June 1, 2003 – Volume 19, Number 2

1. POLITICAL PARTIES WIN CAMPAIGN LAWSUIT
2. OTHER PROVISIONS ALSO THROWN OUT
3. JUDGES REJECT FREE PRESS ARGUMENT
4. ACCESS BILL: HR 1941
5. AMERICAN CANDIDATE TV SHOW
6. NORTH CAROLINA STALL
7. CUMULATIVE VOTING GAINS IN ILLINOIS
8. WEST VIRGINIA PETITION IMPROVES
9. TEXAS GAIN
10. REPUBLICAN PARTY DEADLINE NEWS
11. ALABAMA PROGRESS
12. MORE LEGISLATIVE NEWS
13. DELAWARE FILING FEE
14. OTHER LAWSUIT NEWS
15. GAO RELEASES CLEAN ELECTIONS STUDY
16. 2004 PETITIONING FOR PRESIDENT
17. SPECIAL ELECTIONS
18. GREEN PARTY NATIONAL MEETINGS
19. LIBERTARIAN PETITIONING IS LAGGING
20. GREENS WIN PARTISAN ELECTION
21. CONSTITUTION PARTY CONVENTION

POLITICAL PARTIES WIN CAMPAIGN LAWSUIT
HOWEVER, U.S. SUPREME COURT WILL HAVE THE LAST WORD

On May 2, a 3-judge U.S. District Court invalidated the parts of McCain-Feingold campaign finance law that outlaw large donations to political parties. The vote was 2-1. McConnell v FEC, 02-582.

Before the law went into effect in November, 2002, it had always been legal for anyone to give as much money as he or she wished to any party. The McCain-Feingold law made it illegal for anyone to contribute more than $25,000 to a national party. Judge Karen Henderson, a Bush, Sr. appointee, ruled that the limit on giving to parties is totally invalid. Judge Richard Leon, a Bush, Jr., appointee, ruled that the ban is valid only to the extent that the donation is used for campaign advertising for particular candidates for federal office. Therefore, if the decision is not overturned, individuals can still give as much money as they wish to parties, for purposes other than campaign advertising for particular federal candidates.

Judge Colleen Kollar-Kotelly, a Clinton appointee, would have upheld the law. She was the only one of the three judges who commented on the Libertarian Party's brief. Defenders of the law say that individuals who give large donations to political parties get easier access to the president and members of Congress. This is the rationale for the restrictions. Therefore, the Libertarian Party argues, why should donations to it be restricted, since it has never come close to electing a federal office-holder? Judge Kollar-Kotelly wrote, in footnote 171, "even minor party candidates may win elective office or have a substantial impact on the outcome of an election." She provided no examples, or any further detail.

A double standard is at work here. When minor parties seek entry to the presidential debates, they are told they have no "realistic chance of winning the election," and thus can be barred.

But when minor parties seek relief from finance restrictions, they are told that they must be restricted because they have a "substantial impact" on federal elections.

The entire law is still in effect, because the U.S. District Court stayed its own decision on May 19. On May 23, the U.S. Supreme Court refused to disturb the stay. That Court will probably hear the government's appeal in September or October.

OTHER PROVISIONS ALSO THROWN OUT

These provisions of the McCain-Feingold law were also invalidated:

1. §323(b), which barred large donations to state and local parties for purposes other than voter registration and "get-out-the vote" activity. However, large donations to state and local parties are still prohibited for the purpose of advertising for particular federal candidates.

2. §323(d), which barred national, state and local parties from contributing to, or soliciting donations for, tax-exempt organizations. For example, the Foundation for Free Campaigns and Elections, which funds ballot access lawsuits, could not have received any donations from political parties under this section.

3. §201, which makes it illegal for corporations or labor unions to sponsor broadcast ads that are made within 60 days of a general election for federal office, or 30 days of a primary, that refer to a federal candidate.

However, the "back-up" provision of 201 was left in place. It bans a broadcast paid for by a corporation or labor union at any time if that ad seems to support or attack a candidate for federal office.

