OKLAHOMA HEARING GOES WELL IN U.S. SUPREME COURT

On January 19, the U.S. Supreme Court heard Clingman v Beaver, 04-37. The case was brought by the Oklahoma Libertarian Party in 2003. The issue is whether the First Amendment’s Association clause protects a party’s decision to invite all voters to vote in its primary.

The U.S. District Court had upheld a law making it illegal for Republicans and Democrats to vote in the Libertarian primary, even if the Libertarians desire such participation. However, the 10^th circuit had reversed the district court. Now, Oklahoma was asking the U.S. Supreme Court to reverse the 10^th circuit.

Oklahoma officials faced a tough challenge, because all previous U.S. Supreme Court precedents on this question had been victories for political party autonomy. In 1986 the Court had struck down a Connecticut law that made it illegal for independent voters to vote in a party’s primary, even when that party wanted them to vote in its primary. And in 2000, the Court had struck down a California law that forced parties to let members of other parties vote in its primary. What both decisions had in common was the principle that political parties, not the government, should decide who should vote in their primaries.

Oklahoma was supported by a brief filed by eight other states: South Dakota, Maryland, Massachusetts, New Hampshire, New Mexico, North Carolina, West Virginia and Utah. Oklahoma and its allies had made four arguments in their written briefs:

1. That election laws that infringe on First Amendment rights are presumed constitutional if they have any rational basis, and if the burdens they impose are not "severe." This is a test set forth by the U.S. Supreme Court in 1992, when it upheld Hawaii’s ban on write-ins, on the grounds that ballot access was easy.

2. If the Libertarian Party is permitted to invite all registered voters into its primary, this will cause certain Republican and Democratic voters not to vote in their own party primaries, and therefore some major party primary election outcomes might change. This was the basis on which the District Court had upheld the law.

3. That closed primaries are more beneficial to society than open primaries are, and that the 1986 Connecticut decision that let parties invite independents into its primaries was a mistake and should be overturned.

4. That if Oklahoma is forced to let the Libertarians invite all registered voters into their primaries, and the major parties continue to be uninterested in doing the same thing, that this would give the Libertarians a public-relations advantage. This, in turn, would threaten "stability," since anything that helps a minor party "injures the two-party system" and causes "instability" (this argument is never fleshed out or clarified).

The written briefs filed by the Libertarian Party had taken great pains to explain why the party wanted to invite all registered voters to vote in its primary. The party had been frank to admit that it is electorally weak. It never appears on the ballot in mid-term gubernatorial election years, and it never has more than 1,000 or so registered voters. This is because the Oklahoma ballot access laws, and the Oklahoma laws on voter registration, hobble all minor parties.

Oklahoma requires a petition signed by 5% of the last vote cast, in order to place a party on the ballot. Once it gets on, it is eliminated from the ballot unless it polls 10% for the office at the top of the ticket (president in some years, governor in other years). Furthermore, when it goes off the ballot, all of the people who registered as members are converted to independents against their will.

Thanks to another lawsuit won by the Libertarians in 1998, people can then re-register back into a party that had just gone off the ballot, for a period of four years. But then, when the four years is up, whether the party re-qualifies for the ballot or not, their voters are again all forcibly converted to independents. With this constant disruption of a minor party’s base of registered voters, many members of the party simply give up and stop registering with the party, knowing of the need to re-do their registration over and over.

Also, Oklahoma refuses to let voters change party affiliation, starting 8 weeks before a primary, ending on the day after the run-off primary. Since a petition to create a new party is due on May 1, and the state has 30 days to check the signatures, voters can’t enroll in the party until approximately June 1. But by that time, only two weeks remain until it becomes illegal for voters to switch parties. This very narrow window for people to register into a new party means that a new party invariably has a tiny number of registered voters. Then, the candidates running in its primary receive miniscule votes on primary day, which makes them look less serious.

The attorney for the state, Wellon Poe, spoke first. The first question from the bench was from Justice O’Connor, who said, "The problem is if the voter wants to disassociate (from the major parties into the Libertarian Party), the window to do so is impossibly short." Poe responded that they have at least two weeks.

