| This issue was originally printed on white paper. |
On September 28, 1998, U.S. District Court Magistrate Michael R. Merz ruled that Ohio must let candidates who qualify for the general election ballot by petition, choose a short partisan label (as long as the label doesn't mimic the name of a fully-qualified party), which then appears on the candidate's petition, and on the November ballot, next to the candidate's name. Schrader v Taft, C-3-98-357, Dayton.
Schrader is the nominee of the Libertarian Party for U.S. House, 7th district, but the Libertarian Party isn't a qualified party in Ohio. Therefore, under the law, he is not entitled to have any ballot label next to his name on the November ballot. However, the Magistrate ordered the state to print "Libertarian" next to Schrader's name.
Ohio's petition procedure for new parties to qualify themselves as full-fledged political parties is so difficult, it has been used only 4 times since it was created in 1971 (by the American Independent Party in 1976, the Libertarian Party in 1982, the Reform Party in 1996, and the Natural Law Party in 1996). The procedure requires a petition signed by 1% of the last vote cast, due four months before the primary. The number of signatures required in mid-term years is usually about 45,000, due the first week of January of the election year. This means the signatures must be collected in the year before the election.
By contrast, the Ohio independent candidate procedures are less burdensome. 5,000 signatures are required for statewide office; district office requires 1% of the last vote cast. The signatures are due the day before the primary, which is in May in mid-term years. Because the independent procedures are easier, and the deadline is later, virtually all minor parties in Ohio use the independent procedure.
The problem with this is that state law doesn't permit a partisan label, for candidates who use the independent procedure. The court ruling, if not overturned, cures this problem.
Ohio permitted independent candidates to choose a partisan label, in the years 1891-1947. Slightly over half of the other states also permit a candidate who uses the independent procedure to choose any short partisan label which doesn't mimic the name of a fully-qualified party.
The magistrate based his ruling on a 6th circuit 1992 ruling, Rosen v Brown, also from Ohio, which said that it was unconstitutional for Ohio to refuse to print the word "independent" on the November ballot, for true independent candidates. Although Ohio has been grudgingly following that 1992 court ruling, the legislature has never amended the election law to take that ruling into account.
The state argued that, under the proposed relief, a candidate might request the label "Aryan Nation". That label has never appeared on a ballot in any state, even though ballot access laws in some states are very permissive. Besides, if enough voters sign a petition with that label, one wonders what principle would justify keeping it off the ballot. In 1994, a congressional candidate appeared on the New Jersey ballot with the label "Fascist", but life went on.
Technically, the Ohio ballot label law was declared unconstitutional by Magistrate Merz on September 28, but on September 29 he vacated that ruling, since the state argued that it hadn't had a fair chance to make its case. The injunction remains in place and "Libertarian" will appear next to the candidate's name in November 1998. The issue of the law's constitutionality will be decided in a trial in the coming months.
Ohio's Secretary of State is vociferously opposed to the ruling, and will appeal if the Magistrate refuses to change his mind. If the 6th circuit agrees with the ruling, it would be binding on Tennessee. Tennessee is also in the 6th circuit, and has a law similar to Ohio's: the new party procedures are very difficult but the independent candidate procedures are much easier. In Tennessee, no minor party name has appeared on the ballot since 1972.
On November 3, 1998, 89% of U.S. voters will receive a ballot containing a minor party or independent candidate for partisan office. By contrast, in 1994, the last mid-term election, only 83% of all voters received such a ballot. The 89% figure is the highest for a mid-term election since 1934, when 95.5% of the voters could vote for someone other than a Democrat or a Republican (in 1934, the Socialist Party was on before 85% of the voters).
The 11% of the voters who have no option on the ballot this year, other than Democrats and Republicans, live in Alabama (except for two legislative districts), Florida (except for one congressional district), Maryland (except for one legislative district), in six Virginia congressional districts, and in about half of Washington.
Maryland and Virginia eased their ballot access laws this year, but the change doesn't take effect until 1999. Florida's laws will become easier if the voters pass Revision Eleven, which is on the November 1998 ballot. If Florida does ease its laws, Alabama will then bear the stigma of having the nation's most restrictive ballot access laws.