4. §213, which forbids parties from making both coordinated expenditures for one of its nominees, and uncoordinated expenditures for that same nominee.

5. §318, which makes it illegal for anyone age 17 or younger to contribute even $1 to a political party or to a federal candidate.

6. §504, which requires TV and radio stations to maintain, and make available for public inspection, a complete record of any request to buy time to discuss any federal election, or any national legislative issue (even if the buyer doesn't complete the sale).

JUDGES REJECT FREE PRESS ARGUMENT

The same three judges who heard the case against the McCain-Feingold law rejected the arguments of a group of Libertarian candidates, who had their own attorney (separate from the Libertarian Party's attorney) to argue that the First Amendment provision on Freedom of the Press should invalidate most provisions of the McCain-Feingold law, as well as many provisions of the old law.

The First Amendment says, in part, "Congress shall make no law abridging the freedom of speech, or of the press." The plaintiffs who cited Freedom of Press are Congressman Ron Paul, Carla Howell, Michael Cloud, and Perry Willis. They noted that all federal campaign laws, old and new, always exempt the "institutional press" from all restrictions. Then they argued that everyone who attempts to influence public opinion about political and campaign matters should be treated as "press." During the 18th and 19th centuries, virtually every newspaper of general circulation was strongly, unashamedly partisan, and made no pretense of being "objective" while commenting on political parties or candidates.

Pages 106-113 of the joint opinion of Judges Kollar-Kotelly and Leon reject this argument. They say the "Press" part of the First Amendment is redundant, that it adds nothing to the "Speech" part. The "Paul plaintiffs," as they are called in the decision, are appealing.

ACCESS BILL: HR 1941

On May 1, Congressman Ron Paul (R-Tex) introduced HR 1941, to outlaw severe ballot access restrictions for minor party and independent candidates for the U.S. House of Representatives. The preamble to the bill tells why the bill is needed. See http://thomas.loc.gov, and enter "HR1941" at the top of the page.

If your member of congress becomes a co-sponsor of HR 1941, B.A.N. will pay you $50, if these procedures are followed:

1. First, ask your member of Congress to co-sponsor HR 1941. If and when you get a written response (no matter how perfunctory), send a copy of the Congressmember's response to B.A.N.

2. B.A.N. will then extend your subscription for three months. If you are not now a subscriber, you will be given a 3-month sub.

3. For all those who have followed the steps above, B.A.N. will send you $50 if the member of Congress you had contacted becomes a co-sponsor in 2003. Only one gift per member of Congress will be given; in case of ties, the earlier activist (as determined by the date on the Congressmember's letter) will receive the gift. In case of letters to multiple activists bearing the same date, the gift will be split equally. This offer expires December 31, 2003.

HR 1941 has no chance of passing unless it obtains many co-sponsors.

A case can be made that HR 1941 is needed to save popular control of the federal government. The U.S. Constitution does not guarantee the right of the voters to choose the president. Presidential electors choose the president, and state legislatures have the right to choose the electors. Art. II, §1 says, "Each state shall appoint, in such Manner as the Legislature thereof may direct, the Electors."

Many have forgotten that the Florida legislature, in December 2000, was about to pass a bill nullifying the popular vote for president and providing that the legislature should choose Florida's presidential electors.

The Constitution does give the voters the right to elect members of congress. Unfortunately, some state legislatures have violated the U.S. Constitution, and passed laws that make it impossible for anyone but the Democratic and Republican nominees to get on the ballot for the U.S. House. No independent or minor party candidate for the U.S. House has ever qualified under existing Georgia laws, which have existed completely unchanged since 1977.

Federal judges, and members of the current U.S. Supreme Court, have dishonorably and shamefully failed to rule against the Georgia laws. If the Georgia legislature can write a law that guarantees a Democratic-Republican monopoly for U.S. House elections, then, under the Constitution, any other state can do the same. The current Supreme Court will not provide voting protection in U.S. House elections for voters who wish to vote for someone other than the Democratic and Republican nominees (on March 10, 2003, it refused to hear Cartwright v Barnes). Congress itself must act.

