| This issue was originally printed on white paper. |
Table of Contents
BALLOT ACCESS RESTRICTIONS ON INITIATIVES INVALIDATED IN THREE STATES
1. Colorado: on June 11, the 10th circuit ruled that any Colorado adult resident may circulate a city initiative petition. The city of Arvada (a suburb of Denver) didn't permit non-residents to circulate city initiative petitions, but that city ordinance is now void. Chandler v City of Arvada, Colorado, 292 F 3d 1236. The vote was 3-0. The decision was written by Judge John Porfilio, a Reagan appointee, and signed by Judges Stephanie Seymour, a Carter appointee, and Tom Stagg, a Nixon appointee.
The city had argued that the City Clerk has no authority to subpoena non-residents to attend any hearing on whether a petition is invalid. But the Court noted that any circulator who feared such a hearing is always free to move outside the city, so that process already had a loophole. Also, the court said that the city is free to require that all circulators promise in advance to submit to city jurisdiction, should such a hearing ever be needed. Finally, the court noted that no such hearing had ever been held anyway.
This is the first post-Buckley precedent on whether non-residents of a city may circulate city initiatives (the 1999 U.S. Supreme Court Buckley decision had said that petitioning is protected by the First Amendment). The new City of Arvada precedent will obviously help initiative proponents. It will also help to invalidate laws that require circulators for candidates to live in the district in which the candidate is running.
2. Oklahoma: on August 15, the State Supreme Court re-affirmed its decision of November 13, 2001, that signatures on initiative petitions cannot be disqualified just because that signer's name does not appear on the state's computerized list of registered voters. In re Initiative Petition Number 365, no. 94155.
Opponents of that opinion had asked for a rehearing almost nine months ago, but that rehearing has now been denied. As a result, it appears that it will be much easier for initiatives to qualify in Oklahoma, since virtually all signatures will be presumed valid. It is not yet known if this principle will be extended to petitions to qualify a new party, or an independent presidential candidate.
3. Utah: on August 26, the State Supreme Court struck down the distribution requirement for statewide initiative petitions. Galligan v Walker, no. 02-0545. The vote was 3-2. The law had required a petition signed by 10% of the last gubernatorial vote, and had further required that percentage in at least 20 out of Utah's 29 counties.
The Court cited Bush v Gore, specifically the sentence, "Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another". The Court pointed out that a voter in Daggett County (the state's smallest county) had 1,000 times as much power over whether an initiative qualifies, as a voter in Salt Lake County. As a result of the decision, an initiative may qualify if it obtains signatures equal to 10% of the last gubernatorial vote, regardless of where the signatures are collected.
The state is still free to require a distribution requirement, as long as it uses units of equal population, such as legislative districts. States which use legislative or congressional districts are Alaska, Florida, Mississippi, Missouri and Montana.
This is the second decision to strike down county distribution requirements for initiatives, since Bush v Gore was released. The first one was in Idaho, in a case that is being appealed to the 9th circuit, Idaho Coalition for Bears v Cenarussa.
Other states with a county distribution requirement for initiatives are Arkansas, Massachusetts, Nebraska, Nevada, Ohio and Wyoming.
On August 27, Alaska primary voters defeated Question One, which provides for Instant-Runoff Voting. Unofficial results are: 35,071 yes, 62,044 no (36.1%-63.9%).
The ballot said, "This bill enacts preferential voting for state and federal elections, except Governor. Voters would rank one to five candidate choices per office. A candidate who receives a majority of first choice votes would be elected. If no candidate gets a majority vote, the candidate with fewest first choice votes is defeated. Then, remaining candidates receive the next choice votes of voters whose first choice candidate was defeated. This process continues until one candidate gets a majority of the combined votes. In a primary election, the voter may only rank candidates within one party."
Supporters believe the measure lost because the voters weren't familiar enough with the idea. The normal response by a voter to an initiative that is not clear to that voter, is to vote "no". Even in San Francisco, the first attempt to pass an alternate system lost, although a very similar measure passed a few years later, in March, 2002.
The daily newspapers in Anchorage and Fairbanks urged a "no" vote, although the Juneau newspaper endorsed the measure.
