April 1, 2003 – Volume 18, Number 12

1. PUERTO RICO PETITIONING LAW STRUCK DOWN
2. GEORGIA ACCESS
3. NEW MEXICO ESCAPE
4. CUMULATIVE VOTING
5. HIGH COURT BOOSTS REFERENDA
6. LIBERALIZING BILLS MAKE PROGRESS
7. FUSION SAVED IN SOUTH CAROLINA
8. SOME RESTRICTIVE BILLS MAKE HEADWAY
9. TWO BAD BILLS STALL
10. SOME GOOD BILLS DIE
11. PRIMARIES VANISH
12. ALABAMA WRITE-INS
13. STATE RULINGS
14. OTHER LAWSUIT NEWS
15. INITIATIVE ALMANAC
16. BOOK REVIEW
17. 2004 PETITIONING FOR PRESIDENT
18. PEACE & FREEDOM RE-QUALIFIES
19. GREEN PARTY STATE LEGISLATORS
20. PROHIBITION PARTY
21. SOCIALIST WORKERS PARTY LIKELY TO PRESERVE ITS SECRECY EXEMPTION
22. MINOR PARTY VICTORIES
23. LIBERTARIAN SEAT THREATENED
24. VOTER REGISTRATION ROLLS SHRINK

PUERTO RICO PETITIONING LAW STRUCK DOWN
PERSISTENCE PAYS OFF; LAW HAD BEEN UPHELD IN 2000

On March 10, U.S. District Court Judge Hector Laffitte, a Reagan appointee, ruled that Puerto Rico's restrictions on who can circulate a petition to qualify a new party are unconstitutional. Perez Guzman v Gracia, no. 01-2132. The government is appealing this decision.

The law says that only attorney-notaries can circulate a petition to create a new party. "Attorney-notary" means someone who is both an attorney and a notary (not all attorneys are notaries; and not all notaries are attorneys). There are only 7,000 people in Puerto Rico who are eligible to circulate a petition for a new party.

The victory was especially welcome, because the Supreme Court of Puerto Rico had upheld the same law in 2000, and the U.S. Supreme Court had refused to review that case, which was called Partido Accion Civil v Commonwealth of Puerto Rico.

Perez Guzman is a member of the Civil Action Party, but Judge Laffitte ruled that res judicata did not prevent him from filing his lawsuit (res judicata is Latin for "the thing has already been adjudicated," and it prevents a loser in court from filing a new lawsuit on the same dispute). Perez Guzman filed as a citizen who wanted to circulate the petition for his party. He was not part of the first lawsuit and was not even a member of the party when the first lawsuit was filed.

The restriction is so strict, only once (in 1984) had a new party been able to qualify under its terms. The number of signatures required for a new party is 5% of the last gubernatorial vote, approximately 100,000 signatures.

Puerto Rico now has three qualified parties, but all three of them have been on the ballot since before the restriction was created, so they never had to comply with it.

These parties are the Popular Democratic Party (associated with the Democratic Party), the New Progressive Party (associated with the Republican Party), and the Puerto Rican Independence Party.

Qualified political parties in Puerto Rico receive public funding of $600,000 in election years, and $300,000 in non-election years, so the resistance to new party qualification is intense.

Other ballot access barriers also exist for new parties in Puerto Rico. The law says petitions must be turned in 7 days after they are collected, and must be turned in alphabetically by precinct. These restrictions are currently being challenged in another federal lawsuit, Limpieza Ciudadana v Gracia, 01-2191. Limpieza Ciudadana ("Citizen Clean-Up") is another party that hopes to get on the ballot some day. This case is before another federal judge in Puerto Rico.

GEORGIA ACCESS

On March 10, the U.S. Supreme Court refused to hear Cartwright v Barnes, 02-1082. This was the case against the Georgia law for minor party and independent candidates for U.S. House. It is so severe, no minor party candidate has ever complied with it, and no independent has complied with it since 1964 (when the deadline was in October).