Some believe that non-major party candidates for Congress never win, so this issue isn't important. However, in the 20th century, the voters elected members to the House who weren't Democratic or Republican nominees in one-half of 1% of all U.S. House elections. This works out to two such victories per election year, since the House has 435 members. At least one such person has been elected at every election since 1988.

AMERICAN CANDIDATE TV SHOW

On May 2, the FX cable network said that it will not carry "The American Candidate" in early 2004. "The American Candidate" had been planned to showcase attractive and interesting independent or minor party presidential candidates (see B.A.N. of Feb. 1, 2003). The network said the show will cost too much to produce.

R. J. Cutler, the documentary filmmaker who planned to produce the show, hopes to announce that he has found another sponsoring TV network by June 15.

N.C. STALL

The May 1 B.A.N. said that a North Carolina ballot access bill, H867, had passed the policy committee unanimously, and was due for a vote in the House. Unfortunately, the two co-speakers of the House, Democrat Jim Black and Republican Richard Morgan, so far have refused to allow the House to vote on the bill.

Morgan said, in an e-mail to Dave Goree (a Libertarian who has been leading the fight for the bill), "I believe that the current threshold for establishment of a political party is sufficient. It maintains stability within its political system. Although there are some legitimate political parties in existence that have not yet met this threshold in North Carolina, there are even more parties that are illegitimate that this policy has been able to keep at bay."

Current law requires almost 60,000 valid signatures, and has kept the Green Party and the Constitution Party off the ballot in that state, even though those two parties have been on the ballot of most other states. Morgan didn't specify what he means by "illegitimate" parties. Since political parties are the carriers of ideas, Morgan seems to endorse the idea that the state should decide which ideas are "legitimate" and "illegitimate."

Activists are working to save the bill. On May 7, Ralph Nader met with U.S. Senator John Edwards of North Carolina, who promised to work to get the bill passed. A protest rally was held at the State House on May 20, and friendly legislators are looking for a maneuver to advance the bill.

The Green Party has asked the ACLU to bring a lawsuit against the wording of the existing party petition, which says that the signers "intend to organize a new party." North Carolina is in the 4th circuit, and the 4th circuit has already ruled that the state has no interest in requiring new party petitions to carry such language. If the proposed lawsuit wins, the legislature will have another motivation to pass some sort of reform. The legislature is expected to be in session for at least three more months.

CUMULATIVE VOTING GAINS IN ILLINOIS

On May 9, HB 138 passed the legislature. The Governor has until August 7 to sign or veto the bill. It gives Illinois counties the authority to authorize cumulative voting, in elections for County Boards. It also permits the voters to pass initiatives (signed by 8% of the last gubernatorial vote), providing for cumulative voting for county boards.

Cumulative voting only applies to multi-winner elections. If three are to be elected, a voter is free to cast all three of his or her votes for just a single individual, or to give one vote apiece to each of three candidates, or to give 1.5 votes to each of two candidates. Cumulative voting makes it easier for parties that don't enjoy majority support to still elect some members of a legislative body.

Supporters of HB 138 used DuPage County as a bad example (DuPage is Illinois' 2nd most populous county). All 18 members of the DuPage County Board are Republicans.

WEST VIRGINIA PETITION IMPROVES

West Virginia Secretary of State Joe Manchin III has improved the petition form that minor party and independent candidates must use. The old form said, "We are aware that by signing this certificate we are giving up our right to vote for any other partisan candidates at the primary election." This was in large print.

The new form deletes that language. Instead, in smaller print, it says, "No person signing such certificate shall vote at the next primary election. Provided, that no criminal penalty may be imposed upon anyone who signs a nomination certificate and votes in the primary election held after the certificate was signed."

