| This issue was originally printed on cream paper. |
On February 28, the U.S. Supreme Court ruled in Cook v Gralike, no. 99-929, that states have no authority to discriminate against any class of candidates for Congress. The decision is unanimous. Justice John Paul Stevens wrote for the court; Justices Anthony Kennedy and Chief Justice William Rehnquist each wrote separately. All three opinions emphasize that the states simply to not have the right to pass any election law which disfavors any particular class of candidates for Congress.
The particular issue in this case was a Missouri law (passed by the voters), which mandated a particular kind of ballot label. That label, "Disregarded Voters' Instructions on Term Limits", was to be printed on the ballot next to the names of incumbent members of the state legislature and Congress who had failed to work for a constitutional amendment for congressional term limits.
Justice Stevens wrote for the Court, "The Framers understood the Elections Clause (the part of the Constitution giving the states the authority to write election laws for congressional elections) as a grant of authority to issue procedural regulations, and not as a source of power to... favor or disfavor a class of candidates... The Missouri law bears no relation to the 'manner' of elections, for in our view that term encompasses matters like notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns. The adverse labels handicap candidates at the most crucial stage in the election process -- the instant before the vote is cast... The labels surely place their targets at a political disadvantage to unmarked candidates for congressional office."
"Thus, far from regulating the procedural mechanisms of elections, the Missouri law attempts to dictate electoral outcomes. Such regulation of congressional elections simply is not authorized by the Elections Clause."
Kennedy's concurrence says, "A state simply lacks the power to impose any conditions on the election of Senators and Representatives, save neutral provisions as to the time, place and manner of elections... Missouri seeks to handicap those who seek federal office by affixing pejorative labels next to their names on the ballot... For this reason, the law is void."
Rehnquist, who concurrence was also signed by Justice Sandra O'Connor, wrote, "The result is that the State injects itself into the election process at an absolutely critical point -- the composition of the ballot, which is the last thing the voter sees before he makes his choice -- and does so in a way that is not neutral."
The decision will certainly help win the cases now pending, or about to be filed, in Virginia, Louisiana and Ohio, over state laws which grant party labels to some candidates and not others. The decision ultimately may also be used against states with extreme ballot access barriers for non-major party candidates, especially Georgia, where no minor party candidate has ever been able to qualify for U.S. House of Representatives during the entire 58-year history of the law.
The decision may also help lawsuits which challenge unfair placement of candidates on the ballot, a problem in New York and New Jersey.
Unfortunately, the Cook decision came just 5 days too late to influence the 6th circuit's opinion in the Schrader ballot labels case. See that story below.
On February 20, the U.S. Supreme Court refused to hear the appeal of the Illinois Attorney General, in Krislov v Rednour, no. 00-923. This means that the favorable 7th circuit ruling will stand. The 7th circuit had said, back on September 5, 2000, that any adult may circulate a petition to get a candidate on the Illinois ballot, even someone who lives out-of-state. State law had said that only a resident of a particular district could circulate a petition to get someone on the ballot in that district.
Illinois has no procedure for a party to qualify itself by petition; the state only has procedures for candidate petitions. Any party that didn't poll 5% for Governor at the last gubernatorial election, must submit separate candidate petitions for each of its U.S. House and state legislative candidates, equal to 5% of the last vote cast. This petitioning burden, hundreds of thousands of signatures for parties wishing to run a full slate for those offices, remains very difficult. However, thanks to the Krislov decision, the parties can now hire anyone to do the petitioning, without regard to where the petitioner lives.
The U.S. Supreme Court rarely turns down a state request, to hear a ballot access appeal. This was the first time since 1981 that any state had asked the U.S. Supreme Court to review a ballot access decision, in which that Court had said, "No". Throughout U.S. history, only six times has that Court turned down such a state request. The other five instances were from Maryland in 1981, from Arkansas and Nebraska in 1977, from Illinois in 1975, and from New York in 1970. They all dealt with petition deadlines, or with county distribution requirements for statewide petitions.
On February 23, the 6th circuit reversed two U.S. District Courts, and said that Ohio may refuse to print partisan labels for candidates who qualify for the November ballot by petition. Schrader v Blackwell, 00-3044. The decision effectively reverses Nader v Blackwell as well.