See below for a summary of the ballot position status for each of the nation's nationally-organized parties.
The following nationally-organized minor parties are on the ballot, for partisan office, before this share of the national electorate. The list assumes that the Illinois challenge to the Libertarian and U.S. Taxpayers petitions is defeated. Parties organized in just one state aren't included:
1. Libertarian: on before 73% of the voters. This is the best for this party in a mid-term year, except for 1982, when it was on before 77% of the voters. It has no candidates on in Alabama, Arkansas, Florida, Iowa, Maryland, North Dakota, Oklahoma, and D.C., and is on in just part of the state in Delaware, Kentucky, Maine, New Jersey, Ohio, Rhode Island, Tennessee, Virginia and Washington.
2. Reform: on before 59% of the voters. The percentage would be higher, but the party has no candidates on the ballot in several states in which it is qualified: Delaware, Louisiana, Massachusetts, Nevada and Utah. Also, it has no candidates on in Alabama, Alaska, Hawaii, Indiana, Maryland, New Hampshire, New Mexico, North Carolina, South Dakota, Tennessee, Vermont, West Virginia or Wyoming, and it has candidates in just part of the state in Connecticut, Florida, Maine, Mississippi, Pennsylvania, Texas and Virginia.
3. U.S.Taxpayers: on before 34% of the voters. It is on statewide in California, Colorado, Connecticut, Delaware, Idaho, Illinois, Kansas, Maine, Minnesota, Missouri, Nevada, Pennsylvania and Wisconsin and on partially in Alabama, Kentucky, Mississippi, New Jersey, Virginia and Washington.
4. Natural Law: on before 31% of the voters. It is on statewide in California, Colorado, Delaware, Idaho, Iowa, Louisiana, Michigan, Montana, Nevada, Ohio, Oregon, South Carolina, and on in partially in Connecticut, Hawaii, Kentucky, Massachusetts, Mississippi, New Jersey, Pennsylvania, Rhode Island, Tennessee and Utah.
5. Green: on before 29% of the voters. It is on statewide in Alaska, California, Colorado, Hawaii, Maine, Minnesota, New Mexico, New York, Oregon, Rhode Island, Wisconsin and D.C., and on in part of Massachusetts, New Jersey and Pennsylvania.
6. Socialist Workers: on before 12% of the voters. It is on statewide in Iowa, Minnesota, New York and D.C. and in part of Massachusetts, Michigan, New Jersey, Pennsylvania and Washington.
7. Workers World: on before 10% of the voters. It is on statewide in California by virtue of its candidate for Governor having won the Peace & Freedom Party primary.
8. New Party: on before 9% of the voters. It is on statewide in New York and Minnesota, and in part of Oregon. It is qualified in Wisconsin, but has no candidates there.
9. Prohibition: on before 2% of the voters; it is on in Colorado and in part of Massachusetts and Utah.
10. Socialist: on before 1% of the voters; it is on in Oregon.
11. Freedom Socialist: on before .4% of the voters; on in part of California, Washington, Oregon and New York.
There are also marijuana law reform parties on the ballot in New York, Minnesota and Vermont, but they are not affiliated with each other.
As of the date this newsletter went to press, there was still no definite word as to whether the Libertarian and U.S. Taxpayers Parties will appear on the Illinois ballot. Republican officials challenged both petitions. The State has already printed the ballots with those parties on the ballot, but if the challenges should succeed, the voting machine levers for those parties would be locked, and gummed paper would be used to blot out those parties from paper ballots.
On September 28, SB 1999 was signed into law. It changes the date of the California primary in all years from June to the first Tuesday in March, for all office. The only other states with a primary in March (for office other than president) are Illinois and Texas. The change was made because California legislators desire to give the state a more prominent role in determining the major party presidential nominees.
Ironically, it is very possible that the major parties won't recognize the California presidential primary in 2000, since California uses a blanket primary and this violates national Republican and Democratic Party rules. On November 3, 1998, California voters will vote on whether to restore the closed primary for president only, but polls indicate that the proposed change will lose. It is also possible that the 9th circuit next year will rule the California blanket primary unconstitutional.