West Virginia and Texas are the only states that do not allow petition signers (for minor parties) to vote in primary elections. The West Virginia legislature repealed the criminal penalty (for both signing, and then voting in the primary) in 1999, but only now does the petition form reflect that change. The 1999 law also doubled the signature requirement.

TEXAS GAIN

On May 28, the Texas legislature passed HB 1274, which removes the requirement that petition circulators must read a long, complicated sentence to every potential signer. The sentence warns people that they cannot sign if they voted in the primary.

Although the restriction on both voting in the primary and then signing still exists, petitioners will be much better off, not being forced to read that complex sentence, which typically took 20 seconds to read out-loud.

REPUBLICAN PARTY DEADLINE NEWS

1. Alabama: HB 127, to relax the deadline for a qualified party to certify the names of its presidential and vice-presidential (to accommodate the Republican Party's September 2 national convention) passed the House on May 6. The Senate will take it up after June 6, when the regular session re-convenes.

2. California: there is no law requiring a qualified political party to certify the names of its national ticket by any particular day. But §8148 says the Secretary of State, no later than August 26, shall tell the counties which names to print on ballots. Although theoretically the Secretary of State is free to supplement the list a week later, he plans to ask the legislature to amend that deadline.

3 D.C.: a Regulation requires qualified parties to certify by August 31. A bill will be introduced any day now to give the Board of Elections the power to waive this regulation.

4. Illinois: like California, there is no law setting a deadline for a qualified party to certify its national ticket. But §5/7-60 tells the State Board of Elections, by August 27, to tell the counties which names to print on the ballot. The Board has asked the Attorney General whether it can supplement that list a week later.

5. Maryland: SB 244, which deletes a law telling qualified parties that they must certify their national tickets by August 31, was signed into law on May 13.

ALABAMA PROGRESS

SB 284 passed the Senate Elections Committee on May 6, unanimously. It would let minor party or independent candidates obtain a place on the general election ballot, with no petition. They would only need to pay the same filing fee that Democrats and Republicans now pay to run in the primary. The sponsor is Senator Henry Sanders, a Democrat.

MORE LEGISLATIVE NEWS

1. Alabama: on May 6, the House passed HB 104, which lets ex-felons register to vote, unless they had been convicted of rape, murder, treason or pornography possession with intent to distribute that pornography.

2. Alaska: on May 21, the legislature passed SB 119. It fixes a Libertarian Party problem. The old law had one definition of "political party" for ballot-access purposes, but a different definition for campaign finance purposes. The Libertarian Party met the ballot-access definition of "party," but not the campaign finance definition. Consequently, it was the only party on the ballot that didn't enjoy the higher contribution limits that the other parties have, relative to non-party organizations. Now, however, the campaign-finance definition matches the ballot-access definition.

3. California: SB 152, which would have made it illegal for a "sore loser" to be a write-in candidate in the general election, was defeated in the Senate Elections Committee on May 7.

4. Connecticut: on May 28, the House passed H6372, which sets up petition procedures for candidates running in major party primaries. Under existing law, no one can run in a primary without substantial support at a party caucus. Petitions of 2% of party members would be needed for statewide office, and 5% for district office.

5. Minnesota: SF 31, which would have moved the non-presidential primary from September to June, and also made it more difficult for candidates to get on a primary ballot unless they had support at a caucus, failed to pass. However, it could pass next year.

6. Louisiana: SB 539 has been amended so that it no longer injures minor parties and independent candidates. It would restore closed primaries for congressional elections. As described in the May 1 B.A.N., it would have created onerous ballot access barriers for minor party and independent candidates for Congress. But the author, Senator Cleo Fields, amended it so that independents and minor party candidates could still get on the ballot with a filing fee and no petition. The bill passed the Senate Government Affairs Committee on May 14.

7. Maine: LD 1349 passed the Legal and Veterans Committee on May 14. As amended, it abolishes the petition requirement for new parties, and it also abolishes the 5% vote test for them to stay on. Instead, a qualified party would simply be one that had 15,000 registered members. In Maine, 15,000 is approximately 1.6% of the total state registration. At the last tally the Green Party (the only qualified minor party) had 16,169 registrants.

