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Table of Contents
11th
CIRCUIT UPHOLDS GEORGIA LAW
PANEL
RUSHES DECISION IN 6 DAYS; IGNORES EVIDENCE
UPDATE: October 18, 2002: On October 18, the 11th Circuit refused to grant a rehearing in Cartwright v Barnes.
On September 5, the U.S. Court of Appeals, 11th circuit, released its decision in Cartwright v Barnes, 02-10670, upholding Georgia ballot access for minor party candidates for the U.S. House of Representatives.
The decision was released six days after the oral argument. There was no reason for the rush; usually decisions take from two to six months, unless there is an emergency.
The decision is only two pages. However, even two pages is enough to show that the panel didn't even know what the Georgia law is. The decision erroneously says that Libertarians in Georgia need to petition for their statewide candidates, and that the statewide petition is 1% of the number of registered voters, and the Libertarians aren't challenging that 1% petition.
Actually, Libertarians in Georgia do not need to petition for statewide office. The party is ballot-qualified in the state, but only for statewide offices. The party has this status because it consistently meets the 1% vote test. The judges, in their summary of the law, didn't even know that Georgia has a 1% vote test; they only mentioned the 20% vote threshold, which determines which parties have ballot status for district and county office as well as statewide office.
The point is important, because the party's success in meeting the vote test demonstrates that its nominees in general have already shown a "modicum of support". Therefore, for their nominees, no petition should logically be required.
The panel did not mention the key fact that the Georgia petition requirement is so difficult, it has existed since 1943 and has never been met by a minor party candidate for U.S. House. The panel commented on this at oral argument, but chose to omit it from the decision.
The panel also did not mention the evidence that Georgia's convoluted congressional district boundaries make petitioning unusually difficult. This evidence was also discussed at the oral argument, but, again, the judges omitted it from the decision.
The only point the decision does discuss is whether a ballot access law that (according to the evidence) is not needed for orderly election administration, is a "qualification" or a "procedure". Under Article One of the original U.S. Constitution, states cannot add to the "qualifications" listed for Congress. Plaintiffs acknowledge that a modest ballot access hurdle is a "procedure", but argue that if the evidence shows that a discriminatory ballot access hurdle is not needed for election administration, then it is not a "procedure".
The uncontradicted evidence showed that Georgia has an average of fewer than two candidates for U.S. House on its general election ballots, so obviously the law isn't needed to prevent the ballot from being too crowded. In the average district, 14,846 valid signatures are required, and there are no instances at which any minor party or independent candidate has ever successfully met a signature hurdle that high, for that office, in U.S. history.
The judges did not acknowledge this evidence. They merely asserted that a petition requirement is always a "procedure".
If the proponents of term limits for Congress had passed an initiative, providing that three-term members of Congress could not get on the ballot without a petition signed by 5% of the registered voters; and yet at the same time providing that other candidates could get on the ballot with just a filing fee, such discriminatory treatment would be held unconstitutional. This is obvious, given the U.S. Supreme Court's February 2001 decision in Cook v Gralike.
Cook v Gralike said that states cannot discriminate against a class of candidates for Congress. In that case, the Court unanimously struck down a Missouri law that gave unfavorable ballot labels to some candidates for Congress, but not others. Candidates who had not supported a constitutional amendment for term limits for congress would have "disregarded voters' instructions" printed on ballots next to their names. Candidates who did support the amendment would have no such damaging label.
How did the 11th circuit distinguish Cartwright v Barnes from Cook v Gralike? A footnote says the idea that Cook applies to this case is "frivolous", but doesn't say why.
The judges also didn't mention that the U.S. Supreme Court has twice said that "there is no litmus test" to determine whether a ballot access law is constitutional or not, and that lower courts must examine the evidence. In this case, although affidavits were filed with the U.S. District Court, that Court refused to allow a trial. The Court of Appeals found no fault in the denial of a trial.
The 11th circuit also failed to mention that the U.S. Supreme Court has twice said that ballot access laws that are rarely used are probably unconstitutional.
The decision is unsigned, but it will be published. The three judges on the panel are John Gibson, a visiting judge from Missouri and a Reagan appointee; Peter Fay, a Ford appointee from Florida; and Frank M. Hull, a Clinton appointee from Georgia. Judge Hull is a woman (notwithstanding her first name, which misleads many people into believing she is a man) and has the reputation of being the most liberal judge on the 11th circuit.