On September 3, a Superior Court Judge in the District of Columbia ruled that petition signatures are valid, even if the petition circulator shows a different address on the petition than in the voter registration records. Turner v D.C. Board of Elections, no. 98-E077. As a result, a medical marijuana initiative will appear on the November 1998 ballot in the District of Columbia.
The oldest election law case which is still pending is McCoy v City of Chicago Heights, filed by African-American voters in 1987 against the city's at-large method of electing city councilmembers. On May 28, 1998, U.S. District Court Judge David Coar ruled that the city should use cumulative voting. However, on August 6, he stayed his own remedy while the city appeals. The next scheduled city council election is in the spring of 1999, but the case won't be settled in time for that. In the 7th circuit, it is case 98-3075.
On September 8, U.S. District Court Judge W. Harold Albritton, a Bush appointee, ruled several Reform Party candidates for legislature and county office, off the ballot. Reform Party of Alabama v Bennett, 98-A-895-N.
The Secretary of State had informed the party in writing that the deadline for it to certify the names of its nominees was in August. The party relied on this information, but later the Secretary of State retracted it and said the legal deadline was in July. The Judge ruled that the party should have known the Secretary of State was wrong. He differentiated another estoppel deadline case, one from Louisiana in 1976, by saying that in that case, both the Attorney General and the Secretary of State had supplied misinformation, whereas in this case, only the Secretary of State had supplied misinformation.
The party appealed, 98-6708, but the 11th circuit hasn't acted yet and the ballots have already been printed.
In a separate lawsuit, a 3-judge federal court ruled several independent candidates off the ballot, because they didn't file a statement of their assets. A 1995 law required such a form, and said that anyone who didn't comply could not appear on the ballot. A Democrat who didn't file the statement was also disqualified, but this left a vacancy and the Democratic Party filled the vacancy with that same candidate. No such relief was available to the independents, and the federal panel upheld their exclusion. Ritter v Bennett, civ 98-T-991-N, m.d. A few Libertarian candidates also were excluded from the ballot under this problem, but they did not participate in the lawsuit.
Ironically, there is a federal court precedent that when a state lets parties fill vacancies created by the candidate's failure to file some form, the state must let supporters of independent candidates also fill the vacancy (even with the same candidate!). El-Amin v State Board of Elections of Virginia, 721 F Supp 770 (1989). However, the attorney for the independent candidates didn't know about this precedent.
On September 24, the 11th circuit upheld filing fees for U.S. House, which are $8,016. Green v Mortham, 98-2042. The decision was written by Frank Hull, a Clinton appointee, and co-signed by Gerald Tjoflat, a Ford appointee, and Emmett Cox, a Reagan appointee.
The case had been brought by a Democratic candidate, Henry Green. He pointed out that, because the fees are so high, there is only one candidate running in three-fourths of Florida's U.S. House races this year. The opinion did not acknowledge that fact. The opinion says the high fees are necessary "to avoid confusion, deception and even frustration of the democratic process". This is judicial thinking of the lowest caliber; that clause has no connection to any facts or logic. There have been many obtuse and thoughtless decisions on ballot access from federal judges in the 11th circuit, but this one is of unusually poor quality.
Also, on September 3, U.S. District Court Judge K. Michael Moore, a Bush appointee, refused to grant an injunction against the mandatory 3% (of the number of registered voters) petition requirement for minor party and independent candidates for the U.S. House. That requirement has been upheld many times in the past, but this time, the candidate had made a bona fide attempt to comply with the law, and desired to present evidence, but to no avail. The candidate, May Chote, was a Reform Party nominee. Chote v Mortham, 98-10059 (s.d.).
On August 31, a state court ordered Natural Law Party State Senate candidate Jonas Magram on the November ballot in Jefferson County, Iowa. The candidate had failed to specify what State Senate seat he was running for on his petition, but the court said it was obvious that he was running for the only State Senate seat for Jefferson County, since all the signatures were from that county and the candidate lives there. Magram v Pate, eq-1063.