8. Massachusetts: the Senate is considering the state budget. Competing amendments would either eliminate public funding for state election campaigns, or fund it with various fees and surcharges.

9. Michigan: on May 14, the legislature passed SB 397, to abolish the 2004 presidential primary.

10. Montana: HB 190 was signed into law on April 24. It requires declared write-in candidates to pay the filing fee, 1% of the annual salary of the office. Similar laws have been held unconstitutional in California, Maryland and West Virginia. Legislators were told about these court precedents, but they passed the bill anyway.

11. Oklahoma: SB 3, which moves the primary from March to February 3, was signed into law on May 5.

12. Tennessee: HB 1560 and SB 1315, which would have increased all candidate petitions from 25 signatures to 50 signatures, failed to pass, and the legislature has now adjourned.

13. Texas: HB 2496, which moves the primary from the second Tuesday in March to the first Tuesday in March, passed legislature on May 28. It has the indirect effect of making the new party petition due one week earlier than it had been.

14. Wisconsin: AB 112, which moves the primary from April to the third Tuesday in February, was signed into law on May 20.

DELAWARE FILING FEE

A potentially helpful lawsuit is pending in the 3rd circuit. It challenges Delaware's filing fee, which is mandatory for anyone running in a major party primary, unless that candidate has annual income under $13,000. Biener v Calio, 03-1607. The plaintiff, a Democrat who ran for U.S. House last year, had to pay a $3,000 fee. If he had run for the Senate, it would have been $9,000.

The U.S. Supreme Court ruled in 1972 and again in 1974 that mandatory filing fees are unconstitutional. Delaware feels it complies with these rulings by exempting people below the poverty line from paying the fee. The fee is mandatory for everyone else. There is no petition in lieu of filing fee.

Steve Biener argues that the founding fathers were clear that there be no wealth test, to qualify for Congress. He also argues that the fee violates equal protection, since one class of candidates (people with low income) may avoid the fee.

OTHER LAWSUIT NEWS

1. Arizona: the 9th circuit will hold a hearing in San Francisco on June 9 in Arizona Libertarian Party v Bd. Supervisors, 02-16535. The issue is whether a party can keep independent voters from voting in its primary.

2. California: on April 25, the 1st district State Court of Appeal ruled that an initiative petition need not have the title of the proposed law on both sides of each sheet. A city clerk had rejected a petition because the law says the title must be on "each page" and it was only on the front side of each sheet. Alliance for a Better Downtown Millbrae v Wade, 99453.

3. Colorado: on May 9, a Democratic State Senator filed a lawsuit to overturn the legislature's recent redrawing of the state congressional districts. The state was already redistricted once since the 2000 census, but the Republican-majority legislature redrew them again last month, to make them more favorable to Republican members of Congress. The plaintiff cites a state law that says redistricting shall only be carried out after Congress has re-apportioned the nation's House seats.

4. Kentucky: on May 7, the State Supreme Court upheld the lower court, and ruled that a candidate for Governor in the primary may replace his or her Lieutenant Governor running-mate, if the first Lieutenant Governor candidate is disqualified. Heleringer v Brown, 2003-327.

5. Maine: on May 16, the Green Party filed a lawsuit in the State Supreme Court to overturn the legislature's redistricting plan, which eliminates the seat of the only Green Party legislator. In the Matter of the Challenge to the 2003 Apportionment, SJC 238.

6. New York: on or about June 2, the Independence Party will file its federal lawsuit, to enforce its own bylaw that lets independent voters vote in its primary. It will be called McKay v State Bd. of Elections.

7. Texas: on May 14, the state Court of Criminal Appeals struck down a state law requiring anyone who hires a printer to mass-produce a campaign ad, to identify himself in that ad. Doe v State, 254-02. The vote was 7-2.