On September 12, a rehearing was requested. If that fails, U.S. Supreme Court review will be sought.
Wayne Parker, the only minor party or independent candidate who tried to get on the ballot in Georgia this year for U.S. House, was told on September 12 that he doesn't have enough valid signatures, even though he submitted twice as many as needed. However, the state is re-checking. The first tally showed him 1,116 signatures short.
Parker, a Libertarian, was not required to get the full 5% that is normally required for everyone except Republicans and Democrats. Because redistricting was late this year, a federal court had reduced the requirement for this year only to 3.3%.
On August 30, U.S. District Court Judge Myron Thompson, a Carter appointee, issued an injunction putting two independent candidates on the November ballot. However, he refused any relief to a third candidate. Swanson v Bennett, 02T-644-N.
The two candidates who won relief were running for state house and sheriff. They had gathered the needed number of signatures (3% of the last gubernatorial vote in their districts), but had submitted them late. They won because the judge ruled that it violates due process for the state to change the deadline during the petitioning period. The state had moved it from July to June, and had done so on May 28.
The candidate who did not get relief, Johnny Swanson, was running for U.S. Senate. He did not complete his petition, which needed 39,536 signatures. He argued that he planned to finish it, by having circulators at the polls on primary day, but the date change made this impossible. However, the judge seemed to feel that the 3% petition is probably constitutional, and wouldn't comment on the constitutionality of the new deadline. So Swanson got no relief, and will now campaign for write-in votes.
Swanson's attorneys will still attempt to persuade the judge that the 3% petition, and/or the new June deadline, is unconstitutional, but that part of the lawsuit won't be settled until next year.
On September 6, U.S. District Court Judge Sterling Johnson, a Bush Sr. appointee, struck down a New York ballot access restriction. That law says if someone is circulating a petition to place a candidate on a primary ballot, the circulator must be a member of the party which is holding that primary. Kaloshi v New York City Bd. of Elections, 02-4762, Brooklyn. The plaintiff-candidate was a Democratic candidate for State Senate, but he lost the primary.
The court relied on the 1999 U.S. Supreme Court precedent Buckley v American Constitutional Law Foundation, which said that petitioning is protected First Amendment activity. The state is appealing.
The precedent (assuming it stands) will be influential in Pennsylvania, if anyone sues in that state. Pennsylvania has a similar requirement.
On September 6, an independent candidate for U.S. Senate, Paul DeLaney, filed a lawsuit against the number of signatures he needs. Statewide independent candidates need a petition signed by 2% of the number of registered voters, whereas new parties need a petition signed by 2% of the last gubernatorial vote. The difference is approximately 99,000 signatures for independents, versus 58,000 for new parties. DeLaney v Bartlett, 1:02-cv-741, Greensboro.
On September 19, U.S. District Court Judge Frank Bullock, a Reagan appointee, refused to put DeLaney on the ballot. He said that DeLaney had not shown he has a modicum of voter support. However, he hinted that the number of signatures for a statewide independent candidate is unconstitutional. It's clearly irrational for a state to require more signatures for a single independent candidate than for an entire new party. The constitutional question will be settled next year.
COFOE (the Coalition for Free & Open Elections) raised the money for this lawsuit. COFOE thanks its members. Membership dues are the only income COFOE has.
On September 6, the 8th circuit refused to issue an injunction putting the Libertarian Party on the Arkansas ballot. Langguth v Priest, 02-3123. As a result, Arkansas is one of only four states with no statewide minor party or independent candidates on the ballot this year (the others are North Dakota, Kentucky and West Virginia; also there are two states that don't hold any statewide elections, Utah and Washington).
The judges didn't explain their action. They were Pasco Bowman and Roger Wollman (Reagan appointees) and Kermit Bye (Clinton). The issue was whether parties are entitled to a "cure period" to get more signatures, if the original petition is insufficient.
In the future, minor parties which want to get on the Arkansas ballot must submit 10,000 valid signatures by the May deadline.
On August 27, U.S. District Court Judge Richard Vollmer, a Bush Sr. appointee, struck down part of a federal campaign law. Nat. Fed. of Republican Assemblies v USA, 00-759, Mobile, Alabama. He ruled that the federal government may not require political organizations with income of more than $25,000 per year to reveal all their expenditures, as a condition of being free from having their income taxed. "Political organizations" are groups which try to influence elections without expressly advocating the election or defeat of any candidate. The definition includes many state units of minor parties.
