NEW YORK EASES PRESIDENTIAL PRIMARY BALLOT ACCESS

On October 1, New York Governor George Pataki signed S5698, the bill to ease presidential primary ballot access for the Republican Party and for any other party that wants to use the Republican Party’s plan. The bill had passed the legislature on June 20, but the legislature had not sent the bill to Pataki until September 25.

For the first time ever, it will be possible for presidential candidates to appear in a New York presidential primary without having to submit a petition (however, the Democratic Party will continue using a harsher alternate method in the law, so that Democrats will still need 5,000 signatures). The new Republican plan requires that the presidential candidate qualify for primary season matching funds, or that he or she be discussed in news media, or that he or she submit 5,000 signatures.

New York has been holding presidential primaries since 1980, but no primary is held if only one presidential candidate gets on the ballot. New York’s petitioning rules had been so burdensome for the Republican primary, that only one candidate (the one backed by the state party organization) was ever able to qualify, for all years 1980-1992.

The Republican rules in effect 1980-1992 required presidential candidates to submit a separate petition in each congressional district. Candidates could qualify in some districts, but not other districts. Each district petition needed 1,250 signatures of registered Republicans, or 5% of the number of registered Republicans in the district, whichever was less. These requirements were held unconstitutional by the 2^nd circuit in 1996 in Rockefeller v Powers.

The requirement was then lowered to one-half of 1% of the number of registered Republicans in each district, plus a separate statewide petition of 5,000 signatures.

That amounted to 15,500 signatures on district petitions, and another 5,000 signatures on a statewide petition. Under this standard, in 1996, Bob Dole and Steve Forbes qualified in all districts, and Pat Buchanan qualified in some districts.

In 2000, under the same plan, George W. Bush, Steve Forbes and John McCain were able to qualify. However, Forbes and McCain were only able to qualify after winning a lawsuit against another law, making it illegal for circulators to work outside their home district. Alan Keyes was also put on the ballot as a result of this decision, even though he hadn’t even done the statewide petition. That case was called Molinari v Powers.

As a result of the change, it will be possible for someone who qualifies for federal matching funds to appear on the ballot in all Republican presidential primaries in the nation, with only 23,500 valid signatures. By contrast, an independent or new party presidential nominee needs about 625,000 valid signatures (using the easier method in each state) to get on the November ballot in all states.

The Independence Party will probably use the new rules for its presidential primary. The Working Family and Conservative Parties won’t hold a presidential primary.

Virginia now has the most severe ballot access in presidential primaries, for candidates who qualify for primary matching funds. Virginia requires 10,000 signatures. This year, the Democratic Party of Virginia is collecting 5,000 signatures for each of nine favored candidates seeking a spot on that state’s ballot, so that each of those nine candidates will only need to get 5,000 signatures on their own. The Virginia Democratic Party tried and failed to get the legislature to ease the law, earlier this year.

On October 9, the First Circuit agreed with the U.S. District Court, that Puerto Rico cannot require that someone who circulates a petition to get a new party on the ballot must be both an attorney and a notary. Perez-Guzman v Gracia, 03-1621.

Puerto Rico only has 7,000 individuals who are both notaries and attorneys. The law is so restrictive, since it has existed, only one new party has ever qualified for the ballot, and that was back in 1984. New parties need petitions signed by 5% of the last gubernatorial vote, approximately 100,000 signatures. Puerto Rico has three qualified parties.

There is great resistance against new parties in Puerto Rico, since all qualified parties receive public funding of $600,000 in election years, and $300,000 in non-election years.

The decision is the first instance at which the First Circuit had ever ruled in favor of a minor party, on any issue. The First Circuit had been the only circuit where a minor political party had never won a lawsuit. The First Circuit covers most of New England, and Puerto Rico.

The decision was written by Judge Bruce Selya, a Reagan appointee, and co-signed by Judge Walter Stapleton, another Reagan appointee, and Judge Jeffrey Howard, a Bush Jr. appointee.

