October 1, 2003 – Volume 19, Number 6

1. PENNSYLVANIA NULLIFIES 1999 BALLOT ACCESS VICTORY
2. PA. LAWS VOIDED BY FEDERAL COURTS BUT NEVER AMENDED
3. MINOR PARTIES WIN FIVE LAWSUITS
4. SUPREME COURT HEARING ON CAMPAIGN $$
5. LEGISLATIVE NEWS
6. OTHER LAWSUIT NEWS
7. MASS. FUSION
8. TEXAS CHANGE
9. 2004 PETITIONING FOR PRESIDENT
10. NADER ASKS TO BE LISTED ON CALIF. GREEN PRESIDENTIAL PRIMARY
11. SOCIALIST EQUALITY PARTY
12. LaROUCHE FILES FOR MATCHING FUNDS
13. REFORM PARTY CONVENTION
14. CLAVELLE RUNS FOR GOVERNOR
15. FREEDOM SOCIALIST ELECTION RESULT
16. CALIFORNIA DEBATE BREAK-THROUGH
17. ED FRAMI DIES

PENNSYLVANIA NULLIFIES 1999 BALLOT ACCESS VICTORY

On September 9, Pennsylvania’s Commonwealth Court removed a Reform Party judicial candidate from the November ballot, because he had also sought, and lost, the Democratic and Republican nominations for the same office. In re nom. Paper of Zulick, 534 m.d. 2003. The Reform Party and its candidate, Arthur Zulick, are appealing to the Pennsylvania Supreme Court. The Reform Party is a qualified party in Monroe County, where Zulick is running.

Pennsylvania permits "fusion" for partisan judicial elections. A candidate may seek the nomination of several political parties, and if he or she wins them all, the candidate is listed on the general election ballot with several party labels.

Pennsylvania has two types of "qualified" political parties. Those with registration of 15% nominate by primary. Smaller qualified parties nominate by convention, and then must submit petitions to place their nominees on the November ballot. The Reform Party in Monroe County is a qualified party that nominates by convention.

Pennsylvania election law says that a candidate who loses a primary election cannot appear on the November ballot as the nominee of a qualified minor party. This law is the reason that Zulick is being barred from the November ballot as the Reform Party nominee.

However, that law was declared unconstitutional by the 3^rd Circuit in 1999, in Reform Party v Allegheny County Board of Elections, 174 F 3d 305. The 3^rd circuit had said that since Pennsylvania permits fusion for candidates who win both the Democratic and Republican primaries, therefore Pennsylvania can’t prohibit fusion between a candidate who wins one major party primary and also wins the convention nomination of a qualified minor party.

In that case, the Reform Party candidate had also won the Democratic primary, but had lost the Republican primary. He wanted to be listed in November as the "Democratic, Reform" nominee.

In the 1999 case, the state barred him from the November ballot because he had lost the Republican primary. But the 3^rd circuit voided the "sore loser" law, as it pertains to elections involving qualified minor parties and fusion.

Given the 1999 result, it is shocking that the Commonwealth Court barred Zulick from appearing on the November ballot as the Reform Party nominee. The Commonwealth Court distinguished the 1999 case from the current case by pointing out that in the 1999 case, the plaintiff-candidate had won one primary and lost another one. In the current case, the plaintiff-candidate had lost both primaries.

But the principle remains the same: Pennsylvania was told in 1999 that it cannot discriminate against qualified minor parties, versus major parties. If the winner of either the Democratic or Republican nominee had tried to get the Reform nomination at the Reform Party’s convention, and failed to get it, no one would have then labeled that candidate a "sore loser" and kept him or her off the general election ballot.

There is no difference, in principle, between the 1999 case and the current case. The Commonwealth Court tried to show there is a difference by labeling the 1999 plaintiff-candidate a "happy winner" (since he won one major party primary, but not the other one). It labeled Zulick a "sore loser". But the 1999 candidate had won two party nominations and lost a third one; Zulick has won one party nomination and lost two others. two Reform Party candidates. They were each partially successful and partially unsuccessful.

There is no principle that says a candidate who tries for three party nominations and just gets one, should be treated differently than a candidate who tries for three party nominations and gets two of them.

The Commonwealth Court seemed to sense that its logic was shaky. Therefore, it made a separate claim, that the 3^rd circuit decision from 1999 need not be followed! The Commonwealth Court said, "Decisions of intermediate federal courts are not binding on state courts." It cited Weaver v Pa. Board of Probation and Parole for this conclusion.