The judge upheld the part of the law requiring disclosure of contributors, but only if those contributions are spent to influence federal elections, not state or local elections. The law is §527(j) of the IRS code.
Plaintiffs are the National Federation of Republican Assemblies, the Alabama Republican Assembly, the Libertarian Party national committee, and the Howard Jarvis Taxpayers Association. The government is appealing. In the meantime, only the plaintiff organizations may enjoy the benefit of the ruling.
All states except Utah and Washington have statewide races. Here is the status of whether non-major party candidates are being allowed to debate their major party opponents. It is, of course, subject to change. It is believed to be accurate as of Sep. 26.
D.C. VOTERS REBUKE U.S. SUPREME COURT
In the Democratic primary for Mayor of Washington, D.C., held on September 10, 91.2% of all the votes cast were write-ins. Incumbent Mayor Anthony Williams received 61,848 write-ins (66.2% of the total) and was renominated. His chief opponent, Willie Wilson, received 20,689 write-ins. Of the four candidates whose names were on the ballot, none received more than 5.8%.
In 1992 the U.S. Supreme Court ruled that nothing in the U.S. Constitution protects the right of a voter to cast a write-in vote. Justice Byron White wrote that if write-ins were permitted, governmental stability would be endangered. Although Byron White is no longer living, five other justices, all of whom are still on the Court, signed his opinion.
That decision, Burdick v Takushi, has had no influence on policy. No state has abolished write-in space on ballots since the decision came out. Ironically, two states (Nebraska and Virginia) that didn't permit write-ins for president in 1992, now do so, because those two state legislatures expanded write-in voting. Nobody believes that permitting write-ins is a danger to "stability".
The truth is that if write-ins had not been permitted in D.C. elections, stability would have been jeopardized. The Mayor is very popular, and a ban on write-in votes would have made it impossible for the voters to vote for the candidate favored by most voters.
The Republican primary was also won by Williams on write-ins. However, D.C. law forbids him from accepting the nomination of both parties.
In the Massachusetts Democratic primary on September 17, a write-in candidate, David Magnani, was nominated for State Senator.
Changes since the Sep. 1 B.A.N:
1. Reform: its statewide New York petition failed.
2. Marijuana Reform: its statewide New York petition succeeded.
RECENT MINOR PARTY PRIMARY RESULTS
1. Arizona: the only ballot-qualified minor party, the Libertarian Party, had a contested primary for Governor. The results: Barry Hess 1,414; Gary Fallon 1,358.
Registered independents were permitted to vote in this primary, over the objection of the party, which wants only registered Libertarians to vote in its primary. The party won on this issue in U.S. District Court, but the 9th circuit had stayed the decision. When the 9th circuit hears the case, the party will be in a stronger legal position, since with a primary this close, it is obvious that registered independents made the difference.
2. Minnesota: 8.6% of all the votes cast in the state's open primary for Governor were cast in the Independence Party's primary. By contrast, 4 years ago, only 2.6% of all the votes cast for Governor in the primary were cast in the Independence primary. This result bodes well for Tim Penny, the former Democratic congressman who is the party's candidate for Governor to replace Jesse Ventura. Penny is slightly ahead of his Democratic and Republican opponents in general election polls.
The Green Party primary attracted 1.3% of the primary voters. In the U.S. Senate race, Ray Tricomo polled 3,438 to Ed McGaa's 2,567.
3. New York: Tom Golisano defeated the state's incumbent Governor, George Pataki, for the Independence Party gubernatorial nomination. The vote was 9,572 to 9,076. Golisano helped form the party in 1994 and plans to spend as much of his own personal fortune as it takes to win the general election.
4. Vermont: the Progressive Party had to nominate its nominees by primary for the first time this year, since it polled over 5% for a statewide candidate in 2000. Before, it had nominated by convention. Although the party leader's support Independent Congressman Bernie Sanders, and did not wish to run anyone against him, an outsider, Jane Newton, filed to run for Congress in the Progressive Party primary.
As the only name on the ballot, she polled 957 votes. Supporters of Sanders wrote him in, but Sanders only received 433 write-ins. Therefore, Newton is the Progressive Party nominee for U.S. House. She is also the nominee of the Liberty Union Party. She is opposed to any U.S. military action against Iraq and campaigned against Sanders on that issue.