The decision is signed by Judges Ronald Gilman and Martha Daughtrey, Clinton appointees; and John Heyburn, a Bush appointee. Gilman and Daughtrey had also been on the Nader panel last year, in which that panel had stayed a lower court order that Ralph Nader should have "Green" next to his name on the ballot.
Ohio has a very difficult petition procedure for new parties to get on the ballot; in some years, more than 50,000 valid signatures are required, and the signatures are due in November of the year before the election.
By contrast, the independent candidate petition procedures only require 5,000 signatures for statewide candidates, and are never due before March of an election year. Because the independent procedures are so much easier than the new party petition procedures, 90% of the time minor parties use the independent candidate procedures. However, if an unqualified party uses the independent petition procedure, the state won't print any partisan label for that candidate other than "independent", even if the petition had identified him or her as the nominee of a particular party.
The 6th circuit decision is short, and merely says that the state is free to regulate political parties. It doesn't address the strongest argument made by the plaintiffs: the existing policy discriminates against voters who desire to support a particular minor party, but who aren't well-informed enough to know who that party's candidates are. For example, the plaintiff, James Schrader, who ran for U.S. House in 1998, certainly would have lost the votes of people who desire to vote for Libertarians but who didn't know he was the Libertarian nominee... except the U.S. District Court in 1998 had ordered the state to print "Libertarian" next to his name.
Equal protection requires that if Democratic voters and Republican voters have the assistance of having their party's candidates listed by party, then the Libertarian voters ought to have the same voting assistance.
Schrader and the Libertarian Party have asked for a rehearing before all twelve of the full-time judges of the 7th circuit. The attorney for the companion Green Party case is assisting. Obviously, the brand-new Cook v Gralike ruling from the U.S. Supreme Court will be cited.
During February, two different federal courts came to different conclusions on the question of who may circulate an initiative petition. On February 8, a U.S. District Court in Colorado ruled that it is unconstitutional for a city to provide that only city residents may circulate an initiative petition to change a city ordnance. Chandler v City of Arvada, 00N 342. The decision is by Judge Edward Nottingham, a Bush Sr. appointee.
However, on February 15, the 8th circuit upheld a North Dakota law, saying only North Dakota residents may circulate an initiative petition. Initiative and Referendum Institute v Jaeger, 99-3434. The decision also upheld another state law, banning the practice of paying people to collect signatures, if they are paid by the signature (they must instead be paid per hour worked). The judges were Gerald Heaney, a Johnson appointee; and Kermit Bye and Diana Murphy, Clinton appointees.
The judges wrote that if a petitioner commits fraud, it is more difficult to prosecute an out-of-state resident. Of course, that logic would justify preventing out-of-staters from selling products, or serving as consultants; but a law to prevent out-of-staters from such activity would be considered a violation of either the First Amendment, or the Interstate Commerce Clause, or both. The plaintiff has asked for a rehearing before all the judges of the 8th circuit.
1. national: on February 8, a U.S. District Court in Massachusetts refused to dismiss Ralph Nader's lawsuit against the Commission on Presidential Debates, for barring him from the audience at the first presidential debate, even though he had a ticket. Nader v Commission, 00-12145. There will be a trial next year. Also, Nader has asked the U.S. Supreme Court to hear his lawsuit over whether the Commission on Presidential Debates may accept tax-exempt contributions. Nader v FEC, 00-1244.
2. Arizona: on March 7, at 2:15 p.m., in courtroom 2, the State Court of Appeals in Phoenix will hear Arizona Libertarian Party v Schmerl, 1ca-cv-00-335. This is to decide whom the party officers are.
3. California: the State Supreme Court will hear Griset v FPPC, S077219, on March 7. The issue is whether the state may criminalize mass anonymous campaign literature.
California (2): briefs are being submitted in the State Court of Appeals, in Edelstein v Fado, A93007. This issue is whether San Francisco permits write-in candidates to file a declaration of write-in candidacy in city run-off elections.
4. Colorado: On February 23, Colorado asked the U.S. Supreme Court to hear Davidson v Campbell, no. 00-1358, over whether a state can require a candidate for Congress to be a registered voter.
5. Minnesota: the decision of the State Supreme Court, denying Pat Buchanan's request to prevent John Hagelin from using the label "Reform" on the 2000 ballot, is now reported. Scofield v Kiffmeyer, 620 NW 2d 24. Buchanan had petitioned under the "Reform Party Minnesota" label; Hagelin had used "Reform Party". The Court had allowed both labels to appear on the ballot on September 27, but had not explained its decision until recently. It said that voter confusion was not a problem, and since those labels had appeared on the petitions, it would be wrong to change them on the ballot.
6. New York: on January 23, the 2nd circuit heard Van Wie v Pataki, 00-7379. State law lets a newly-registering voter join a political party as late as 25 days before a primary; but an already-registered independent voter cannot vote in a primary unless he or she enrolls in that party in the year before that primary. The plaintiff argues that this denies independent voters equal protection. One of the three judges seemed supportive of the case; another judge did not; the third judge said little.
7. Utah: a 3-judge U.S. District Court will hear State of Utah v Evans, 2:01-cv-23B, on March 20. This is the case over whether Utah or North Carolina should get an additional seat in the U.S. House of Representatives. The Census counts U.S. citizens living overseas only if they are military or civilian U.S. employees; Utah argues that the Census should count all overseas citizens.
On February 13, Nebraska Governor Mike Johanns signed LB 252, which lets voters cast a write-in vote for president. Nebraska has had government-printed ballots since 1891, and never before has it permitted write-in votes in November for president, even though it has always permitted them for other office. Neal Erickson, state Director of Elections, deserves credit for this change.
SB 7, which moves the independent presidential candidate petition deadline from June to August, passed the legislature on February 20. Credit for SB 7 goes to the Nader campaign, which won a court decision last year against the June deadline, as applied to presidential candidates.
An alternate bill, HB 1011, which would have moved the deadline for all independent candidates from June to August, was defeated in the House on January 31 by 20-46. HB 1011 also would have made it somewhat more difficult for certain minor party candidates to obtain a place on their own party's primary ballot.
The last B.A.N. listed eleven states in which bills are pending, to elect a single presidential elector from each congressional district (so that a state could have a split electoral delegation). Since then, the Colorado and Indiana bills have each passed one house of the legislature (the Colorado bill, if passed, wouldn't take effect unless the voters vote for the idea in 2002). In addition, there are now at least seven more states with such bills:
1. Connecticut: HB 5124
2. Maryland: HB 577
3. Michigan: HB 4149
4.
New Mexico: SB 746
5. Oklahoma: SB 668
6. Oregon: HB 2650
7. Tennessee:
HB 1, SB 1853
Idaho and Virginia recently passed resolutions calling on Congress to keep the Electoral College.
The Secretary of State of Idaho is backing H 206, which would provide that general election ballots no longer list the names of the presidential elector candidates. Only a handful of states still list candidates for elector on the ballot.
The last B.A.N. also noted bills pending in five states which don't change the method of electing electors, but which provide that electors must vote for their party's presidential nominee. The Arizona bill, HB 2074, has passed the House. Also, a similar bill (HB 411) now exists in still another state, New Hampshire.
The last B.A.N. mentioned that bills to outlaw fusion exist in New York and South Carolina. Since then, similar bills has been introduced in Connecticut, SB 614 and HB 5198.
John Brown, Secretary of State of Kentucky, has asked the legislature to change voter registration procedures, so that if a voter registers into a minor party, that registration would be tallied. It would then be possible for minor parties to know who their members are. The bill is HB 327.
The movement to introduce alternate forms of voting seems stronger than it has been in at least 75 years, judging from the number of states with bills to adopt, or to study, Instant-Runoff Voting in federal and state elections:
1. California: AB 1515
2. Hawaii: SB 1270
3. Maine: LR 1256
4.
Maryland: SB 233
5. Massachusetts: H3281
6. Minnesota: HB 327
7. New
Mexico: SJR 25
8. Vermont: S94, H175
9. Washington: SB 5338 and SB
5006
The California bill only applies to special elections, but its sponsor is the Speaker of the Assembly. The Massachusetts bill calls for study of IRV; the other bills would actually implement it. In addition to these bills, the voters of Alaska will be voting on the idea next year.