On August 28, the D.C. circuit finally released its opinion in LaRouche v Fowler, 96-7191, over ten months since the hearing. This is the case in which Lyndon LaRouche had charged that the Voting Rights Act required the Democratic Party to get permission from the Justice Department, before it issued a rule that votes for LaRouche in Democratic presidential primaries don't count. Since LaRouche would have won a delegate from Louisiana and another from Virginia (states which are covered by the Voting Rights Act), and since the party didn't ask the Justice Department to pre-clear its anti-LaRouche rule, LaRouche sued.
The D.C. circuit ruled that the law is clear: all Voting Rights Act cases must be handled by a 3-judge court. The lower court in this case had refused to convene a 3-judge court, but now it must do so.
1. Alaska: on September 16, the Alaska Supreme Court heard oral arguments in Alaska Civil Liberties Union v State of Alaska, S-08778, over Alaska's campaign finance law which makes it illegal for political parties to receive substantial contributions from anyone. A decision is expected in November.
2. California: on August 24, a State Superior Court ruled that the most recent elections for Democratic party officers in San Francisco were not legal, and restrained the county chair from acting as chair, pending a further hearing. Fitzgerald v San Francisco Democratic County Central Committee, 996691.
California (2): on August 26, a State Court of Appeals ruled that the Republican candidate for Attorney General may appear on the ballot with the occupation "Chief Deputy Attorney-General", despite a state law confining occupational listings on the ballot to only three words. The Court ruled that "Attorney-General" is one word when it is hyphenated. Stirling v Jones, C029207.
3. District of Columbia: on September 14, a group of prominent voters filed a challenge to the District's lack of voting representation in the U.S. House of Representatives. Alexander v Daley, no. 1-98-cv2187. The lawsuit points out that U.S. citizens who live overseas can vote for Congress, whereas U.S. citizens who live in D.C. can't.
4. Georgia: the State Supreme Court will soon issue a decision in Lewy v Beazley, S98A-1903. The issue is whether a notary public may circulate petitions for an independent candidate or a minor party. In 1994 the Court ruled that a notary may not be a circulator. However, since there is no mention of this rule in the Secretary of State's guidelines for petitioning candidates, ignorance of the rule was responsible for keeping the Natural Law and U.S. Taxpayers Parties off the 1996 ballot, and it also resulted in keeping Emily Lewy, an independent for state house in 1998, off the ballot. Lewy hopes to persuade the Court to revise its 1994 ruling.
5. Indiana: on September 22, a State Circuit Judge turned aside a request from the Democratic Party that the winner of the party's primary for Congress in the Sixth Congressional district be removed from the November ballot. The party had charged that the candidate had fraudulently changed his surname from Hidalgo to Kern. The judge found no fraud. Andrew v Kern, 49C01-9806. The party is upset because Kern defeated the party's choice in the May primary, and because Kern is an ex-felon.
6. Missouri: on May 12, a U.S. District Court upheld new state contribution limits, ranging from $275 to $1,075, for state office. Shrink Missouri Government PAC v Adams, 5 F Supp 2d 734 (e.d.).
7. New York: on September 8, the 2nd circuit refused to issue an injunction against a law which requires a petition signed by 5% of the members of a small qualified party, for an unendorsed member of that party to run in its primary. Fulani v Berman, 98-9144.
New York (2): even though the legislature in 1996 repealed the requirement that petitions carry precinct numbers in urban areas, the law still requires suburban signers to list not only their village, but their town (in New York, "town" means the same thing that "township" means in most other states). The Term Limits Party has filed a lawsuit alleging that the township requirement is unnecessary. Feder v Berman, no. 5251-98, State Supreme Court, Albany. If the lawsuit wins, the party will be on the ballot; otherwise it won't have enough valid signatures.
New York (3): on August 28 the 2nd circuit upheld the practice of using different methods in New York city than in the remainder of the state, to determine the order of candidates on the ballot in statewide primaries. The city rotates names, but upstate counties use a lottery. Koppell v N.Y. Board of Elections, 98-9074.
8. North Carolina: on September 29, the U.S. Supreme Court agreed to hear the state's appeal of decision which forced the state to redraw its congressional boundaries for the third time this decade. Hunt v Cromartie, 98-85.