5. Washington: all the minor party candidates running for federal office in the state's blanket primary polled the needed 1% of the total vote, to qualify for the general election.
6. Wisconsin: 2.2% of all primary voters chose to vote in the Libertarian primary. This was the highest percentage of voters choosing to vote in a Libertarian statewide primary in the party's history, and the best showing for a minor party in Wisconsin primaries since 1944. However, it fell short of the 6% that is required for a candidate for Governor to receive public funding.
On September 15, the Vermont AFL-CIO held a convention and voted to endorse Instant Runoff Voting. Vermont is the only state in which the legislature is likely to pass IRV next year.
B.A.N. WEBPAGE NOW HAS SEARCH ENGINE
The Ballot Access News webpage now has a search engine. The website is www.ballot-access.org. It contains back issues, 1994-2002. The latest issue is never posted to the website until it is 30 days old, but the website is free, and is now easier to use. B.A.N. thanks Eric Garris for this improvement.
TV SHOW WILL CHOOSE CANDIDATE?
Cable TV network FX announced on September 20 that it will produce a new show, "American Candidate", that will present potential presidential candidates. Supposedly the viewers will choose one on July 4, 2004, and the winner will then choose whether to run as an independent.
2002
U.S. HOUSE NOMINEES
Click here for chart
The Reform Party held its national convention in Denver, September 6-8, and elected a new national chair. Lou Anne Jones of Montana won with 52 votes, to 25 for Jim Mangia, and a handful of votes for other candidates. In 2000, when the party had held two competing presidential conventions, Jones had participated in the meeting that nominated John Hagelin for president.
The party also restored its national platform to resemble its original 1996 platform. Planks added in 2000 by Buchanan supporters on immigration and abortion were deleted.
An independent candidate for Governor of Oklahoma, Gary Richardson, has been polling at 15%. An independent candidate for Governor of Vermont, Con Hogan, is showing similar strength. Both are former Republicans and have been spending large amounts of money on their campaigns.
James Traficant, an independent candidate for Congress who was a member of Congress until he was expelled in July 2002, may also have considerable voter support, but there seem to be no polls in his race. His bid to be released on bail was denied by the 6th circuit on Sep. 21.
NEW ALLIANCE PARTY ACTIVIST WINS REPUBLICAN CONGRESSIONAL NOD
Dr. Jessie Fields, one of the leaders of the New Alliance Party throughout its history, won the Republican nomination for Congress from New York's 15th district last month. She will oppose Democratic nominee Charles Rangel. The New Alliance Party competed in elections throughout the U.S. between 1984 and 1994. It dissolved itself in 1994. However, the core leadership of the group is still active, especially in the Committee for a United Independent Party ("C.U.I.P") and within the New York state Independence Party.
The Associated Press reported on September 11 that Congresswoman Cynthia McKinney, Democrat of Georgia, may seek the Green Party presidential nomination in 2004. The article was based on an interview with one of McKinney's campaign volunteers, Adam Eidinger, who is a Green Party activist. Eidinger said he said to the Congresswoman, "'You are on the very short list of people the Green Party would like to run for president. Would you do it?' Her exact response was 'Sure'."
McKinney was defeated for re-election in the Democratic primary in August. She had been set to speak at the Green Party national convention in July, but canceled.
$900,000 FOR MAINE GREEN NOMINEE
Jonathan Carter of the Green Party has received $900,000 in public funds for his campaign for Governor of Maine. He expects to spend most of the money on TV advertising.
U.S. SENATE RACES IN FOUR STATES LACK A MAJOR PARTY NOMINEE
In Kansas, Mississippi and Virginia, no Democrat is on the ballot for U.S. Senate. In Massachusetts, no Republican is on for that office.
A Libertarian is on the ballot in Kansas, Massachusetts, and Virginia; a Reform Party nominee is on in Kansas and Mississippi; and an independent is on in Virginia.
There haven't been so many Senate races uncontested by a major party since 1990, when there were also four such races.
There had been two Democrats running for U.S. Senate in Mississippi. The Democratic primary ballot in Yazoo County omitted U.S. Senate from the ballot, and the race was so close otherwise, it was impossible to know who won the primary. Then one of the Democrats died and the other, faced with a lawsuit by the Reform nominee, withdrew, leaving no Democrat in the race.