Justice Stevens asked if the party could turn in its petitions before the deadline, and Poe said "yes." Justice Souter asked if the state has an interest in insulating the major parties from competition, and Poe responded that the state has an interest in protecting the two-party system.

Justice Kennedy said that in Anderson v Celebrezze (a 1983 U.S. Supreme Court decision won by independent presidential candidate John B. Anderson against Ohio’s early petition deadline), the Court had disallowed that reasoning. Kennedy added that many voters don’t pay attention to the election until the week before the primary, by which time it would be far too late for them to enroll in the Libertarian Party.

Justice Ginsburg said the U.S. District Court had worried about protecting the Democratic and Republican Parties, but they had not sought to intervene in the case, nor had they filed amici briefs. Her point was that if the purpose of the law is to help the major parties, why weren’t they speaking up in defense of the law?

At that point, Justice Scalia jumped in to assist Poe. He said, "If I were the state chair of the Democratic or Republican Parties, I might want the law upheld, but I still wouldn’t intervene in the case because it would look bad to the voters."

Justice Stevens asked, "Is the injury to the major parties that some of their voters might instead vote in the Libertarian primary, or is it the same injury when the major party members don’t bother to turn out to vote in any party primary?" (the Libertarian Party’s brief had emphasized that most registered Republicans and Democrats don’t bother to vote in any primary).

Souter asked, "Is there anything in the record about who these voters (who might choose the Libertarian primary ballot) are? Are they more likely to be committed voters or the type of voters who usually stay at home?" He and Stevens made additional statements that seemed dubious that any real harm would occur.

Justice Scalia said, "I don’t care about damage to the Democratic or Republican Parties, but I care about damage to the Oklahoma election system. Why even have registration by party?" He then seemed to attack the Libertarian Party, to say he was disappointed they seemed to have become a "we only want to win" party.

Attorney for 8 other states

At this point, by prior arrangement, Poe ceded ten minutes of his time to the attorney for the eight states who had filed an amicus brief, Gene Schaerr.

Schaerr started by pointing out that half the states would be affected, if the Court rules in favor of the Libertarian Party. He criticized the 10^th circuit for finding that the burden on the party was "severe." O’Connor again brought up the point about the small amount of time voters have to register into a new party after it qualifies. Schaerr said this was a problem of the party’s own doing, and that it should simply submit its petition sooner (he didn’t acknowledge that the 2006 petition requirement is 73,188 valid signatures).

Breyer tried to summarize the harm done if the party is permitted to hold the kind of primary it wants. He asked, is it to avoid "poaching" the major party voters? Is it to preserve party loyalty? Is there an empirical basis? Do the numbers actually show that independent voters who vote in the Libertarian primary impacted any outcomes in major party primaries? Schaerr responded that the state has an interest in stopping poaching. He mentioned the California gubernatorial semi-closed primary of 2002, in which Democratic incumbent Gray Davis attacked his more formidable Republican opponent in the weeks before the primary, trying to influence Republican voters to nominate the other leading Republican, the one less feared by Davis. Although Davis’ tactic worked, it was not apparent what relevance this had to this case, since California’s primary was not an open primary.

Attorney for the Libertarian Party

Then it was time for Jim Linger, the Libertarian Party’s attorney, to address the court. Linger is not only the attorney who has done virtually all ballot access challenges in Oklahoma for the past 25 years. He is a member of the party himself and understands fully the problems that the state’s hostile election laws create for all minor parties.

Linger’s first question was from Breyer, who said, "If you win, the major parties will also enjoy the freedom to open their primaries." He said, "A lot of parties thought the Alaska ruling was not a wise ruling." He was referring to the fact that in Alaska (which formerly had a government-mandated blanket primary), the current system involves a voluntary blanket primary for the Democratic, Green, Libertarian and Alaskan Independence Parties, versus a semi-closed primary for the Republican Party. In other words, in Alaska (also in Utah, but he didn’t mention Utah), one major party has a closed primary and the other one has some sort of open primary.