However, the Georgia House Government Operations Committee passed HB 355 on March 24. It says that if a party is qualified for statewide office, it is also qualified for U.S. House elections. Unqualified parties, and independent candidates, could get on for U.S. House with a petition signed by 2% of the registered voters (current law is 5%). If the bill passes, Illinois will be the only state with no means onto the ballot (for U.S. House) except by a petition greater than 2% of the registered voters.

NEW MEXICO ESCAPE

In a stunning upset, New Mexico HB 628 failed to pass by March 22, the day the legislature adjourned. The bill would have removed the Green Party from the ballot.

Current law requires that a party poll 5% for Governor and President, and also keep its registration above .3%, to place its non-presidential nominees on the general election ballot without a petition. Parties that don't meet this threshold, but which polled .5% in either of the last two elections, are also qualified, but only for president.

HB 628, as passed by the House, would have required registration of 10%. The Senate Committee had amended it to 4%. The Green Party has registration of 1.5% and is the only party, other than the Democratic and Republican Parties, on the ballot for office other than president. No party, other than the two major parties, has held as much as 4% of any state's registration since the 1940's, when the American Labor Party had 4.5% in New York.

The bill was sponsored by the House Speaker, a Democrat. Even though Democrats have a majority in the Senate, the bill failed because Republicans began a filibuster each time the bill was brought to the Senate floor.

CUMULATIVE VOTING

On March 26, the Wagner, South Dakota School District settled Weddell v Wagner School District by agreeing to use Cumulative Voting in School Board elections. The Board has 7 members, elected at-large. Even though native Americans are 42% of the population, they have no Board members.

Cumulative Voting lets voters cast their 7 votes any way they wish. They can give one vote to each of 7 candidates, or give all 7 votes to a single candidate, or any intermediate combination.

HIGH COURT BOOSTS REFERENDA

The referendum process received some help from the U.S. Supreme Court on March 25. A lower court, the 6th circuit, had ruled in 2001 that if the people who circulate a petition for a city referendum seem to be motivated by racial bias, then the very act of putting the Referendum on the ballot is a violation of the Equal Protection rights of ethnic minorities. The Supreme Court reversed the 6th circuit. Cuyahoga Falls, Ohio v Buckeye Hope Foundation, 01-1269.

Justice Sandra Day O'Connor wrote the opinion, which was unanimous. She wrote, "All citizens, regardless of the content of their ideas, have the right to petition their government...All power stems from the people...The people retain the power to govern through referendum with respect to any matter, legislative or administrative, within the realm of local affairs...Statements made by private individuals in a citizen petition drive are not state action."

Of course, the state or locality in question must actually provide for the referendum for this to be relevant; not all states permit them. The referendum process provides that if a representative body passes a law, the people have the right to immediately circulate a petition against the new law. If the petition contains enough valid signatures, the law is then subject to popular vote.

In this particular case, the referendum process was used in 1996 to set aside a decision by the City Council to build low-income housing. Although the city council's decision was overturned by popular vote, the Ohio Supreme Court had ruled later (in 1998) that the Ohio Constitution does not permit referenda for administrative acts, and had construed the Cuyahoga Falls law to be an administrative act, not a legislative act.

In recent years, lower courts have had an increasing tendency to remove initiatives and referenda from the ballot, based on their content (even though they had obtained enough valid signatures). The U.S. Supreme Court's Cuyahoga Falls decision will probably help to stem that trend.

LIBERALIZING BILLS MAKE PROGRESS

1. Alabama: bills to let independent candidates, and candidates of unqualified parties, qualify for the ballot by fee instead of petition have been introduced in both houses. They are SB 284 and HB 425. Also, HB 127 has been introduced, to move the deadline for a qualified party to choose its presidential candidate from August 31 to September 5.

2. Connecticut: HB 6372, which sets up procedures by which candidates can get on a primary ballot even if they don't have support at a party caucus, has cleared policy committees and will soon received a vote on the floors of each House.

3. Hawaii: SB 1604 puts the right to vote in the State Constitution. Among other goals, it will permit prisoners to vote. Also it provides that voters no longer must provide their Social Security number when they register to vote or sign petitions. It passed the Senate March 3.

