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On January 12, the U.S. Supreme Court ruled that states cannot require initiative petitioners to be registered voters. Buckley v American Constitutional Law Foundation, no. 97-930. The vote was 6-3. Dissenting were Justices William Rehnquist, Sandra O'Connor and Stephen Breyer. The decision was written by Justice Ruth Ginsburg.
Although the decision arose in the context of petitions to place initiatives on the ballot, there is nothing in the decision to suggest that it isn't equally applicable to petitions to place new parties, and candidates, on the ballot.
20 states require that petitions to get a new party on the ballot, or petitions to place a candidate on a ballot, can only be circulated by registered voters of that state. Furthermore, most of those states require that candidate petitions for district or county office can only be circulated by voters who are registered in that particular district or county.
The majority decision does not decide whether states can require petitioners to be residents of the state, since the individuals who brought the lawsuit did not raise that question. However, Rehnquist's dissent says "The implication... is that a State cannot limit the ability to circulate issues of local concern to its own residents." Indeed, two lesser federal courts (the 8th circuit and a U.S. District Court in Mississippi) have recently said that states cannot even require petitioners to be residents.
Ginsburg hinted that if residency were to be upheld, it would be residency within the state, not residency in the particular district for which the candidate petition were being circulated. She said, "Assuming that a residence requirement would be upheld as a needful integrity-policing measure -- a question we have no occasion to decide -- the added registration requirement is not warranted."
The implication here is that the justification for requiring residency is to facilitate the prosecution of fraudulent petitioning. However, if that were the only legitimate justification for requiring residency, residency in the state would be sufficient, since a state's criminal justice system has authority over anyone in the state; there would be no rationale to require residency in a particular district.
The majority decision says that petitioners are not agents of the State, and quotes with approval the lower court's statement, "Circulating a petition is akin to distributing a handbill." This analysis is extremely helpful to potential lawsuits against Postal Service regulations which prohibit petitioning on post office sidewalks.
How the Decision Helps
During the last fifty years, many states have made ballot access more difficult by limiting the ability of some people to become petition circulators. Lower courts have almost always deferred to these laws: in Illinois, no one may circulate a petition for a minor party or independent candidate, if that person circulated a petition several months earlier to place someone on a primary ballot. In Virginia, no one may circulate a minor party petition outside of his or her congressional district or a neighboring district. In Kansas, no one may circulate a minor party petition outside his or her home county. In West Virginia, a petitioner must obtain "credentials" from each county clerk in which the petitioner works.
And, in addition to those states, Arizona, California, Colorado, Connecticut, Idaho, Michigan, Missouri, Nebraska, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Dakota, Wisconsin and Wyoming require petitioners seeking to put minor parties or independent candidates on the ballot to be registered in that state.
Georgia and Iowa require circulators to be residents of the state.
One can imagine how silly it would be for a state to make it illegal for anyone to distribute leaflets outside of his or her home county, or to require that handbill distributors be residents of the area. The logic of the Supreme Court's analogy (petitioning is like distributing handbills) will be very powerful when these laws are challenged, as they surely will be.
Through the years, dozens of candidates have been kept off the ballot, especially in Illinois, New York, Ohio and Pennsylvania, because the petition circulators weren't registered in the candidate's district. Buckley v ACLF is certainly the most useful decision that the U.S. Supreme Court has handed down for ballot access since 1983, when it outlawed early petition deadlines for independent presidential candidates in Anderson v Celebrezze.
Other Issues in the Case
The Court also struck down a law requiring paid petitioners to wear a badge, giving the petitioner's name and either of these words: "Paid" or "Volunteer". Also, the majority invalidated a law requiring paid petitioning companies to file a monthly report, listing the name and address of each petitioner and how much he or she received.
Both Rehnquist and O'Connor wrote dissents from the registration decision. Rehnquist said, "The Court today holds that a State is constitutionally required to allow those who make no effort to register to vote -- political dropouts -- and convicted drug dealers to engage in this electoral activity... The idea that convicted drug felons who have lost the right to vote under state law nonetheless have a constitutional right to circulate initiative petitions scarcely passes the 'laugh test'."
By good luck, a U.S. District Court case in Illinois, over whether the state can require petitioners (for candidates) to be registered voters, is currently pending, and thus the U.S. Supreme Court's Colorado decision will make its mark quite soon. The case is Krislov v Rednour, 980 F Supp 267. Although U.S. District Court Judge Elaine Bucklo (a Clinton appointee) upheld the Illinois ban earlier, certain other issues in the case are still open, and now the Judge has been asked to reconsider the main issue. It is likely that she will.
On February 2, five minor parties filed a lawsuit against the New Jersey definition of "political party", which is so restrictive that no party other than the Democratic and Republican Parties has ever met it. It has existed since 1920, and requires a group to poll 10% of all the votes cast for lower house of the legislature. Council of Alternative Political Parties v State of New Jersey, Mercer Sup. Court, C-6-99. The party plaintiffs are Green, Libertarian, Natural Law, Reform & U.S. Taxpayers.
In New Jersey, a group which is not a "party" may petition to put candidates on the ballot, and may have a partisan label printed on the ballot next to the name of its candidate. However, voters can only register into qualified parties, which means they can only register "Republican", "Democratic", or "independent".
Another disadvantage of the existing law is that in counties with mechanical voting machines, all of the nominees of a "party" are placed in a single row or column. But if a group which is not a "party" has several candidates, its candidates are not grouped into a single column or row, but are scattered randomly.
Also, New Jersey official election returns don't include the partisan labels of the various petitioning candidates (they are merely labelled "independent"), so no historical record is left by which anyone can know the party affiliation of the candidates placed on the ballot by petition.
On January 20, the U.S. Supreme Court ruled 6-3 that states which are only partially covered by §5 of the Voting Rights Act must pre-clear all election law changes with the U.S. Justice Department.
This means that Alaska, Arizona, California, Michigan, New Hampshire, New York and South Dakota cannot change their election laws without approval from the Voting Rights Section of the Justice Department. These are the states in which certain counties are subject to pre-clearance, but the entire state isn't. Lopez v Monterey County, 97-1396.
Monterey County, California, is one of 4 California counties subject to pre-clearance, because it has traditionally had lower voter turnout. The issue was whether Monterey County had to seek pre-clearance of a change in its method of electing Superior Court Judges, given that the change was dictated by a new state law, rather than by any decision of the county. The answer: "Yes".
The decision will be useful, should any of the seven states above threaten to increase ballot access requirements. Opponents of any increase can now point out that such a hostile change cannot be made without approval of the Voting Rights Section in Washington, D.C. In truth, the Voting Rights Section during the Bush and Clinton administrations has not blocked hostile ballot access law changes in the covered states (in 1996 the Voting Rights Section let Alabama triple the number of signatures needed for minor parties and independent candidates). But there is always hope that the Voting Rights Section will improve in the future.
1. California: on January 29, the State Court of Appeals, 4th dist., ruled that candidates have a right to mail anonymous campaign literature. Griset v FPPC, G018853. The vote was 2-1. Griset had been a candidate for Santa Ana city council. The state will appeal.
California (2): on January 5, the 9th circuit issued an order in California Pro-Life Council v Scully, 98-15308, the case over California's contribution limits. Instead of making a decision on the merits, the 9th circuit sent the case back to the U.S. District Court, which had invalidated key parts of the campaign contribution limits but had left other issues unresolved. The 9th circuit told the U.S. District Court to settle all of the pending questions in the case.
2. Missouri: on January 25, the U.S. Supreme Court accepted the state's appeal in Nixon v Shrink Missouri Government PAC, 98-963. This is the first case over contribution limits the Supreme Court has agreed to hear since 1976 (although there have been many Supreme Court cases since then over expenditures). The 8th circuit had invalidated campaign contribution limits of $1,075 for statewide office. Although the U.S. Supreme Court had upheld $1000 contribution limits for federal office in 1976, the 8th circuit said that when inflation is taken into account, $1075 in 1976 is the equivalent of only $378 today. Of course, if the 8th circuit's logic is correct, then the current federal limit of $1,000 is also too low.
Missouri (2): On October 6, 1998, the State Court of Appeals ruled that political party committeeman is not a public office, even though parties elect their committeemen on primary ballots. State ex rel McCullough v Hoskins, 978 SW 2d 779.
3. Ohio: on January 19, the U.S. Supreme Court refused to hear Marshall v Suster, 98-737, in which the lower court had invalidated expenditure limits for judicial races.
4. West Virginia: on November 4, 1998, a U.S. District Court ruled that Kentucky cannot enforce its campaign finance laws on radio stations located in West Virginia. Kentucky requires all radio stations to notify it when candidates purchase ads. Some Kentucky candidates purchase air time on West Virginia stations. The court ruled that West Virginia radio stations need not comply. Adventure Communications v Ky. Registry of Election Finance, 24 F Supp 2d 632.
In Vermont and New Mexico, bills were introduced on February 2 to provide for preference voting ("instant run-off") for statewide office. The New Mexico bill is SJR 12, by Senator Phillip Maloof (D-Albuquerque). The Vermont bill won't receive a bill number until February 8; it is sponsored by Rep. Terry Bouricius (Prog-Burlington) and has 4 Democratic cosponsors and 4 Republican co-sponsors. The Vermont bill could be implemented with no change in the State Constitution.
The Florida legislature doesn't convene until March, so it has had no opportunity to revise the election laws, to take into account the passage of Revision Eleven last November. Revision Eleven altered the state constitution to require equal ballot access for all candidates.
However, four Florida special legislative elections are scheduled, so the Secretary of State was forced to improvise. She ruled that anyone could gain a place on the ballot, merely by paying a filing fee. As a result, in two special elections, there will be contests between Democratic, Republican and Libertarian nominees; and in a third race, there will be a race between a Democrat, a Republican, and a Reform Party nominee. None of the minor party candidates needed a petition.
Although the legislature hasn't convened, committee hearings have been held, and it appears likely that the Election Law Committees will sponsor a bill implementing the policy described above. Also the bill will probably reduce the number of petitions in lieu of filing fee to 1% of the number of registered voters, and provide easy ballot access for presidential candidates of nationally-organized parties which have registered their state officers with the Secretary of State. There may be separate bills to lower the filing fees, which are 6% of the annual salary (but there is no fee for presidential candidates).
In November 1998, either the Republicans or the Democrats failed to run a candidate in 41.1% of all state legislative contests.
|STATE||SEATS||no D||no R|
"No D" means the number of seats with no Democratic candidate; "No R", the number with no Republican. Five states did not elect partisan legislators in 1998 and are omitted.
This represents a low point for major party activity for the decade. In 1996, there was no Democrat or no Republican in 32.7% of such races; in 1994, 35.8%; in 1992, 32.8%; in 1990, 35.9%; in 1988, 36.6%.
HB 47, the bill to create a petition procedure for establishing a new qualified party, passed the House on January 25 by a vote of 71-28. It now goes to the Senate Elections Committee. Unfortunately, the bill was amended on the House floor to require 25,000 signatures instead of 10,000. Also, 500 signatures from each congressional district would be required.
Rep. Natalie Flanagan (R-Atkinson) has introduced HB 375, which would increase statewide minor party and independent candidate petitions 7-fold. Existing law requires 3,000 signatures; the bill would change this to 3% of the number of registered voters, which would be over 22,000 signatures. If passed, New Hampshire would require more signatures for statewide ballot access than any other state (when each state is compared relative to its size, using the easier of the two procedures, independent and new party). There will be a hearing on the bill on February 9.
On January 26, Senator John Burton (D-San Francisco) introduced SB 100, which would tell elections officials to keep track of the number of votes received in the presidential primary cast by members of each party. With this information, the parties would be free to use only the votes cast by members of their own party, and ignore the vote cast by members of other parties and independents.
The plan imitates the Washington state presidential primary. Both states use a "blanket" primary system, in which any voter may vote for any candidate at the primary. The national Republican and Democratic Bylaws don't permit this type of primary for president, so Burton's bill hopes to solve the problem.
In 9 state legislatures, bills have recently been introduced to improve ballot access laws for minor parties and independent candidates:
1. Hawaii: SB 631 would provide that a party with 50 actual members would be placed on the ballot, regardless of its previous vote. It is sponsored by Senators Matt Matsunaga and Avery Chumbley, both Honolulu Democrats. To help with this bill, contact Roger Taylor at firstname.lastname@example.org or (808)-486-9910.