Although the Republican Party endorsed the measure, neither of the state's two Republican U.S. Senators, nor its Republican House member, endorsed it.
The vote is historic, because never before had the voters of an entire state been given the chance to adopt an alternative voting system.
On August 22, an Illinois Circuit Court ruled that a party does not lose qualified status in a legislative or congressional district, just because the boundaries of that district change. The effect of the ruling is to restore several Libertarian legislative candidates to the November ballot. Hadraba v State Bd. of Elections, 02-ce-028, Cook Co.
This is the first time political parties have ever won on this issue. Courts had ruled the opposite way in Oregon and Connecticut in 1982. The issue only arises in the few states that provide that a party (which is not qualified statewide) may be qualified in certain districts. In most states, if a party isn't qualified statewide, it can't be qualified anywhere in the state, so the issue doesn't exist. In Illinois, a party that is not qualified statewide is nevertheless qualified in any district if it polled 5% in the previous election.
On July 30, U.S. District Court Judge Beverly Martin, a Clinton appointee, reduced the number of signatures needed for minor party and independent candidates for the U.S. House, for 2002 only. Parker v Barnes, 1:02-cv-1883, Atlanta.
The only difference this decision makes is in the 11th district, where Libertarian Wayne Parker made a serious attempt to qualify. As a result of the decision, his requirement was lowered from 14,337 signatures, to 9,558 signatures. He submitted 18,000, and is still waiting to learn if the petition is valid. If so, he will be the first minor party nominee on the ballot for U.S. House from Georgia since 1940. Georgia has required petitions signed by 5% of the registered voters since 1943, and no minor party candidate for U.S. House has ever complied with that requirement.
The basis for the decision was that the state requires all signatures to be collected between early February and early August, yet the new district boundaries weren't known until early April. Since one-third of the normal petitioning period was useless, the judge cut the number of signatures by one-third.
U.S. District Court Judge Myron Thompson, a Carter appointee, will rule soon on whether to place several independent candidates on the ballot. All of them were kept off the ballot because the state changed the deadline from July 1, to June 4, and put this change into effect on May 28.
Three of the candidates were running for legislative or county office, and each of them needed 300 or 400 valid signatures. These candidates collected their signatures, but were late turning them in because of the sudden deadline change. The fourth candidate, Johnny Swanson, who is running for U.S. Senate, didn't obtain the necessary 39,536 signatures. He had planned to collect most of them at the polls around the state on primary day on June 4, but the new deadline made this impossible.
The cases are Swanson v Bennett, 02T-644-N, and Campbell v Bennett, 02T-784-N. Plaintiffs argued that it violates due process to change the deadline in the middle of the process.
At a trial on August 27, Swanson also argued that the new deadline itself is unconstitutionally early, and that the number of signatures is likewise unconstitutional. He pointed out that the state only requires 5,000 signatures for an independent presidential candidate. Since he submitted more than 5,000 valid signatures, he argues the state has no need for a higher requirement for statewide independent and minor party candidates who are running for office other than president.
ALASKA INDEPENDENT VOTER VICTORY
On August 26, an Alaska Court granted an injunction to let an independent voter vote on an initiative, even though he was not willing to vote in any party's primary. Halloran v State, 3AN-02-10420.
Alaska had thoughtlessly placed an initiative on the primary ballot, and yet had not printed up any ballots for registered independents who wanted to vote for that initiative, but who didn't want to vote in the primary election of any of the state's six parties.
The last B.A.N. reported that a U.S. District Court judge had ruled that Connecticut's law on primary ballot access is probably unconstitutional.
On August 9, the U.S. Court of Appeals, 2nd circuit, found that the lower court had made a technical error, and ruled that this year's primary (set for September 10) will proceed under the old rules. Campbell v Bysiewicz, 02-7819. However, the 2nd circuit didn't say anything about the merits of the ballot access law. The case is back in U.S. District Court for a determination of the law's constitutionality. The law bars all candidates from running in a Democratic or Republican primary, unless the candidate has at least 15% support at a party caucus.
The 2nd Circuit ruled that since the Democratic and Republican Parties support the state's primary ballot access law, the plaintiffs made a legal error by failing to sue them as well as the Secretary of State. Therefore, plaintiffs had to amend their complaint and "start over".