4. Idaho: H268 was signed into law on March 17. It gives the Secretary of State discretion to extend the date by which a qualified party must choose its presidential candidate from September 1 to September 6.

5. Illinois: HB 3109 lowers the number of signatures needed for minor party and independent candidates. The statewide requirement would drop from 25,000 to 10,000; district and county office from 5% of the last vote cast, to 1%.

6. Kansas: SB 95 passed the House Elections Committee on March 13. It repeals the law that limits a party to only one word in its name. The other half of the bill (to repeal the ban on the Communist Party) was deleted by a vote of 8-7.

7. Maine: LD 640, which changes the State Constitution to lower the voting age to 17, passed the Legal and Veterans Committee on March 25 by a vote of 11-2.

8. North Carolina: Representative John Blust of Greensboro will introduce a bill lowering the requirements for a party to get on the ballot and to stay on the ballot.

9. North Dakota: SB 2288, which makes it easier for parties to qualify, passed the House on March 27. The bill also lets presidential candidates who use the independent procedure (which is easier than the party procedure) choose a partisan label.

10. Ohio: HB 90 moves the primary in presidential years from March to May. This eases the petition deadline for new parties from November of odd years, to January of even years. It passed the House on March 19.

11. Utah: HB 61, which lowers the number of signatures needed by independent candidates for county office in very small counties, was signed into law March 15.

12. Virginia: HB 1508, which removes restrictions on who can circulate a statewide petition, was signed into law on March 16. HB 2835, which eases the deadline for a qualified party to choose its presidential candidate from September 1, to 60 days before the general election, was signed March 20.

13. Washington: HB 1390, which would let the city of Vancouver use Instant-Runoff voting for five years (as a pilot project), passed the House on March 13, 64-30. Vancouver voters already decided to use IRV, but the city needs state authorization.

14. Wyoming: HF 65 was signed into law on March 5. It lets ex-felons register to vote, five years after release.

FUSION SAVED IN SOUTH CAROLINA

H3037, as introduced, would have made it illegal for two parties to jointly nominate the same candidate. South Carolina is one of the few states that permits "fusion" on an unrestricted basis. However, after testimony from the United Citizens and Green Parties, the bill was amended, and it passed the House on March 5.

As amended, the bill permits fusion, but says a candidate's name may be printed only once on the general election ballot. If the candidate is the nominee of two parties, both party names would be printed next to the candidate's name, but with only a single check-box.

SOME RESTRICTIVE BILLS MAKE HEADWAY

1. Alabama: HB 77 passed the House on March 13. Alabama already has the nation's highest vote test for a party to remain on the ballot, 20% for any statewide office. HB 77 changes it to 20% for Governor. If the bill passes, it may violate due process. Alabama Governors are elected in mid-term years. If a new party successfully petitioned in a presidential year, no matter how well it did, it could not retain its spot on the ballot. Only two other states, New York and Indiana, have this characteristic, and this point hasn't been tested in court in those states.

2. Arizona: SB 1046 passed on March 28. It moves the write-in filing deadline from 14 days before an election, to 40 days. However, another restrictive provision in this bill, making it illegal for people to pay workers to register voters, was deleted before the bill passed.

3. Kentucky: HB 136, signed into law March 18, requires independent and unqualified party nominees (except president) to file a declaration of candidacy by April 1 of an election year. However, the petition deadline remains unchanged, in August.

4. Montana: SB 296, raising the filing fee from 1% of that office's annual salary, to 1.5%, passed the Senate on March 24. HB 190, which requires write-in candidates to pay the filing fee, passed the Senate on March 25 and is in conference.

5. Tennessee: SB 1315 and HB 1560 raise the number of signatures for independent candidates (for all office) from 25 to 50. They are expected to pass.

TWO BAD BILLS STALL

1. Colorado: HB 1142, which forces all qualified minor parties to nominate by primary if at least two candidates poll 30% of the vote at the party's convention, is pending on the Senate floor, but the sponsor has repeatedly postponed a vote.