The government of Puerto Rico had tried hard to win this case. Since the Puerto Rico Supreme Court had upheld the same law in 2000, in a lawsuit brought by the Civic Action Party, attorneys for Puerto Rico had insisted that the federal court has no right to hear this case. The 1^st circuit opinion is quite lengthy, in order to deal with these procedural issues. This case was brought by a member of the Civic Action Party, but he wasn’t a member when the 2000 case had been filed.

On October 2, an Alaska Superior Court ruled that political parties have a right to demand a blanket primary if they want one. In this case, the Green and Republican Moderate Parties wanted the state to print a blanket primary ballot, on which members of those parties who are running for office would appear. Then, any voter would be free to choose this primary ballot. The top vote-getter from each party would advance to the November election.

Currently, Alaska has a semi-closed primary, in which every party has its own primary ballot. Independents can choose to vote in any party’s primary.

The court said, "Political parties have the right to open or close their primaries to any class of voters." Green Party of Alaska v State, 3AN-02-10451. No one knows yet if the state will appeal. The Green and Republican Moderate Parties are hoping that the state won’t appeal. If there is no appeal, they believe that the Democratic Party will decide to use that same blanket primary ballot in 2004. A blanket primary ballot containing all the Democratic candidates would have more voter appeal than a ballot just containing Greens and Republican Moderates.

This is probably the most radical victory that political parties have ever won, on the question of controlling their own primaries. The U.S. Supreme Court has already ruled that parties can avoid a blanket primary if they wish. The Supreme Court has also ruled that parties may invite independents into their primaries if they wish. Lower courts, of course, follow these Supreme Court rulings, but they have been timid about letting parties try other variations. For example, last year a U.S. District Court in Oklahoma refused to let the Libertarian Party invite all registered voters into its primary (that case is being appealed). We are still awaiting a decision from the 9^th circuit on whether the Arizona Libertarian Party can exclude independents from its primary.

This is the case covered on page one of the Oct. 1, 2003 B.A.N. The issue is whether Pennsylvania can discriminate against qualified parties that nominate by convention, compared to qualified parties that nominate by primary. Specifically, can the state impose a "sore loser" law on convention parties, but not primary parties? The answer will determine whether the Reform Party’s candidate for Superior Judge of Monroe County, Arthur Zulick, will appear on the November 4, 2003 ballot.

Monroe County uses mechanical voting machines. A candidate can be added to the ballot as late as two days before the election.

The Reform Party of Monroe County filed a parallel case in federal court last month, but that court refused to rule, since the issue is still in state court. Reform Party v Dept. of State, 3:03cv-1799, decided October 16.

California: the case which makes it impossible for a political party to nominate someone who has been a member of another party in the preceding year is being appealed to the U.S. Supreme Court. Van Susteren v Shelley, case number hasn’t been assigned yet. The Coalition for Free & Open Elections (COFOE) made this appeal possible by paying for the printing of the initial brief.

California (2): on October 6, the U.S. Supreme Court refused to hear Rubin v Santa Monica, 03-50. California prints occupations of candidates on ballots, and Jerry Rubin, running for city council, wanted "peace activist" as his occupation. Rubin now says he will change his name, so that "Peace Activist" will be his middle name.

Delaware: on October 28 (after this newsletter went to print), the 3^rd circuit held a hearing in Biener v Calio, 03-1607, over the state’s high filing fees. Paupers are exempt, but the fees are otherwise mandatory. The hearing was before Judges Anthony Scirica and Richard Nygaard, Reagan appointees, and Thomas Ambro, a Clinton appointee.

Indiana: on October 8, a Superior Court Judge in Indianapolis ruled that the Republican Party cannot use a logo on the November ballot that contains the slogan "The A Team" next to the party’s traditional eagle. Judge James Harris said this is "electioneering", which is banned at the polls. He said the intent of printing a party logo on the ballot is to help the voters find their candidates, not to persuade them to vote a certain way. Sanders v Sadler, 49DO7-0309-PL-1709. The Republican Party will appeal after the election is over.

New York: on October 7, the New York city Board of Elections settled a federal lawsuit and promised to restore a gadget to the mechanical voting machines, that makes it easier for the voters to cast a valid vote. Working Families Party v New York City Bd. of Elections, Brooklyn, cv03-3701.