9. Oklahoma: the July 3 B.A.N. reported that a federal judge had ruled that the state must let voters register as members of unqualified parties, if the unqualified party had in the recent past been qualified. On September 9, the judge put the order in writing. Once a party goes off the ballot, voters can still register into it for four more years. The order goes into effect on January 1, 1999. Atherton v Ward, civ-96-1926-A. The state still has not said whether it will appeal.
10. Oregon: on September 23, a state court judge ruled against the Green (Pacific) Party candidate for Governor, Blair Bobier, who had filed a lawsuit in state court to gain access to the debate being sponsored by Oregon Public TV. The case relied on the State Constitution, which says "Elections shall be free and equal". It probably would have won, but Oregon Public TV showed that it hasn't received any state funding since 1993. Bobier v Southern Oregon Public TV, 98-09-6837, Multnomah.
11. Texas: on September 9, the U.S. Taxpayers Party filed a lawsuit in the Texas Supreme Court, to gain the right for a party to qualify in a single legislative district if it is not qualified statewide. Texas law permits county parties but not legislative district parties. On September 10, the Court refused to hear the case. In re Susan Holmes, et al, 98-0856. The party then re-filed in federal court, Holmes v Gonzales, A98-ca-600SS, Austin; the case is pending.
12. Virginia: in 1996, a U.S. District Court ruled the June petition deadline for minor party and independent candidates for statewide office (other than president) too early, but in 1997 the 4th circuit ruled that the lower court should hear more evidence. The plaintiff, Tex Wood, is now collecting affidavits, and the trial should start soon. Wood v Meadows, 94-47-D (Danville).
13. federal law: there will be a hearing in the 9th circuit on November 4 in Perot '96 v Federal Election Commission, 98-15443, over federal law which insures that all FEC Commissioners are always Republicans or Democrats, and another law which discriminates against parties which polled 5% of the vote for president at the last election, relative to parties which polled 25% at the last election. Parties in the former class receive less federal funding, yet are subject to the same contribution restrictions.
On September 13, former Alabama Governor George Wallace died. Although the New York Times obituary covered all of one page and parts of two other pages, it didn't mention one of Wallace's most significant actions: he persuaded the Supreme Court that restrictive ballot access laws are unconstitutional.
In 1967, Wallace decided to run for president, in opposition to the Democratic and Republican nominees. No one had been able to get on the ballot for president, in opposition to the two major parties, in even half the states, since 1952.
In Alaska and Idaho, it was literally impossible for an independent or new party candidate to get on the ballot for president; there was no procedure. In Ohio, 433,100 valid signatures were needed, by February.
Wallace sued Alaska and Idaho in state court, using State constitutional guarantees, and won both cases. Then, after he had qualified for the ballot in 49 states, he sued Ohio in federal court against the restrictive Ohio procedure. He lost in the lower court (except he won write-in space). But the U.S. Supreme Court, for the first time, then ruled that restrictive ballot access laws violate the First Amendment, and told Ohio to put the American Independent Party on the ballot.
The vote was 6-3. The key to winning was to show the Court that Ohio's law was totally at odds with the laws of other states. To a certain extent, Wallace's attorneys exaggerated the harshness of Ohio's law.
Also, Wallace's attorneys tended to paint ballot access laws in the other states as more lenient than they really were. Wallace's brief listed the ballot access laws of the other states, and said that Wyoming only required 100 signatures. Actually, Wyoming had increased its requirement from 100 signatures to 5% of the last vote cast in 1961. Also, the Wallace briefs made no mention of the fact that Alaska and Idaho had literally no statutory means for a new party or independent presidential candidate to win a spot on the ballot.
However, attorneys for the state of Ohio did not contest the information about other states. Instead, they argued that Ohio had the right to ban all candidates from the ballot who were not Republicans and Democrats.
No one on the Supreme Court accepted Ohio's idea. However, the justices from two of the most restrictive states, Earl Warren from California and Potter Stewart from Ohio, voted against Wallace. Warren said more time was needed to study the issue, and Stewart didn't think it was that difficult to get 433,100 signatures by February. Also voting "no" was Byron White from Colorado.