2. North Carolina: HB 43, which would impose filing fees on candidates nominated at minor party conventions, seems dead.

SOME GOOD BILLS DIE

In Indiana, Iowa and West Virginia, bills to improve ballot access failed to make any headway, and it is too late for them to be considered.

In Nebraska, the Secretary of State had a bill (LB 352) that he felt helped minor parties. It would have ended provision for a party to be qualified in just a single district (if it isn't on statewide). But in exchange, it would have let parties remain on the ballot if they polled 5% for any office at either of the last two elections. Currently the vote test must be met every election. However, the Green Party opposed the bill at its hearing, and it died.

In Oklahoma, an election law bill with many provisions contained one idea to make it slightly easier for a party to remain on the ballot. The bill passed the House on March 6, but when it got to the Senate policy committee, that committee deleted the helpful part of the bill. The provision would have lowered the vote test for a party to remain on the ballot from 10% to 8%.

PRIMARIES VANISH

At least three states, and possibly as many as seven, that held a presidential primary in 2000 will not do so in 2004. Some states are dropping them because of budget worries. Another motivation is that with so many other states moving their presidential primaries to February, the states with later primary dates will have no real impact. Of course, that rationale could turn out wrong if the early Democratic primaries are split. Bills to abolish primaries:

1. Arizona: SB 1012 passed the Senate on March 12.

2. Colorado: SB 188 was signed into law on March 5.

3. Maine: LD 100 has passed all policy committees.

4. Missouri: there is no bill yet, but the idea has wide support.

5. North Dakota: SB 2288 passed the legislature on March 27.

6. Tennessee: the Secretary of State will prepare such a bill.

7. Utah: HB 342 was signed on March 15.

ALABAMA WRITE-INS

On February 18, U.S. District Court Judge Harold Albritton, a Bush, Sr., appointee, dismissed Swanson v Bennett, 02-A-1244, middle district. This is the lawsuit that challenged the state's failure to provide a write-in tally for serious write-in candidates. Swanson had been an independent candidate for U.S. Senate in November 2002. Since he couldn't get on the ballot, he had waged a write-in campaign, but the state didn't tally his results.

Unlike most states, Alabama has no procedure by which a write-in candidate who desires a tally can file a declaration of write-in candidacy in advance of the election. Under state law, all write-ins are supposed to be tallied, but in practice none of them are, at the state level.

Judge Albritton seemed to think Swanson was claiming that he might have won the election. Therefore, he relied on old precedents establishing that when a congressional election result is contested, only Congress itself (not the courts) can look into the matter. The lesson here is that when similar lawsuits are filed in the future, they need to be filed before the election. This will make it crystal-clear to any judge that the lawsuit is challenging faulty, habitual state vote tallying practices, and that the lawsuit is not a contest over who won.

STATE RULINGS

State elections officials have recently made these interesting rulings:

1. California: the state will continue to print write-in space on run-off ballots for state office. The only state offices that have run-offs are Superintendent of Public Instruction (which is non-partisan), and special elections for U.S. House and legislature. Last year, the California Supreme Court construed the state election law to not require write-in space on run-off ballots.

2. New York: the State Election Board refuses to accept the new Independence Party by-law, which says that independent voters may vote in the Independence Party's statewide primaries. Therefore, the party is about to sue the State Board.

OTHER LAWSUIT NEWS

1. Alaska: Libertarians in this state have four entirely distinct election lawsuits pending. Hinterberger v State, 3AN-03-4092, challenges the state's determination that a hemp legalization initiative is invalid because the initiative proponents didn't turn in reports specifying how much money each circulator was paid. Citizens for Implementing Medical Marijuana v Anchorage, 3AN-02-12732, challenges a city's decision not to put a city initiative on the ballot because the proposed law might be invalid under federal law. Libertarian Party of Alaska v State, 3AN-02-14010, challenges a regulation (which seems to have no authority in the law) that parties reveal information about their contributors. In federal court the party is challenging a state law that has the effect of not letting the party raise as much money as the other 3 qualified parties. Libertarian Party v State, A03-50.