Linger reminded the justices that in the 1986 Connecticut decision, footnote 13 had discussed what lower courts should do, if a case like this one ever arose. Footnote 13 said, "The analysis of these situations derives much from the particular facts involved." In other words, in future cases like this one, courts should examine the particular details of why the party was requesting the open primary for itself.

Linger’s briefs had been scrupulous to observe this admonition from the Supreme Court of 1986. Instead of arguing that parties must always have the final word on whom to invite into their primaries in all circumstances, Linger had emphasized the particular characteristics of Oklahoma law that made it desirable for the Libertarians to make their choice: the fact that Oklahoma makes it so difficult for voters to register and stay registered as Libertarians.

For some reason, however, none of the justices seemed to acknowledge this point, and Breyer in particular seemed to be thinking out-loud, trying to decide if the First Amendment mandates that political parties always have unfettered discretion to decide which voters to allow into their primaries.

Scalia again attacked the Libertarian Party, accusing it of abandoning its principles.

Linger said that some people want to vote in the Libertarian primary but because registration is public, they hesitate to register as members. Scalia noted that since Oklahoma law already lets independents vote in the Libertarian primary, those fearful voters could always register as independents. Scalia said that if the party’s motive for its open primary is because of the narrow window for voters to change their registration to "Libertarian," why didn’t the party challenge the time restrictions?

Ginsburg mentioned the 1997 Supreme Court decision that said the First Amendment does not require states to permit two parties to jointly nominate the same candidate. Linger replied that the principles in the two cases are different. He emphasized that the Libertarian Party acknowledges that the state can confine each voter to voting in only one party’s primary. By contrast, in the 1997 case, a candidate wanted to seek the nomination of two different parties.

During the second half of Linger’s 30 minutes, he described the historical clumsiness of the Oklahoma legislature when it writes election laws that impact minor parties. He told them how the state had once made it literally impossible for anyone to be the nominee of a new party, by passing a law making it illegal for potential candidates to have changed political parties during the preceding period. Since it was also illegal for voters to register into an unqualified party, that meant when a new party qualified, it could have no eligible candidates. Linger said that if the Supreme Court upholds the 10^th circuit with a narrow decision, it is possible the legislature will find alternate solutions to the party’s problems. There were few questions or comments to Linger while he was doing this. Toward the end Scalia joked with Linger, mildly poking fun at his pronunciation of "amici."

The final three minutes had been reserved by attorneys for the state, for rebuttal. Poe complained about Linger’s remarks, and said that the Court should not consider other Oklahoma election problems.

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BALLOT ACCESS BILLS

Alaska: SB 76, by the Elections Office, makes two big improvements. It creates procedures for independent presidential candidates. Alaska is one of two states that has no procedure for an independent presidential candidate (the other is Arkansas). Instead, independent presidential candidates must create a new political party. The bill also makes it easier for a party to remain on the ballot, by saying it need not worry about the registration test except in December of mid-term election years.

Arizona: SB 1218, sponsored by the Secretary of State, says if an independent candidate tries and fails to get on the ballot, he or she may not file a write-in declaration of candidacy. This is probably aimed at Ralph Nader. He tried and failed to qualify as an independent. Naturally, when he was kept off, he then filed to have his write-ins counted, and almost 3,000 people wrote him in. Under SB 1218, those people would have been disenfranchised. Please ask the sponsor, Senator Marilyn Jarrett, to drop this provision from her bill. 602-928-5288, or e-mail her at mjarrett@azleg.state.az.us.

Maine: two bills would make it easier for a party to remain on the ballot. LD 254 would lower the vote test from 5% to 1%. LD 329 would provide that the vote test need not be met if a party has registration membership of one-half of 1% of the state total. This would be about 5,000 members.

Massachusetts: legislators from both major parties are sponsoring House Docket 1601, which would cut the number of signatures for an independent presidential candidate from 10,000 to 5,000, and provide that the petition can be submitted to the Secretary of State instead of to each town. House Docket 1601 will receive a bill number in a few days.