Weaver v Pa. Board of Probation was a state case in which a prisoner had first filed a habeus corpus petition with a federal court. The federal court had predicted that the prisoner might succeed in state court, and had therefore dismissed the habeus petition. The prisoner then had gone to state court, arguing that he had a constitutional right to be considered for parole. The state court ruled that no one has a constitutional right to be considered for parole, and in the process said the federal court had been wrong to predict that the state courts might entertain such a case.

One cannot conclude from the Weaver decision that once a federal court has declared a state law unconstitutional, a state court can ignore the federal court ruling. Once a court of competent jurisdiction has ruled a state law unconstitutional, and no appeal is taken, that law is void.

Pennsylvania has six ballot access laws that have been voided by federal courts, but which have never been repealed or amended. They are listed in the next story. If the Pennsylvania state courts continue to find that the state can ignore constitutional judgments of the federal courts, all six issues will be unsettled and Pennsylvania election administration will be chaotic.

PA. LAWS VOIDED BY FEDERAL COURTS BUT NEVER AMENDED

The page one story refers to six Pennsylvania ballot access laws which have been held unconstitutional by federal courts, but which have never been repealed or amended. They are: (1) the law involved in the Zulick case (see preceding story); (2) the petition deadline for minor party and independent candidates, struck down in 1984; (3) the number of signatures needed for statewide minor party nominees in odd years, struck down in 1993; (4) the mandatory filing fee, struck down just last month (see next story); (5) a law requiring circulators to be residents, struck down in 2002; and (6) a law barring independent candidates from the ballot if they were members of a qualified party less than 30 days before they file, struck down in 2001.

MINOR PARTIES WIN FIVE LAWSUITS

Since the September 1 B.A.N. was issued, minor parties have won five constitutional lawsuits around the nation:

Ballot Access: the Pennsylvania Green Party won its lawsuit in the 3^rd circuit against that state’s mandatory filing fee, on September 11. Belitskus v Pizzingrilli, 01-3747. The party had also won the case in the U.S. District Court in August 2001.

In 1972 and again in 1974, the U.S. Supreme Court had unanimously ruled that mandatory filing fees are unconstitutional. These decisions never had a large impact on policy, because lower courts interpreted the Supreme Court decisions to mean that states were still free to keep the fees mandatory for everyone except "paupers". And even "paupers" could be required to submit a petition in lieu of the filing fee.

Still, states must have alternate procedures for impecunious candidates. Pennsylvania argued it need not provide an alternative because no fees are higher than $200. The 3^rd circuit rejected that argument.

The 3^rd circuit also rejected the argument that only someone with no assets or money has standing to challenge the state’s failure to provide an alternative to fees. The court suggested that since Pennsylvania also requires petitions for any candidate seeking to appear on either a primary or a general election ballot, there may not be any good reason for the state to require fees from any candidates.

The decision ended by saying "The only way in which to resolve the problems that give rise to this litigation is for the legislature to amend the statutes at issue to comply with the Supreme Court’s ballot access jurisprudence."

The only other states that still have mandatory fees for all candidates are Mississippi and Ohio, where the maximum fees are $150 and $200.

Registration into a Non-Qualified Party: on September 19, U.S. District Court Judge John Gleeson ruled that New York must permit voters to register into parties that may never have been qualified parties in the state. However, these parties must have placed statewide nominees on the ballot in the last general election. Green Party of N.Y. v New York State Board of Elections, 02-cv-6465.

Judge Gleeson had already ruled (on May 30) that the state must let voters register into parties that had recently been qualified parties, but which had lost their qualified status. The new ruling came as a result of intervention by some political parties that hadn’t been part of the original case.

Gleeson ruled that the state need not list the unqualified parties on the voter registration form. Instead, the form will carry a blank line, and voters who want to register into an unqualified party must write it in.

As a result of the recent ruling, New York voters are physically free to register as members of any party, via the blank line. However, the state need only tally voters who register in the Green, Liberal, Right to Life, Libertarian and Marijuana Reform Parties. These are the unqualified parties that ran statewide in 2002.

Of course, the state will also tally voters who register into one of the state’s qualified parties: Republican, Democratic, Conservative, Independence, and Working Families. Each of the qualified parties continues to have its own checkbox on the form.

Iowa is now the only state in the U.S. in which it is physically impossible for a voter to register into any party other than the Democratic and Republican Parties.

Political Party Autonomy: two cases were won, over letting political parties decide for themselves who may vote in their primaries.

In Washington, the 9^th circuit ruled on September 15 that the state cannot force political parties to nominate their candidates in a blanket primary. Democratic Party of Washington v Reed, 02-35422. A "blanket primary" is one in which all candidates of all parties are on a single primary ballot. A primary voter is free to vote for members of different parties for different offices. The Democratic, Republican and Libertarian Parties had challenged Washington’s primary system. They had lost the case in U.S. District Court, but have now won. The state is seeking a rehearing. Washington had been the last "blanket primary" state in the union.