2. Arizona: on March 24, the U.S. Supreme Court refused to hear May v Brewer, 02-1065. The plaintiff had challenged one of the state's methods of financing campaigns, a surcharge on parking tickets.

3. California: on March 18, a State Court of Appeals ruled that large grocery stores in shopping centers can ban petitioning on their sidewalks. Albertson's v Young, C37270. The State Supreme Court ruled 25 years ago in the Pruneyard case that California shopping centers must allow petitioning. But the Court of Appeals distinguished that decision by saying that the shopping center in the Albertson's case has no courtyards, plazas, picnic areas, gardens or gyms. Therefore it isn't a substitute for the old "town square," as the Pruneyard mall had been.

California (2): B.A.N. earlier reported that the 9th circuit, on its own motion, was considering rehearing Rubin v Santa Monica, 01-56091. However, on February 4 the 9th circuit decided not to rehear it. The issue was whether "activist" could ever be an occupation. California prints the occupation of candidates on the ballot.

4. Florida: on April 9, the 11th circuit will hear Johnson v Bush, 02-14469, in Miami. The issue is the state's ban on ex-felons voting. The judges who will hear the case are all liberals: Rosemary Barkett (a Clinton appointee), Phyllis Kravitch (Carter), and John Fullam (Lyndon Johnson).

5. Illinois: on November 27, 2002, a State Appellate Court ruled that if an elections official gives out a petition form to a circulator, and the petition form has an error in it, the government is estopped from then rejecting the completed petition on the grounds that the form was erroneous. Brennan v Kolman, 781 NE 2d 644.

6. Michigan: on March 18, a State Court of Appeals upheld the straight-ticket device on ballots. An independent candidate for partisan township office had filed the case, arguing that since there is no straight-ticket device for independent candidates, the device gave his Republican opponent an unfair advantage (no other parties had candidates in this race). McDonald v Grand Traverse County Election Commission, 237984.

7. New York: on February 20, a U.S. District Court ruled that the state may not punish a candidate for Judge of the Supreme Court just because he campaigns vigorously. New York elects its Supreme Court Justices with partisan elections, yet had tried to prevent them from behaving like candidates. Spargo v N.Y. State Commission on Judicial Conduct, 1:02cv-1320.

8. North Carolina: the hearing in DeLaney v Bartlett, which challenges the number of signatures required for independent candidates, is scheduled for January 5, 2004.

INITIATIVE ALMANAC

In May, Carolina Academic Press will publish "The Initiative & Referendum Almanac." It will be 654 pages, and will include detailed information about each state's initiative and referendum process. The book will sell for $65, but it is $50 if ordered from this website: www.iandrinstitute.org.

BOOK REVIEW

Overruling Democracy, The Supreme Court vs. The American People, by Law Professor Jamin B. Raskin. Hardcover, 290 pages. 2003, Routledge Press, New York. $19.25 on Amazon.com.

U.S. ballot access problems are little-known to the public, and even to many reporters, professors, and other specialists. Thus it is always good when a general circulation book publicizes these problems. Overruling Democracy devotes one of its ten chapters to U.S. ballot access laws. This chapter shows that the U.S. Supreme Court has abdicated its responsibility to protect the voting rights of people who want to vote for candidates who are not Democratic or Republican nominees. It is an outstanding chapter, accurate and persuasive.

As a whole, the book covers Supreme Court decisions that relate to people's ability to participate in government. Some of these topics might seem unrelated at first glance. They include funding for public education; the free-speech rights of students in public schools; flag-burning laws; and whether for-profit corporations are covered by the First Amendment. Raskin ties them in to the theme of elections and self-government. Other topics in the book are more obviously connected to election law, and cover voting by ex-felons and by residents of Washington, D.C. and the territories; candidate debates; and the Supreme Court's Bush v Gore decision.

Anyone who is interested in the topics covered by Ballot Access News will surely not be bored by Overruling Democracy, even though not all readers will agree with Raskin about all the topics he covers.