It is possible that, eventually, the 2nd circuit will rule that political parties have a First Amendment right of association to decide for themselves, what the ballot access requirements should be in their primaries. Courts have upheld the right of parties to decide for themselves who should vote in their primaries. But there is no precedent that the major parties in a single state can decide how to nominate candidates.
On August 26, the lower house of the California legislature passed SB 1975. If the Senate concurs with the Assembly amendments, the bill will probably become law.
The bill establishes two separate primaries, a presidential primary in March, and a primary for all other office in June. Approximately half the states already use this split system, in which there are two different primary elections in presidential years. California used this system before 1944.
On August 5, U.S. District Court Judge Raner Collins, a Clinton appointee, ruled that an Arizona election law is unconstitutional. That law forces parties to let independent voters vote in their primary. The Libertarian Party argued that it only wants registered Libertarians to vote in its primary, and the judge upheld the party. Az. Lib't. Party v Bd. of Supervisors, cv02-144, Tucson.
However, two days later, the 9th circuit stayed the decision. This means that, pending the state's appeal, the old law will remain in effect. The stay was granted because the state said that it was too late to implement the decision for this year's primary, which is on September 10.
The Democratic and Republican Parties have not taken a position on whether they want independents to vote in their primary or not.
CAMPAIGN FINANCE RESTRICTIONS OK'd
Two U.S. Courts of Appeals recently upheld severe restrictions on campaign financing:
1. Ohio: on August 22, the 6th circuit refused to grant a rehearing in Frank v City of Akron, 00-3050. The original decision had upheld campaign contribution limits as low as $100 for Akron city council candidates.
2. Vermont: on August 7, the 2nd circuit voted 2-1 to uphold expenditure limits, for candidates for state office. Landell v Sorrell, 00-9159. The result was surprising, since the U.S. Supreme Court invalidated expenditure limits in 1976 in Buckley v Valeo. Plaintiffs filed for a rehearing on August 20.
On August 22, the Natural Law Party filed a federal lawsuit against a Kansas law which says that parties must have only one word in their name. Natural Law Party v Thornburgh, 02-2390, Kansas City. The state has already indicated that it will not contest the lawsuit. No other state had such a law.
On August 2, U.S. District Court William Wilson, a Clinton appointee, refused to put the Libertarian Party on the ballot. Langguth v Priest, 4:02cv-306.
Arkansas statutory law requires a party to submit a petition signed by 3% of the last gubernatorial vote, or 21,181 signatures. The law also requires a statewide non-presidential independent to submit 10,000 signatures. In 1996 and again in 1999, another federal judge, George Howard, had ruled that since the state only requires 10,000 signatures for independents, it cannot require more signatures for new parties.
Judge Howard had also ruled that if a new party submits a petition and it lacks sufficient signatures, the state must give it another few weeks to complete the petition (this is called a "cure period"). The basis for this was that since the state permits a "cure period" for initiatives, it must provide the same for new parties. The legislature amended the law to provide for a "cure period" for new parties, but did not lower the number of signatures needed.
The Libertarian Party this year submitted 10,327 signatures. The state checked the signatures and found that there were fewer than 10,000 valid. It also refused to give the party a "cure period", and insisted that it need not follow Judge Howard's earlier ruling that only 10,000 signatures are needed.
Judge Wilson, in the new lawsuit, upheld the state's refusal to provide a "cure period". He seemed to feel that the "cure period" was only required for parties that submit a petition signed by 21,181 signatures. This isn't logical, since the 21,181 had already been invalidated in the past lawsuits. The party is appealing.
The long-awaited trial on whether petitioning should be permitted on post office sidewalks will be October 8-17 in Washington, D.C. This case was filed on June 1, 2000. Initiative & Referendum Institute v U.S. Postal Service, 1:00-cv-1246.
On August 7, the District of Columbia Court of Appeals voted to keep Washington's Mayor off the Democratic primary ballot. He will now run for re-nomination by write-in. The primary is September 10.