USA Today editorialized in favor of IRV on February 5. The Center for Voting and Democracy (the national organization which is coordinating the movement for alternate voting systems) is co-sponsoring an Electoral Reform Conference at Stanford University, Palo Alto, California, on March 3, between 9:30 am and 3 pm. For more information, see www.calirv.org/meetings/mar3.htm, or telephone Nancy Couperus at (650)-941-4808.
On February 12, Eliot Spitzer, Attorney General of New York, released a report detailing his analysis of problems with New York state election law. The report calls on the legislature to cut in half the number of signatures needed for ballot access for candidates. It also asks the legislature to eliminate the old mechanical voting machines. New York's mechanical voting machines present the most confusing layout of any state's ballot; many voters can't even find the names of candidates of the unqualified parties, since frequently the unqualified parties are forced to share a single column or row.
Since the last B.A.N., bills to ease ballot access have been introduced in six more states, and bills to make access more restrictive have been introduced in four states. The liberalizing bills are:
1. Alabama: HB 185, by Rep. Bob McKee, would lower the vote test for a party to remain on the ballot from 20%, to 10%. The Libertarian Party is working very hard for this bill. It had one statewide candidate who polled over 20% last year, although he polled less than 20% of the number of people who cast a ballot. The existing law is ambiguous as to how the percentage should be calculated. As a result, no one knows if the party is qualified or not. However, if the bill passes, it clearly will be qualified. If the bill doesn't pass, the party will seek an Attorney General's Opinion.
2. Arizona: HB 2597, by Rep. Edward Poelstra, would make it easier for a party to remain on the ballot. Currently, a party with less than two-thirds of 1% of the voter registration, must poll 5% for president or Governor every two years, to remain on the ballot. The bill would change that vote test to any statewide office. If it passes, it will keep the Libertarian and Green Parties on the ballot automatically for 2002, even if their autumn 2001 registration tally is below two-thirds of 1%. This is because both parties polled over 5% for U.S. Senate in 2000.
3. Massachusetts: H3085, by Rep. Stephen LeDuc, makes it easier for a party to remain on the ballot. Currently, a party must poll 3% for a statewide office every two years. This is fairly easy to do in a mid-term year, when at least 5 statewide partisan races are on the ballot; but it isn't so easy in presidential years, when nothing but president may be on the ballot (or, sometimes, U.S. Senate is also on).
4. Nebraska: LB 805, backed by the Secretary of State, clarifies that any type of petition may be circulated by any adult, regardless of where he or she lives.
5. North Carolina: SB 10, by Senator Wib Gulley, reduces the number of signatures for statewide independent candidates from 2% of the number of registered voters, to 2% of the last vote for Governor. This would decrease the number required by almost 50%. The bill also changes the independent candidate deadline from June to July; changes the new party petition deadline from May to July; and eliminates the wording on the new party petition which says that the signers are organizing that party. Finally, it lets voters remain registered into a party, even after it is disqualified from the ballot.
Senator Gulley had hoped to also lower the number of signatures for new parties, but that has idea has been omitted from the bill in order to help it pass. For 2002, existing law requires new parties to submit 58,842 valid signatures. Only California and Oklahoma require more signatures.
6. Oregon: SB 777, by Senator Gary George, makes it easier for a party to remain on the ballot. Currently a party must pass two tests: a vote test of 1% for any statewide race; and a registration test, of one-twentieth of 1%. The bill provides that a party with registration of at least one-half of 1%, need not comply with the vote test. Currently, the only minor party with registration of .5% is the Libertarian Party, but the Green Party expects to hit that level soon.
Restrictive Bills
1. Kentucky: HB 162, by James Comer, a Republican, moves the minor party and independent candidate deadline from August to May (although the deadline for presidential candidates would remain unchanged). The bill originally set the deadline in January, but the sponsor amended his bill when he was told that a similar deadline in Kentucky had been held unconstitutional in 1991.
If the bill passes, it is possible that it would be held unconstitutional. May and June deadlines for non-presidential independents have been voided by courts in Alaska and Massachusetts, although they have been upheld in Arkansas and West Virginia.