2. Iowa: SF 58 would change the definition of "party" from a group which polled 2% for Governor or President, to 2% for any statewide office. It is sponsored by Senators Joe Bolkcom (D-Iowa City) and Dave Miller (R-Libertyville). The same bill in the House is HF 158 by Rep. Rebecca Reynolds-Knight (D-Bonaparte). To help pass this bill, contact Russell Lovetinsky at (319)-351-0161 or Ptaflove@aol.com
3. Maine: LR 1772, by Senator Mark Lawrence, would define "party" by its registration instead of its past vote. LD 639, by Sen. Beverly Daggett, would let a party remain on the ballot for 4 years after it polled 5% for either Governor or president, instead of just two; and it would provide that a party becomes qualified as soon as it gets 5% (under current law, party status doesn't take effect for 18 months). LR 1499, by Rep. Bob Stanwood, would legalize stand-in presidential candidates on independent petitions. To help pass any of these bills, contact Nancy Allen at (207)-667-2016 or email@example.com
4. Massachusetts: SB 315 would let a party remain on the ballot for 4 years after it polled 3%, instead of just 2 years. SB 317 would give parties more time to qualify via the registration method. SB 314 would let candidates obtain a place on a primary ballot by paying a fee. SB 316 would provide that anyone may sign a petition to place a candidate on a primary ballot. All are by Senator Stephen Brewer. To help these bills, contact Jason Solinsky at solman@MIT.EDU or (617)-547-3800.
5. New Hampshire: HB 418, by Rep. Richard Brewster, would permit a party to qualify itself if it submitted a petition signed by 50 signatures in each county.
6. Oklahoma: HB 1742, by Rep. Bill Graves, would lower the number of signatures for a new party from 5% of the last vote cast, to 10,000 signatures. To help pass this bill, contact Lynn Atherton at (918)-447-1776 or firstname.lastname@example.org. A meeting of the bill's supporters is being planned for February 20 in Oklahoma City.
7. Pennsylvania: Rep. Todd Platts will re-introduce his ballot access reform bill next week. The bill would lower the number of signatures for statewide ballot access to 2,000 signatures (currently, approximately 25,000 are required). To help pass this bill, contact Tom Linzey at (717)-530-0931.
8. Texas: HB 386, which would lower the number of signatures for a new party to 10,000, and expand the petitioning period from January 1 to July 1 (currently, only 75 days are required to obtain approximately 40,000 signatures), is sponsored by Rep. Jim Keffer. "Texans for Fair Elections" has been formed to work for the bill. To get in touch with the group, contact Jim Farrar, (254)-629-8547 or email@example.com
9. West Virginia: S 38 by Senator Jon Hunter, and H 2115 by Rep. Barbara Fleischauer, would repeal the prohibition on primary voters signing minor party and independent candidate petitions. To help pass this bill, contact John Brown at (304)-757-3821 or firstname.lastname@example.org. Some legislators have commented that if this bill is passed, the number of signatures ought to be increased to compensate for the greater ease of petitioning. However, the number of petitions required in West Virginia (on a percentage basis) is already above the median of the 50 state requirements; it's important to let legislators know this.
ERRATA:The Jan. 6, 1999 B.A.N. chart on the Nov. 1998 vote for U.S. House contained an error. The total in the nation for "other" should have been 774,501 votes.
Other bills pending in state legislatures which are interesting are:
1. Iowa: HF 125, by House Majority Leader Brent Siegrist (R-Council Bluffs) would eliminate the "straight-ticket device" from state ballots.
2. New Hampshire: CACR 7, a constitutional amendment, would shrink the State House from 400 members to 100 members, and increase the salary of members substantially.
3. New York: S 458, by Senator Joseph Holland (R-Nanuet) would elect presidential electors by district instead of statewide. Nebraska and Maine already have similar provisions. Such provisions make it possible for a state to elect a split presidential elector ticket. Such laws were common in the 18th and 19th centuries.
At the November 1998 election, the Reform and Peace & Freedom Parties failed to poll enough votes, and were disqualified. They may requalify if they have 86,177 registered members at either the January 31, 1999 tally, or the mid-October 1999 tally. Figures for the January 31 tally will be known on February 22, 1999.