Anthony Williams, the Mayor, needed 2,000 signatures of registered Democrats. He hired a group of circulators who submitted many forged signatures. However, there were more than 2,000 signatures which appeared to be valid. But, because the circulators refused to answer questions about their procedures, the Board of Elections had invalidated the entire petition. Also, the Board also fined the Mayor $277,700. The Court upheld the Board. Williams v D.C. Bd. of Elections, 02-AA-854.
D.C. requires circulators to be registered voters in the District. This law is almost certainly unconstitutional, but the court did not rule on this law.
Voters in California and Colorado will vote this November on whether to permit voter registration at the polls on election day. Colorado voters will also vote on an initiative to make it easier for Democrats and Republicans to get on primary ballots.
The last B.A.N. had a chart showing how much money each party received from the check-off on state income tax forms. However, that chart omitted Iowa. Iowa results: Dem. $52,348; Rep. $48,674; Green $4,419.
Changes since the August 1 B.A.N:
1. Libertarian: on in Ill., Iowa, La., Md., N.H., N.Y., Pa.
2. Green: on in Mo. and Pa.
3. Reform: finished in New York.
4. Natural Law: removed from the Oregon ballot due to failure to meet the registration test.
5. Socialist Workers: on in D.C.
6. Marijuana Reform: finished in N.Y.
2002
SUMMER REGISTRATION TOTALS
Click Here for Chart
NUMBER
OF STATES MAKING VOLUNTARY LIBERALIZING CHANGES
Click Here for Chart
The August 1 B.A.N. had a chart, showing when (over the last 110 years) state legislatures made severely restrictive changes to ballot access laws for minor party and independent candidates.
This issue of B.A.N. has a chart on page four, showing the opposite information. It shows (again, over the last 110 years) when states voluntarily made ballot access easier. As with the earlier chart, only significant changes are included. If the deadline was improved by at least 45 days, or if the number of signatures was cut in half (or reduced even more), then the change is included. Changes caused because a court declared a law unconstitutional are not included.
The chart shows that the best 4-year period was 1997-2000. That period seems to have been better than the current period, which started in 2001. In the current period, the only significant improvements have been in Washington state (deadline for minor party and independent presidential candidates moved from July to September); and Michigan, Minnesota and Oregon (those three states made it easier for a party to remain on the ballot). Of course, the current 4-year period won't end until the end of 2004, so the current period could still end up as a good one.
AMERICA FIRST PARTY CONVENTION
The America First Party held its founding national convention in Orlando, Florida, August 8-11, and created a platform. The party had hoped that former Congressman James Traficante would address the convention, and that he would declare his membership in the party. However, he is in prison in his home state of Ohio. The party played a videotape that he made before he was imprisoned.
Linda Muller, spokesperson for the Pat Buchanan movement, declared in a mass e-mail on August 14 that "The America First Party is the new home for the Brigades!". For more information about the party, see www.americafirstparty.org. The party is not on the ballot statewide in any state this year.
This year, minor parties have been active in qualifying statewide ballot questions. The Constitution Party qualified a referendum in North Dakota, which won on June 11. It repealed a law that the legislature had passed earlier. The legislature permitted banks to sell, trade or exchange data about their customers, but the voters canceled that law.
Libertarians in three states have qualified initiatives on this year's November ballots: an Arkansas initiative would repeal the sales tax on food; a Massachusetts initiative would repeal the state income tax; a South Dakota initiative would provide that juries be informed of their common law right to judge the law as well as the evidence.
The Public Policy Institute released a poll on August 28 showing that the Green Party and the Libertarian Party candidates for California Governor are each at 4%.
The Socialist Workers Party has been exempt from reporting its campaign contributors, or its expenditures, since 1982. However, its federal exemption runs out at the end of this year. The party has asked the FEC to extend it.
For many years, Bob Bickford, a software designer in Washington state, did all the work of putting back issues of Ballot Access News on the web. He never asked any payment for this work. He died at the end of July. B.A.N. expresses sorrow at his death, and gratitude for his help.
B.A.N. also wishes to thank others whose labor helps make this newsletter possible: Tim Brace, Chet Chin, Eric Garris, Frescia Haddad, David C. Johnson, Jon Kalb, Jack & Shirley Kunz, Jerry Kunz, Mike Long, Tim Thornburn, Henry Tran, "anonymous", and all the people who furnish information to the editor.