2. Maine: LD 1034, by Rep. Deborah Simpson, a Democrat, would move the non-presidential independent candidate petition deadline from late May, to March 1. This bill is unlikely to pass, since Maine's April 1 deadline for non-presidential independents was held unconstitutional in 1984. Activists plan to mention the lawsuit precedent, when the bill is heard in Committee.
3. New York: A4337, by Assemblyman George Winner, a Republican, would change the definition of "party" from a group which polled 50,000 votes for Governor, to 150,000 votes for Governor. New York currently has six qualified parties in addition to the Democratic and Republican Parties. If the bill were to pass and be implemented immediately, it would disqualify all of them, except for the Independence and Conservative Parties.
4. South Carolina: H 3370 would require candidates to pay large filing fees, if they were nominated in convention. Currently, there are no filing fees in South Carolina, except for candidates seeking a place on a primary ballot. The major parties usually nominate by primary, but the minor parties always nominate by convention. Therefore, the effect of the bill would be impose filing fees on minor party candidates. The fees would be 1% of the salary of the office for its entire term; thus a fee for U.S. Senator is 6% of the annual salary (since the term of office is 6 years). The bill has 118 co-sponsors in the House; there are only six House members who didn't co-sponsor the bill. Nevertheless, the minor parties are fighting the bill.
HB 1690, which would have made it possible for the candidate of a new party to have his or her party label on the Virginia ballot, was defeated in the House on February 4. As a result, the ACLU plans to file a lawsuit against the current policy, which permits Democratic and Republican candidates to have a party label, but requires all other candidates to be labelled "independent" on the ballot.
| # SEATS UP | Libt. | Nat Law | Green | Reform | Consti | other parties | |
|---|---|---|---|---|---|---|---|
| Alaska | 10 | 2,091 | Republican Moderate 3,099 | ||||
| Arizona | 30 | 39,130 | 3,194 | ||||
| Arkansas | 17 | ||||||
| California | 20 | 162,345 | 61,528 | ||||
| Colorado | 17 | 46,982 | 2,335 | ||||
| Connecticut | 36 | 3,013 | 3,139 | 899 | |||
| Delaware | 11 | 138 | |||||
| Florida | 20 | 36,629 | |||||
| Georgia | 56 | ||||||
| Hawaii | 11 | 411 | |||||
| Idaho | 35 | 5,197 | 600 | 5,095 | 6,345 | ||
| Illinois | 22 | ||||||
| Indiana | 25 | 21,586 | |||||
| Iowa | 25 | ||||||
| Kansas | 40 | 914 | |||||
| Kentucky | 19 | 1,029 | |||||
| Maine | 35 | 1,864 | |||||
| Massachusetts | 40 | 42,030 | |||||
| Minnesota | 67 | 7,078 | Independence 29,534 | ||||
| Missouri | 17 | 7,815 | 3,287 | ||||
| Montana | 25 | 800 | 1,330 | ||||
| Nebraska | 25 | ||||||
| Nevada | 10 | 7,018 | 8,751 | 610 | 2,287 | ||
| New Hampshire | 24 | 3,794 | |||||
| New Mexico | 42 | 5,534 | 7,638 | ||||
| New York | 61 | 39,528 | Right-to-Life 45,250; Liberal 32,183; Conservative 225,278; Independence 112,581; Working Families 48,799 | ||||
| North Carolina | 50 | 38,851 | |||||
| North Dakota | 24 | ||||||
| Ohio | 17 | 89,944 | 19,163 | ||||
| Oklahoma | 24 | 698 | |||||
| Oregon | 15 | 1,208 | 7,074 | 5,892 | Socialist 4,099 | ||
| Pennsylvania | 25 | 10,405 | 4,405 | 2,460 | |||
| Rhode Island | 50 | 1,791 | |||||
| South Carolina | 46 | 2,456 | 9,498 | ||||
| South Dakota | 35 | 2,345 | 2,240 | ||||
| Tennessee | 17 | 7,582 | |||||
| Texas | 15 | 81,653 | |||||
| Utah | 14 | 1,218 | 145 | Independent American 7,869 | |||
| Vermont | 30 | 6,400 | Progressive 4,645; Liberty Union 624 | ||||
| Washington | 26 | 37,582 | 2,774 | ||||
| West Virginia | 17 | 2,885 | |||||
| Wisconsin | 16 | 7,278 | |||||
| Wyoming | 15 | 387 | |||||
| TOTAL | 1,176 | 640,354 | 97,536 | 70,356 | 45,455 | 34,597 |
States not named had no State Senate elections in November, 2000. In the case of states with multi-member State Senate districts, the totals above only include a party's highest candidate in such a district, not the total of all the party's candidates in that district. For a sheet that shows each entry above, translated into the percentage of the total vote cast (in the districts in which that party had candidates in that state), send a self-addressed stamped envelope to B.A.N.