In New York, a State Supreme Court Judge ruled on September 3 that independent voters must be permitted to vote in the Independence Party’s primary. Van Allen v Democratic State Committee, Albany Co., 5888-02. The Independence Party wants independent voters to vote in its primary for statewide offices, and had filed its own lawsuit on this subject in federal court recently.

The Van Allen case includes a second plaintiff, Christopher Strunk, who is an enrolled member of the Independence Party, but the lawsuit does not include the party itself. However, the judge implicitly ruled that plaintiffs have standing to attack the state law that bars all independent voters from voting in any party’s primary. The Van Allen plaintiffs seek additional relief that was not granted.

Disclosure of campaign donors: the Freedom Socialist Party won an injunction on August 28, permitting its candidate for Seattle city council to withhold the names of people who donated money to her campaign. Averill v City of Seattle, U.S. District Court, Seattle, C03-2508.

Back in 1982, the U.S. Supreme Court had ruled that minor parties can gain an exemption from campaign disclosure laws, if they can show that people publicly identified with the party are likely to suffer harassment. The Freedom Socialist Party is only the fourth political party to win such an exemption. Twenty years ago the Communist and Socialist Workers Party won such exemptions, and fourteen years ago the Socialist Action Party did so.

SUPREME COURT HEARING ON CAMPAIGN $$

On September 8, the U.S. Supreme Court heard McConnell v Federal Election Commission, 02-1674. The hearing generated such interest, C-SPAN carried an audio tape of the hearing. The issue is whether the McCain-Feingold campaign finance law is constitutional. The Court heard two hours in the morning on restrictions on political parties. In the afternoon, it heard two more hours about the ban on broadcast ads paid for by corporations or labor unions, during election season, that mention candidates for federal office. The Court also heard arguments on the ban on contributions to parties or candidates by people under age 18.

The only minor political party in the case is the Libertarian Party. None of the attorneys, and none of the justices, said anything whatsoever about the law’s effect on minor parties, even though minor parties had been mentioned in the briefs on both sides.

After the hearing, most observers predicted that Justices Rehnquist, Kennedy, Scalia, and Thomas will strike down most or all of the law’s restrictions on political parties.

The same observers predicted that Justices Stevens, Souter, Ginsburg and Breyer will uphold most or all of the restrictions on parties. And those observers generally said that Justice O’Connor is unpredictable.

During the session on political parties, O’Connor only asked questions twice. She asked if the prior law, the Federal Election Campaign Act passed in 1974, is also unconstitutional. Kenneth Starr, who is the attorney for Senator Mitch McConnell, said "no". Later, O’Connor asked Bobby Burchfield, the attorney for the political parties, whether there is evidence that large donations to state political parties cause corruption. However, that question never got answered.

The McCain-Feingold law on political parties is extraordinarily complicated. It is likely that none of the Justices, and perhaps none of the attorneys, had a perfectly clear picture of these provisions in their heads. For that reason, the arguments about this part of the law were muddled. By contrast, the afternoon arguments, concerning bans on certain types of ads, and bans on certain political activity by people under age 18, were well-focused, clear and riveting. Some of the justices in the afternoon referred to the brief filed by Congressman Ron Paul and several Libertarian activists, who had argued that the "freedom of the press" portion of the First Amendment is relevant to the case.

LEGISLATIVE NEWS

Alabama: in a stunning development, the legislature (meeting in special session) passed HB 3 on September 24. It makes it fairly simple for most ex-felons to regain the right to register to vote. Governor Bob Riley signed it on September 26. He had vetoed a similar bill earlier this year.

District of Columbia: city councilman Vincent Orange expects to introduce a bill revising ballot access procedures by October 10.

California (1): SB 430, to move the primary (for office other than president) from March to June, failed.

California (2): AB 1680 passed the legislature on September 12. It is designed to solve the Republican Party’s timing problem. The party national convention won’t choose presidential and vice-presidential candidates until September 2, which is past the date by which state certifies candidates for the November ballot. Unlike bills on this subject in other states, which actually moved the deadline to a later day, this bill tells the Republican Party state chair to guess as to who will be chosen, and certify his guesses. The bill doesn’t explain what should be done if the guesses turn out to be wrong.

California (3): State Senator John Vasconcellos introduced SCA 14 on the last day of this year’s legislative session. It will probably make headway in January 2004. It amends the state Constitution to require Instant-Runoff Voting in statewide elections; "none-of-the-above"; relaxes legislative term limits somewhat; provides for a non-partisan method of drawing district boundaries; and puts the primary in September. If it passes the legislature by August 2004, voters will vote on it in November 2004. It already has 5 co-sponsors.