The Dec. 8, 1998 Ballot Access News carried a chart showing the number of registered members in each political party. However, the Maine data for the 1998 general election wasn't available when that chart was produced, nor was the Alaska data for the unqualified or newly qualified parties. That data is now available. Maine figures are: Democratic 296,970; Republican 268,276; Reform 17,700; Independent and miscellaneous, 350,807. Alaska new data is Libertarian 3,226; Republican Moderate 515; Taxpayers 2; Independent and miscellaneous 242,470.
The final tally for the nation for November 1998 is thus: Democratic 37,422,366; Republican 27,693,365; Indp. & Misc. 16,799,574; US Taxpayers 317,512; Reform 244,356; Libertarian 182,481; Green 118,537; Natural Law 70,032; other 424,616.
|Lib't.||Reform||US Tax||Nat Law||Green||Lib't||Refrm||USTax||NatLaw||Green|
The five parties shown above are the only parties (other than Democratic and Republican) which had State Senate candidates on the ballot in more than one state. Parties which had candidates for State Senate on the ballot in a single state were:
Conservative (New York) 318,880 votes, which was 8.84% of the vote cast in the races it entered
Right to Life (New York) 47,219 votes, 2.78%
Liberal (New York) 30,093 votes, 1.87%
Peace & Freedom (California) 26,277 votes, 7.69%
New (New York, called Working Families) 926 votes, 1.75%
Socialist (Oregon) 893 votes, 2.15%
Liberty Union (Vermont) 567 votes, 4.33%
American (Utah) 499 votes, 3.55%
Independent (Utah) 461, 1.86%
(The nine states not listed above had no State Senate elections.)
On December 1998, a meeting was held in Tuscaloosa, Alabama, to organize a political party which would work toward independence for the southern states. The party is tentatively called the "Southern Party".
The group defines "The South" to be the eleven statates which left the United States in 1861, plus Maryland, Kentucky, West Virginia, Missouri and Oklahoma. The party plans to run candidates for federal office as well as state office. For more information, contact Mike Crane at email@example.com
The European Federation of Green Parties, meeting in Paris, France on January 10, voted to recognize the Association of State Green Parties as the U.S. Green Party affiliate. This bolsters the prestige of the ASGP, and may make it possible for U.S. Greens to find consensus that the ASGP is the national organization of the Green Party.
Although Green Party candidates have been appearing on U.S. ballots since 1986, there has never been a universally-acknowledged national Green Party organization. Currently, Green Parties in 24 states are members of the ASGP. The Federal Election Commission recognizes national committees for the Democratic, Republican, Reform, Libertarian, U.S. Taxpayers and Natural Law Parties, but does now currently recognize any Green Party national committee.
Will Chipman, the Libertarian candidate for U.S. House, 2nd district of Mississippi, carried Warren County in the November 3, 1998 election. Warren County is the eleventh-largest county in the state, and contains the famous city of Vicksburg. Chipman polled 54.1% in Warren County. In the district itself, he polled 28.8% in the two-person race.
The U.S. Taxpayers Party was founded in 1990, and almost since its founding, the party has engaged in discussion about whether or not to change its name. Public awareness of the party is probably less than it would be otherwise, because so many state units of the party have different names, including American Independent, American Heritage, Constitutional, Independent American, and American Constitution. The Idaho unit of the party changed its name from "U.S. Taxpayers" to "American Heritage" last year.
On March 18-20, the National Committee of the party will meet in Seattle, to once again vote on whether to rename the party.
Two feuding factions of the Arizona Libertarian Party are still fighting each other in state court. In the latest action, a judge (prompted by the Tucson faction) ordered the state chair of each faction to call a meeting of their precinct committeemen. Zajac v Van Cleave, 330-523, Pima Co. The Phoenix faction did not comply, but has arranged for a state convention in Tucson for April 24 in hopes that both sides will attend and make peace.
Italians voters will be given a chance to vote sometime this spring on whether to change the national parliamentary elections from proportional representation to the "winner-take-all" system used in the U.S. and Canada.
Georgia will hold a special election on February 23, to fill the vacancy created when Congressman Newt Gingrich resigned. The election will be non-partisan. Any person who paid the $4,101 filing fee by January 14 will be on the ballot. Eight candidates filed, all of them associated with the Democratic or Republican Parties. If no one receives 50% of the total vote, there will be a run-off.