GAO RELEASES CLEAN ELECTIONS STUDY

The U.S. Government Accounting Office has released its study of Arizona and Maine state public funding for campaigns. It is at www.gao.gov/cgi-bin/getrpt?GAO-03-453. The 144-page report concludes "with only two elections to observe legislative races and only one election to observe statewide races," it is too early to tell if public funding increases electoral competition and voter participation.

2004 PETITIONING FOR PRESIDENT

• #Candidate procedure allows partisan label.
• Other nationally-organized parties on statewide are Socialist, Socialist Workers, America First, & Workers World, in Fla.
• "(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 last chart.
• The Deadline shown is for the latest procedure.

SPECIAL ELECTIONS

1. Texas: on May 3, voters filled a vacancy in the U.S. House, 19th district. The election was technically non-partisan. Together, the eleven Republicans polled 95.12%. The two Democrats together polled 3.93%. Julia Penelope, Green, polled .38%; Richard Peterson, Libertarian, .27%; Thomas Flournoy, Constitution Party, .16%; and an independent polled .14%.

2. Wisconsin: on April 29, voters filled two vacancies in the State Senate. In the 7th district in Milwaukee, the vote was Democratic 70.61%; Green 29.39%. In the same district in November 2002, the vote had been Democratic 79.61%; Green 20.39%.

In the 24th district, the vote was Democratic 62.08%; Republican 29.70%; independent 4.72%; Green 3.50%. The last time this seat was filled, only a Democrat had run.

GREEN PARTY NATIONAL MEETINGS

On or about June 15, the Green Party will choose between Milwaukee, Minneapolis and San Francisco, as the site of its 2004 presidential nominating convention. Also, the party will hold a national committee meeting in Washington, D.C., July 18-20, 2003. The Washington Post on May 27 ran a page two article, reporting that many leading Greens don't want to run a presidential candidate in 2004. Obviously, that will be a topic of conversation at the July 2003 meeting.

LIBERTARIAN PETITIONING IS LAGGING

The Libertarian Party has not failed to place a presidential candidate on the ballot of any state, since 1988. However, for 2004, the party still needs another 220,000 valid signatures, if it is going to place its nominee on all ballots using the easiest method in each state. If it uses the more difficult procedures that it used in 2000 (to qualify the whole party, not just the presidential candidate) it needs 295,000 valid signatures. This translates to more than 400,000 raw signatures. In the last 8 months, the party has only collected 38,000 raw signatures.

GREENS WIN PARTISAN ELECTION

On May 6, New Paltz, New York held a 4-way election for Mayor. Jason West, who was on the ballot with the ballot labels "Innovation" and "Green," won with 37.1% of the vote. The incumbent Mayor, Thomas Nyquist, who is a registered Democrat and who was on the ballot under the partisan label "Village," polled 29.7%. Another registered Democrat, Robert Feldman, on with "Community" as his label, polled 29.3%. A fourth candidate, with the label "Environmental" polled 3.9%. See a copy of the ballot.

Some villages in New York state elect their officers in a normal partisan election. Others, including New Paltz, have elections in which the statewide qualified parties are not permitted to nominate candidates. For these elections, most candidates run as the nominees of parties that exist only in that particular village (all such candidates petition their way onto the ballot). Since the Green Party lost its qualified status in New York state in 2002, it was permitted to nominate candidates in the New Paltz election.

New Paltz is the home of a campus of New York State University, but students did not dominate the voting. The village has approximately 3,000 registered voters, but only 869 people voted. It is estimated that only 200 of these were students. New Paltz is on the west bank of the Hudson Valley, not far from Poughkeepsie.

The Green/Innovation slate also elected both of its nominees for Trustee, so that slate has a majority of 3-2 on the Board of Trustees. Rebecca Rotzler, like West, is a registered Green; the other winner, Julia Walsh, is an independent.

West was the Green Party nominee for Assembly (lower house of the state legislature) in November 2002, but he only polled 2.4% in that race.

CONSTITUTION PARTY CONVENTION

The Constitution Party will probably hold its presidential nominating convention in Philadelphia, late spring 2004.