Massachusetts: hearings on three Instant-Runoff Voting bills were held on September 18. They are H2784, H2785, and H2952. Legislators were very interested in the testimony, which was entirely in favor of the bills. Elections officials were present and did not oppose the bills.

New York: On September 25, the legislature finally sent S5698 to Governor Pataki, who must sign it or veto it by October 7. It makes presidential primary ballot access much easier.

Ohio: HB 90, which would move the primary (including the presidential primary) from March to May, is not expected to pass.

Washington: influential legislators will try to pass a bill, eliminating the presidential primary for 2004, in a special session in early December. The motive is to save money. The Democratic presidential primary doesn’t actually choose the delegates anyway, and the Republicans as yet have no contest.

OTHER LAWSUIT NEWS

California: Southwest Voter Registration Ed. Project v Shelley, 03-56498, surely set some judicial speed records. The 9^th circuit ruled on September 15 that the recall could not be held on October 7. On September 19, the court agreed to a rehearing. The new hearing was on September 22, and the new decision appeared at 9 a.m., September 23.

The basis for the original 9^th circuit decision was that 44% of voters would be using punchcards, which had been de-certified in 2001. The rehearing panel, in its reversal, said the harm done by punchcards isn’t as great as the harm of stopping an election that is already underway. Both opinions will be reported.

California (2): the 9^th circuit will hear Weber v Jones, 02-56726, on October 8 in Pasadena. The issue is whether touch-screen voting systems should produce a paper trail. www.electionguardians.org/Weber.

Idaho: on September 8, the 9^th circuit ruled that the state’s initiative law cannot require signatures from half of the state’s 44 counties. The basis is that counties are unequal in population. The 9^th circuit cited Bush v Gore, as well as other precedents, including an identical decision of the Utah Supreme Court. Idaho Coalition for Bears v Cenarrusa, 02-35030. This decision may put pressure on Pennsylvania to revise its primary ballot access law. Pennsylvania is the only state that still has a county distribution requirement for statewide candidate petitions.

Illinois: on September 19, U.S. District Court Judge Ronald Guzman, a Clinton appointee, upheld state absentee voting laws. Griffin v Roupas, 02c-5270. Voters who will be out of the county on election day may vote absentee. Some voters who work long hours on election day, and who have long commutes, but who do not cross county lines to go to work, brought the lawsuit. They say that by the time they get home from work and pick up their children, it is too late to vote. They want to vote absentee. They will appeal.

Indiana: this state prints party logos on general election ballots (a "logo" is a small picture of a political party’s symbol or emblem). The original purpose of printing logos on ballots was to help voters who cannot read. The Republican Party recently changed its logo from an eagle, to an eagle plus the words "The A Team". The Democratic Party recently filed a lawsuit against printing that on the November 2003 ballot. State ex rel Sanders v Sadler, Marion Co., 49d07-0309pl-1709. The lawsuit says the new logo is illegal because it amounts to electioneering at the polls. A decision is expected by October 3.

Maryland: on September 5, the State Court of Appeal affirmed the decision of a lower state court. That decision struck down a state law, making it illegal to pay people on election day to get out the vote. State v Brookins, no. 19, Sep. 2003 term.

Maryland (2): on September 11, the State Court of Appeal responded to the state’s request for a rehearing in Maryland Green Party v Board of Elections. As reported in the September 1 B.A.N., that court had ruled that inactive voters may sign petitions. The State Board of Elections asked for a rehearing, claiming that federal law forbids inactive voters to sign petitions. The Court expressed skepticism, but directed a lower court to hear that point in greater detail. The State Board’s claim seems absurd on its face, since only seven other states refuse to let inactive voters sign petitions.

Mississippi: on September 23, the Reform, Green and Constitution Party nominees for Governor filed a lawsuit in federal court, to gain entry into the gubernatorial debates. O’Hara v Barbour, 3:03cv-1128-LN. The debates are being held at two state universities.

Montana: on September 11, the 9^th circuit upheld a state law that sets a ceiling on the amount of money a candidate for state office can receive from all political action committees. The vote was 2-1. Montana Right to Life v Eddleman, 00-35924.

New York: on July 1, the 2^nd circuit dismissed the lawsuit Kaloshi v Spitzer, 02-9075, on procedural grounds. Plaintiffs had been hoping to win a ruling that a petition circulator of one party can circulate a primary petition for a candidate of another party. But the 2^nd circuit said the plaintiffs don’t have standing.