Wallace made an enormous contribution to the cause of free elections, and he should be remembered for it.
The map above (not yet present on web site) shows each congressional district in which the incumbent voted in favor of the Debates amendment, in the U.S. House of Representatives on July 30. It received 88 votes. The dark areas represent the approximate boundaries of the districts in which the member voted "Yes". Also, all members from Alaska and Hawaii voted "Yes".
Arizona: Libertarians had a contested primary for both Governor and U.S. Senator. In both cases, the candidate backed by the Tucson faction of the party won. For U.S. Senator, the vote was Zajac 1,047; Warner 540. For Governor, the vote was Gallant 855; Rawles 795.
In the Reform Party primary, for U.S. Senate, Park received 114; for Governor, Malcomson received 113.
Hawaii: any primary voter is free to choose the primary ballot of any party. There were no contests in the minor party primaries, so few voters chose to vote in them. 302 voted in the Green primary; 274 in the Libertarian primary; 30 voted in the Natural Law primary.
Minnesota: any primary voter is free to choose the primary ballot of any party. More than 17,000 voters chose to vote in the Reform Party primary, even though it had no statewide contests. This was 2.6% of the total primary turnout, a surprisingly high figure. Jesse Ventura, the party's gubernatorial candidate, is registering support of between 10% and 15% in polls for the general election.
New York: the Right to Life and Independence Parties had contested primaries for statewide office. In the Right to Life Party, the vote for U.S. Senator was: D'Amato 3,734; Drolesky 2,207 (D'Amato is also the Republican nominee; Drolesky is a Right to Life activist).
In the Independence Party, the vote for Comptroller was McColl 2,629; Hirschfeld, 1,248. McColl is the Democratic nominee; Hirschfeld is an Independence Party member. For U.S. Senate, the vote was Schumer 2,562; Green 1,852; both are Democrats. For Attorney General, the vote was Abate 1,852; Doyle 1,310; both Democrats.
Washington: the only party (besides D & R) which is permitted to choose its nominees in the primary is the Reform Party. The only statewide office this year is U.S. Senate. Three candidates sought the Reform nomination. None of them polled 1% of the total vote cast for that office, so the "winner" can't appear on the November ballot. The vote: Mike the Mover, 6,596 (.63%); Steve Thompson, 3,371 (.32%); Charlie Jackson, 2,234 (.21%).
The Reform Party candidates for the U.S. House were Peggy McKerlie in the Fourth District, who got 4.1%; and Stan Lippmann in the Seventh District, who got 13.1% (there was no Republican running in that district).
Candidates of non-qualified parties also appear on the Washington primary ballot, to determine if they can poll 1% and qualify to appear on the November ballot. All these candidates for U.S. House met the goal. The U.S. Taxpayers Party nominees were Bruce Craswell in the First District, who got 6.7% of the total vote cast for that office; and John Beal in the Fifth District, who got 5.6%. The Socialist Workers Party nominee in the Seventh District got 2.5%.
The only unqualified party nominee for U.S. Senate, Nan Bailey of the Socialist Workers Party, polled .36%.
Wisconsin: At least 1,260 voters voted in the U.S. Taxpayers primary; 858 in the Libertarian primary; 193 in the Green primary; and 171 in the Reform primary. Voters were free to vote in any party's primary.
The Alaska Republican gubernatorial nominee has a scandal involving campaign finance, and his party has asked him to withdraw. If he withdraws, there will be no Republican on the ballot in that race. There is no Alaska Independence Party candidate either (the primary winner withdrew), so that would leave three names on the general election ballot: the nominees of the Democratic Party, the Green Party, and the Moderate Republican Party.
Next month, Oregon voters will decide whether to pass Question 60, providing for all-mail ballots.
There will be a conference on proportional representation in Minneapolis on November 13-15. Speakers include John Gilligan, former Ohio Governor, and Russ Verney, Reform Party chair. Contact the Center for Voting & Democracy: FairVote@compuserve.com; (301)-270-4616.