Four years ago, national totals for State Senate candidates for minor parties were: Libertarian 189,128; Natural Law 145,087; Reform 140,124; Constitution (then called US Taxpayers) 43,249; Green 12,851; Conservative 337,417; Liberal 63,224; Right to Life 43,717; Freedom 31,173; Peace & Freedom 20,601; Harold Washington Party 13,812; A Connecticut Party 7,554; Independent American of Utah 6,643; Cool Moose 6,256; Socialist 5,055; Grassroots 2,389; Liberty Union 1,344.
On February 17, the Greens/Green Party USA held a national committee meeting in St. Louis, to discuss the proposal of the Association of State Green Parties for combining the two groups. The Greens/Green Party USA meeting did not resolve the matter, but it probably will be resolved at the group's Congress, at the end of May. That meeting will probably be in Chicago.
The Reform Party's constitution requires it to hold a national convention every year. This year's meeting will be in Cincinnati, Chicago, Indianapolis or Nashville, in late July or early August. An election will be held for national chair. The exact date, and the site, will be chosen in a few weeks.
The Reform Party is the only party, other than the major parties, which has announced candidates in both of the special congressional elections this spring. In the California 32nd district, the party's candidate is Ezola Foster, who ran for vice-president last year; the election is June 5. In Pennsylvania's 9th district, the party's candidate is John Kensinger; the election is May 15.
The Libertarian Party is finished in Nebraska, and two-thirds done in North Carolina, and one-fifth done in New Mexico. No petitioning is going on in Michigan, since the party has some hope that the law can be changed, so that no petitioning will be needed.
The Green Party of Kansas, which had collected 5,000 signatures to qualify as a party, has abandoned the drive (the law requires that all 14,854 signatures be collected within six months), since it appeared impossible to finish the drive by the mid-March deadline.
The Constitution Party is about to start in Montana.
The Peace & Freedom Party of California has hired six paid workers to get more registrations for its drive to get back on the ballot. It had lost its spot on the ballot in November 1998.
On December 27, 2000, Lyndon LaRouche announced that he will compete for the Democratic presidential nomination in 2004. He has sought that nomination in all elections, starting in 1980. His organization received a morale boost in December, 2000, when the last of his fund-raisers from his 1988 campaign were paroled. They had been convicted of "securities fraud" for soliciting loans to his campaign, and been sentenced to extraordinarily long terms from a Virginia court; one of them, Michael Billington, had been sentenced to 77 years, and had served 9 years.
A group called "Voter March" is planning a Voter Rights March at Lafayette Park and the Mall in Washington, D.C., on May 19. The purpose of the march is to call for electoral reforms. For more information, telephone (212)-685-2848, or see http://www.votermarch.org/. A preliminary meeting to plan the march is being held in New York on March 3, at TRS Professional Suites, 44 E. 32nd St. (between Park Ave. South and Madison Ave.), 11th floor, room 7.
On January 20, the Green Party of Texas appeared to have won its first election. In a non-partisan election to elect two directors of the Upper San Marcos Watershed District (Hays County), a write-in Green Party member, John D. Schmidt, had 95 votes. He was allied with another write-in candidate who polled 91. The two incumbents, the only candidates listed on the ballot, trailed with 87 and 86 votes.
However, a recount was held, and the recounters eliminated all write-in votes in which "John Schmidt" was not spelled correctly, disqualifying votes for "John Smidt", "John Smicht", "Jon Schmidt", etc. This resulted in an amended set of election returns, showing that Schmidt had lost by one vote. According to a century of Texas precedent, however, write-in voters need not use perfect spelling, if their intent is clear. Schmidt filed a lawsuit on February 23 to overturn the results of the recount.