The Washington Post reviewed Overruling Democracy on March 9. The review did not mention the ballot access chapter, nor the chapter on D.C.'s lack of representation in Congress. The review said, "While Raskin won't change the minds of anyone who disagrees with him, this bomb-throwing book is a hoot to read."

2004 PETITIONING FOR PRESIDENT

#Candidate procedure allows partisan label. Other nationally-organized parties on statewide are Socialist, Soc. Workers, Southern, & Workers World, in Fla. "Est." means "estimated." "(reg.)" means the state requires a party to have a certain number of registered voters, as opposed to a petition. * means entry changed since the December 1, 2002 petitioning chart.

PEACE & FREEDOM RE-QUALIFIES

The Peace & Freedom Party re-qualified for the California ballot at the registration tally of February 10, 2003. The party was also on the ballot from 1968 through 1998, but it had failed to poll 2% of the vote for any statewide race in November 1998, so had lost its ballot status. This is the first time a party in California ever re-qualified, after having been off the ballot for as long as four years.

The party re-qualified with 79,462 registrants, which is greater than the needed 77,389 (the requirement equals 1% of the number of voters who voted at the last mid-term election). The party is now safely on the ballot for 2004 and 2006, even if its registration dips below 77,389.

The party was helped by the large anti-war rallies that have been held during the last few weeks, and it was also helped by the unusually low voter turnout last year. Nevertheless, the job of requalifying was a difficult one. The party borrowed money for the drive, and is $25,000 in debt.

GREEN PARTY STATE LEGISLATORS

The Green Party has two state legislators, Matt Ahearn of New Jersey and John Eder of Maine. New Jersey elects its legislators in November of odd years. Ahearn will run for re-election as a Green this year.

Eder's term doesn't expire until the end of 2004, but his chances of re-election in 2004 are threatened by a proposal to redistrict his district out of existence. Maine still hasn't redistricted its legislative seats to reflect the results of the 2000 census. It will do so this year. The Democratic plan eliminates his seat; the Republican plan does not. The plan must ultimately pass the legislature with a two-thirds vote; if the legislature deadlocks, the state courts will decide on the new boundaries.

PROHIBITION PARTY

The Prohibition Party will holds its national convention on June 11-12, 2003, in Denver. It may nominate Earl Dodge for president. Since 1943, the party always nominates a presidential candidate in the odd year before a presidential election.

SOCIALIST WORKERS PARTY LIKELY TO PRESERVE ITS SECRECY EXEMPTION

On March 25, the Federal Election Commission staff wrote an 18-page proposed draft of an advisory opinion. It recommends that the Socialist Workers Party continue to be exempt from disclosing its campaign contributors and expenditures, through December 2008. The party has held this exemption since it won a case on this point in the U.S. Supreme Court in 1982. That decision said that since persons identified with the party are likely to suffer harassment from government agencies and private individuals if they are identified, their names may be kept out of public records. The six FEC Commissioners will decide on April 3 whether to accept the staff recommendation.

MINOR PARTY VICTORIES

During March, 3 Libertarians and a Green won elections. Libertarians were elected to a seat on the Andover, New Hampshire Budget Committee; the Rindge, New Hampshire Town Planning Commission; and the Andover, Massachusetts School Committee. A Green was elected to the Lake Worth, Florida City Commission.

LIBERTARIAN SEAT THREATENED

Wisconsin's Election Board has a representative of each political party that polled 10% for Governor. In 2002 the Libertarian Party met this test, becoming the first non-Republican, non-Democratic Party to have a member on any state's Elections Board. However, SB 11 would eliminate party representatives, and let the State Supreme Court appoint all members. The bill has not yet progressed.

VOTER REGISTRATION ROLLS SHRINK

Two million fewer voters were registered to vote for the 2002 election, than for the 2000 election, in the United States (including D.C. but not the territories). There were approximately 164,600,000 in 2000, but only 162,600,000 in 2002. Many states have been aggressively purging their voter registration rolls. Also, of course, there was lower voter interest in 2002 than in 2000.