New York (2): the Working Families Party filed a lawsuit on July 30, to force the New York city Board of Elections to replace a device in the mechanical voting machines, that helps voters to know when they have cast an invalid vote. Working Families Party v N.Y. City Board of Elections, cv03-3701, Brooklyn.

North Carolina: on September 23, the 4^th circuit struck down a state law that defines "political committees", and that limits donations to such committees. If a group meets that definition, it is subject to reporting requirements, and cannot accept contributions greater than $4,000, if the money is to be used for independent expenditures in candidate elections. The Court ruled that the definition of "political committee" is too broad, and also struck down the limit on contributions to such committees. N.C. Right to Life v Leake, 02-2052.

Utah: on September 15, the 10^th circuit heard arguments in Initiative & Referendum Institute v Leavitt, 02-4105. The issue is whether state governments can provide that initiatives on certain particular subjects, such as wildlife issues, need a two-thirds majority to pass, whereas most initiatives only need a majority.

MASS. FUSION

The proposed initiative to legalize "fusion" in Massachusetts has been dropped. Backers of the idea will instead try to persuade the legislature to pass the idea next year.

TEXAS CHANGE

On September 13, Texas voters amended their state constitution. In the future, when only one candidate is running in either a primary or general election, that office will be removed from the ballot.

2004 PETITIONING FOR PRESIDENT

# allows partisan label.
* means entry changed since the last issue of B.A.N.
"(reg.)" means a party must have a certain number of registered voters.
All dates in "deadline" column are 2004.

NADER ASKS TO BE LISTED ON CALIF. GREEN PRESIDENTIAL PRIMARY

In California, minor parties that are entitled to their own primary tell elections officials which presidential candidates to list on presidential primary ballots. The Green Party of California has already asked the Secretary of State to list these four candidates: Ralph Nader, David Cobb, Lorna Salzman and Kent Mesplay. Each of the four had requested the party to submit their names. The party is free to submit additional names during the next month.

David Cobb is the Green Party’s national counsel, and lives in California. Lorna Salzman is a long-time activist of the New York Greens. Kent Mesplay is a Californian.

SOCIALIST EQUALITY PARTY

The Socialist Equality Party, formerly the Workers League, has a candidate on the California gubernatorial ballot. He is John C. Burton. He is the first nominee that party has run for any public office anywhere in the U.S., since 1996. For more information about the party, see www.wsws.org.

LaROUCHE FILES FOR MATCHING FUNDS

According to the Federal Election Commission’s web page, only two individuals have filed for primary season matching funds so far this year: Howard Dean and Lyndon LaRouche. Both are seeking the Democratic nomination.

In total contributions so far, LaRouche has received more in this campaign than either Senator Bob Graham or Congressman Dennis Kucinich.

Primary season matching funds aren’t payable until January of a presidential election year, so there will be other submissions in the next few months.

REFORM PARTY CONVENTION

The Reform Party will hold its presidential convention August 13-15, 2004. The city will be chosen soon.

CLAVELLE RUNS FOR GOVERNOR

Peter Clavelle has been elected Mayor of Burlington, Vermont, for the last seven terms, each time as the Progressive Party nominee (Burlington has partisan city elections).

He is running for Governor, and he will try to get both the Democratic and the Progressive nominations. Since Vermont doesn’t permit anyone to place his name on the primary ballot of two different parties, he can only achieve his goal by winning as a write-in candidate in one party’s primary. He will place his name on the Democratic primary, and will seek write-ins in the Progressive primary.

FREEDOM SOCIALIST ELECTION RESULT

Linda Averill, the Freedom Socialist Party candidate for Seattle city council on September 16, polled 10.1% of the total vote cast. Six candidates appeared on the ballot; Averill placed fourth. Averill is the candidate who won the lawsuit, permitting her not to disclose her campaign contributors (see page two). Seattle has non-partisan elections.

CALIFORNIA DEBATE BREAK-THROUGH

On September 24, five candidates for California governor debated: Democrat Cruz Bustamante, Republicans Arnold Schwarzenegger and Tom McClintock, Green Peter Camejo, and independent Arianna Huffington. This was the first time that a member of a minor party had ever debated all of his or her major party opponents, on television, in a California gubernatorial election.

ED FRAMI DIES

On September 12, Ed Frami, 49, of Wisconsin, died of a stroke. He had been national vice-chairman of the Constitution Party. Also, he had been one of that party’s most active campaigners against bad ballot access laws. He had initiated the lawsuit Frami v Ponto. That case resulted in the first reported decision that states cannot bar out-of-staters from petitioning for candidates. The case was won six months ago.