New York (2): on September 30, a U.S. District Court Judge in Syracuse refused to order the state to stop printing this language on voter registration forms: "In order to vote in a primary election, you must be enrolled in a party." Fitzgerald v N.Y. State Bd. of Election, 02-cv-926. It was shortsighted of the judge to issue his ruling when he did; he should have waited until we know if the Independence Party will be permitted to invite independents to vote in its primary (see next paragraph). Plaintiffs are appealing.

New York (4): on October 20, a State Supreme Court Appellate panel upheld a city law, excluding city initiatives from the ballot in years when the city government itself has put questions on that same ballot. The ruling means that an initiative on school size, which had obtained 115,000 signatures, cannot appear on this year’s ballot. And if the proponents want it to appear on a future city ballot, they must do the petition all over again. Weingarten v Robles.

Oklahoma: the Libertarian Party is about to file a new lawsuit against the state’s restrictive ballot access laws for new and minor parties. A registered Libertarian tried to qualify as an independent candidate in an upcoming special legislative election, but he was refused.

Any registered voter in the district is able to qualify for the ballot in such an election just by paying a filing fee, with the sole exception of voters who are registered "Libertarian". They are expected to get 51,781 valid signatures, in order to qualify. This situation is so outlandish, it is difficult to imagine how a court will uphold the law. A decision will be made soon as to whether the case will be filed in federal or state court.

West Virginia: the Libertarian Party hopes for a hearing on injunctive relief in a few weeks, in McClure v Manchin, 1:3cv205. This case attacks two laws. One requires circulators to tell voters that if they sign the petition, they can’t vote in the primary (even though voters can do both). The other law makes it illegal to circulate a petition, unless one has obtained a government license in advance.

An initiative is circulating in California that, if passed, would end minor party fall campaigns for congressional and state offices. The "Voter Choice Open Primary" would provide for a ballot in March that would include all candidates for all congressional and state office. All voters would receive this ballot. Then, only the top two vote-getters would be permitted onto the November ballot.

Steve Westly, California’s Democratic State Controller, is sponsoring the initiative. The initiative is also supported by some former liberal Republican lawmakers, including Richard Riordan (former Mayor of Los Angeles), former State Senator Becky Morgan, and former Assemblyman William Bagley. These individuals believe that liberal Republicans and conservative Democrats lose primaries too frequently, and thus never get a fair chance to appear on the general election ballot.

They feel that if elections were conducted so that every voter has the same ballot in March (a ballot containing the names of all candidates), and only the top two vote-getters went on the November ballot, that such liberal Republicans and conservative Democrats would win more often.

Westly and the other proponents know that their idea would remove minor party members from the November ballot. They have been told that research on past "blanket primaries" in California (conducted in 1998 and 2000, and in all special elections back to 1967) shows that only Democrats and Republicans ever place first or second in such primaries. They have also been told that federal law mandates that congressional elections be held in November (federal law also lets states hold a December run-off, if they wish).

Consequently, the March vote that they propose, cannot legally be a true "election". Instead, it will function as a screening device for the November election.

However, the U.S. Supreme Court has ruled many times that a hurdle that keeps all minor party and independent candidates off the November ballot, violates Freedom of Association, which is part of the First Amendment.

Sponsors of the initiative have brushed these objections away. COFOE (the Coalition for Free and Open Elections) recently posted a press release to US News Wire, and paid to have this release sent to all California media outlets. The press release announces that the COFOE Board has unanimously voted to oppose the Westly initiative, and explains COFOE’s objections.

An initiative similar to the California one described above may soon circulate in Washington State. The Grange, a pressure group representing farmers, says it will circulate a similar initiative if the state legislature doesn’t enact the plan into law. However, the legislature won’t be in session for general purposes until next year, so nothing will happen for at least four months.

Texas: HB 1, special session, was signed into law on October 17. It moves the 2004 primary from the first Tuesday in March, to the second Tuesday in March.

The October 7 California gubernatorial official totals still aren’t known, and won’t be until the second week in November. Unofficial totals for the various minor party members who ran are: