballot access laws in 1971 in Jenness v Fortson, and since Georgia had had a similar start date, therefore the Florida start date must be constitutional.
The trouble with that reasoning is that the plaintiff in Jenness, the Socialist Workers Party, didn't complain about the Georgia start date. This is true of the other cases Hinkle cited as well (one on the number of signatures required, and one on the petition deadline). Therefore, comments on the start date in the other cases are "dicta", not controlling precedent. The Reform Party hasn't decided whether to appeal.
Oklahoma has finally released new voter registration forms, which list the Reform Party as well as the Democratic and Republican Parties. The Reform Party has been qualified in Oklahoma since June 1996, yet it had to wait 18 months, and bring a lawsuit, before the state reprinted the forms.
On November 5, the Reform Party filed a lawsuit against the Federal Election Commission, charging that the law under which there are always 3 Democrats, and 3 Republicans, on the FEC, and no others, is unconstitutional. The lawsuit also sues the major parties for violating campaign finance laws during the 1996 campaign. Nat. Comm. of the Reform Party v Democratic Nat. Comm., c97-4048VRW, nor. dist., California. A second lawsuit, Perot '96 v FEC, 97-4048, filed in Washington, D.C. a week earlier, seeks to force the FEC to make a decision about whether Perot's exclusion from the debates last year violated FEC guidelines.
On October 31 -- November 2, the Reform Party held a national convention, elected national officers, established a National Committee, and passed a constitution. The convention was in Kansas City, Missouri. It was attended by 500 delegates from 45 states and D.C. Ross Perot addressed the meeting on Saturday evening, acknowledging that he had made some political mistakes during his presidential campaigns.
The party's constitution calls for a national committee composed of the Executive Committee and three members from each state. The Executive Committee consists of the Chair, the Vice Chair, the Secretary, the Treasurer, and the heads of the six standing committees (rules, issues, party building, finance, public relations and communications).
State parties are subject to losing accreditation if any national convention should be called, and the state fails to fill at least one-fourth of its delegate slots. The definition of "party member" is left to the various state parties. The constitution can only be amended by a two-thirds vote at a national convention.
Each state party is entitled to three delegates to a national convention, plus delegates equal in number to that state's membership in the U.S. House of Representatives.
On November 20, eleven judges of the 9th circuit held a rehearing in Bates v Jones, 97-15864, the case on lifetime state legislative term limits.
When the 9th circuit holds an en banc rehearing, it chooses 11 judges randomly. Judges for this case are James Browning (Kennedy appointee), Proctor Hug, Mary Schroeder, Betty Fletcher, Harry Pregerson (Carter appointees), David Thompson, Diarmuid O'Scannlain, Stephen Trott (Reagan), Pamela Rymer, Andrew Kleinfeld (Bush), and Michael Hawkins (Clinton).
The judges seemed uninterested in asking about the theory under which the original 3-judge panel of the 9th circuit had struck down term limits, which was that the initiative was invalid since the voters had not been told that the term limits were lifetime limits. Nor were there many questions about the theory that the U.S. District Judge had used to strike down the term limits, that state term limits are probably constitutional, but lifetime term limits aren't.
Instead, most of the hearing centered on whether anything in the Constitution forbids the states from imposing term limits. Also, there were questions about the conflict between the California Supreme Court (which had upheld the initiative) and the earlier federal ruling. Judge Hawkins asked if a state could ban lawyers from serving as legislators; the attorneys defending term limits were uneasy with that question, but said "no".
See this note about tables.
| New Jersey Governor | ||
|---|---|---|
| Republican | 1,133,394 | 46.87% |
| Democratic | 1,107,968 | 45.82% |
| Libertarian | 114,172 | 4.72% |
| Conservative | 34,906 | 1.44% |
| Green | 10,703 | .44% |
| Indp-Progressive | 6,805 | .28% |
| Socialist Wrkrs | 2,816 | .12% |
| Socialist | 2,800 | .12% |
| Natural Law | 2,540 | .11% |
| Independent | 2,240 | .09% |
| Virginia Governor | ||
|---|---|---|
| Republican | 969,052 | 55.89% |
| Democratic | 738,971 | 42.62% |
| Reform | 25,955 | 1.50% |
| Virginia Lieutenant Governor | ||
|---|---|---|
| Republican | 839,895 | 50.31% |
| Democratic | 754,404 | 45.19% |
| Reform | 75,024 | 4.49% |
| New York City Mayor | ||
|---|---|---|
| Republican | 748,277 | 55.14% |
| Democratic | 549,335 | 40.48% |
| Liberal | 35,538 | 2.62% |
| Reform | 14,316 | 1.05% |
| Right to Life | 5,304 | .39% |
| Socialist Wrkrs | 3,753 | .28% |
| Fusion | 632 | .05% |
| Philadelphia District Attorney | ||
|---|---|---|
| Democratic | 128,921 | 65.83% |
| Republican | 39,355 | 20.10% |
| Libertarian | 27,551 | 14.07% |
The Libertarian Party won 14 partisan elections in Pennsylvania and 8 non-partisan elections in other states; New Party members were elected to non-partisan office in Maryland, Minnesota and Montana; Green Party members were elected to non-partisan office in Minnesota, North Carolina and Virginia.
The petitioning chart is omitted from this B.A.N., but it will return in the next issue. Changes since the November 1 issue: (1) the 1998 Pennsylvania petition requirement is known now, and will be 24,300 signatures; (2) the Reform Party is no longer qualified in Virginia, since it failed to poll 10% for any statewide race last month; (3) the Natural Law Party has given up trying to qualify as a party in Ohio for 1998, and will instead use its 21,000 signatures for 2000; (4) the Green Party has almost 7,000 signatures in Michigan; (5) the Libertarian Party has 1,500 signatures in Hawaii, and 1,400 in New Hampshire.
Last month, the Populist Party won a judgment of $2,000,000 in a jury lawsuit against the party's former attorney. Wassell v DeCaro, federal court, Pittsburgh, Pa. The case was in federal court because the plaintiff and defendant are in different states. The judgment was for legal malpractice. In 1991, the party had hired an attorney to file a libel lawsuit. The attorney filed the case but handled it very badly. To win this malpractice case, the party had to show not only that its attorney did a bad job, but that it probably would have won if he had done a normal job.
The Populist Party placed fifth in the 1992 presidential election, but didn't run a presidential candidate in 1996.
See this note about tables.
| Libertarian | Green | Conservative | Nat. Law | Reform | Socialist | Soc. Wkr | |
|---|---|---|---|---|---|---|---|
| New Jersey St. Senate | 3,291 | 275 | 42,868 | 2,305 | |||
| New Jersey Assembly | 9,850 | 41,912 | 1,606 | 1,833 | 1,014 | 204 | |
| Virginia House | 16,569 | 8,497 | 7,932 |
See this note about tables.
| Libertarian | Green | Conservative | Nat. Law | Reform | Socialist | Soc. Wkr | |
|---|---|---|---|---|---|---|---|
| New Jersey St. Senate | 2.76% | .41% | 3.34% | 1.93% | |||
| New Jersey Assembly | 3.94% | 2.95% | 1.15% | 3.34% | 2.98% | .66% | |
| Virginia House | 13.82% | 10.45% | 13.52% |
The tables above give the vote, and the percentages, for third party legislative candidates in the elections of November 4, 1997.
Ballot Access News names J. Bradley King, Co-General Counsel of the Indiana Election Division of the office of the Secretary of State, as "Election Administrator of the Year". King did more than any other state election official during 1997 to improve ballot access laws. Entirely on his own initiative, King wrote several provisions that were included in an omnibus election law bill, provisions which will assist new and minor parties. The bill, HB 1844, had a perilous journey through the legislature, but was signed into law May 13, 1997.
The most important change permits a petitioning party to use a stand-in candidate, for any office, on its petition. After the petition has been submitted, but before September 1 of any election year, the stand-in can withdraw and the petitioning group can replace him or her with the actual candidate.
This change makes it possible for Indiana parties to petition before they have chosen their final nominee. Since the petition signature requirement is very high, and the petition is due in July, the change is essential for any new party which won't choose its presidential candidate until the summer of an election year.
Although Indiana administratively permitted stand-ins in the past two presidential elections, there was no statutory authority to protect that policy, and it could easily have been reversed. Now, however, the policy is in the law.
King also initiated these provisions: (1) that the "sore loser" law does not apply to presidential primary candidates; (2) an extension of the deadline for filing as a write-in candidate from 74 days before the election, to 50 days before; (3) when petitions are checked, a voter's signature will not be rejected due to a minor variation in the name or address (such as a missing middle initial); (4) an easing of the number of signatures needed in very small political units.
During 1997, state elections officials in Arkansas, Hawaii, Kentucky, New York, North Dakota, and Virginia also helped persuade legislatures to improve ballot access laws, or made significant favorable administrative rulings. State elections officials in Maine and West Virginia tried to get legislative improvements in 1997, but their legislatures balked. But in all these instances, the ideas for the improvement came from the outside world, whereas in King's case, he was the originator of the ideas for improvement, as well as the force for getting them enacted.
King received his J.D. from the College of William and Mary and is a member of the California and Indiana bars. He has long been interested in ballot access, having written on the subject during law school. From 1985 to 1990, he served as attorney for the legislative election committees. He was chief lobbyist for the City of Indianapolis from 1990 until 1992, and has since served as counsel to the State Election Board (now the Election Commission). King said "although Indiana is a conservative state, with strong major parties, everyone can support the elimination of needless obstacles to ballot access. By doing so, we not only avoid wasting taxpayer money in litigation; we help keep the entire voting process adaptable and thriving."