Missouri: SB 84 would correct a typographical error in the 1993 ballot access reform bill. It would delete unintended language that requires the petition to create a new party to list the party’s candidates for presidential elector on the petition.

Nebraska: LB 473 would make it easier for a party to remain on the ballot, by providing that it must meet the 5% vote test only every other election, instead of every election. Unfortunately, it would also end the ability of a party to be qualified in just part of the state. However, since it is fairly easy for a party to meet the vote test in a mid-term election, on balance the bill does more good than harm. In mid-term years, Treasurer, Auditor, Secretary of State and Attorney General are elected. Since voters aren’t so concerned about who wins those offices, they are more willing to vote for minor party candidates for those offices. But in presidential years, very few minor parties can poll 5% for president or U.S. Senator. The Secretary of State sponsors the bill.

Oklahoma: HB 1429, by Rep. Marian Cooksey, a Republican, would lower the petition for a new party from 5% of the last vote cast, to a flat 5,000 signatures. It would also lower the vote test from 10% to 1%.

South Carolina: SB77 would make it illegal for a primary voter to sign an independent candidate’s petition.

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OTHER BILLS

Bills to abolish the "straight-ticket" device are pending in Missouri (SB 4 and SB 54), New Hampshire (HB 184), and New Mexico (SB 106).

A New Hampshire bill would outlaw fusion (HB 183). Fusion is currently permitted in New Hampshire, but only if the candidate seeking a 2^nd nomination wins it in the 2^nd party’s primary by write-in votes.

Presidential electors are the subject of bills in at least 8 states. California’s AB 45 would award electoral votes proportionate to each candidate’s share of the popular vote. Bills to let each congressional district elect its own elector are pending in Colorado, Illinois, South Carolina, Tennessee, and Virginia. Arizona’s SB 1205 would remove candidates for presidential elector from the November ballot. Minnesota’s SF 153 and SF 289 would require the presidential electors to stop using a secret ballot when they meet in December.

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2004 MINOR PARTY STATE HOUSE VOTE

--	Libertarian	Green	Constit’n.	Wrk Fam	Indpndnce	Reform	Nat Law	other(1)	other(2)
Alaska	183	0	0	0	0	0	0	3,376	0
Arizona	57,477	0	0	0	0	0	0	0	0
Arkansas	0	0	0	0	0	0	0	0	0
Calif.	329,465	27,182	0	0	0	0	0	5,028	0
Colorado	26,878	1,013	0	0	0	2,909	2,361	0	0
Conn.	1,018	3,054	476	13,830	0	349	0	5,089	0
Del.	874	0	0	0	0	0	0	0	0
Florida	114,020	0	0	0	0	0	0	3,520	0
Georgia	3,481	0	0	0	0	0	0	0	0
Hawaii	364	0	0	0	0	0	0	0	0
Idaho	8,515	0	11,519	0	0	0	3,684	0	0
Illinois	16,727	14,205	0	0	0	0	0	1,466	0
Indiana	29,303	5	0	0	0	0	0	0	0
Iowa	6,223	0	0	0	0	0	0	0	0
Kansas	18,074	0	0	0	0	3,477	0	0	0
Kentucky	0	0	0	0	0	0	0	0	0
Maine	0	15,831	0	0	0	0	0	0	0
Mass.	4,466	10,113	0	0	0	0	0	5,330	1,185
Michigan	19,007	3,925	10,929	0	0	0	0	0	0
Minn.	574	8,452	0	0	28,274	0	0	0	0
Missouri	8,477	3,428	3,770	0	0	0	0	0	0
Montana	0	1,053	6,685	0	0	0	0	0	0
Nevada	1,985	639	26,317	0	0	0	0	0	0
N. Hamp.	3,622	0	328	0	0	0	0	0	0
N. Mex.	1,226	0	0	0	0	0	0	0	0
N. York	1,244	338	0	130,177	186,020	0	0	165,633	0
No. Car.	55,580	0	0	0	0	0	0	0	0
No. Dak.	0	0	0	0	0	0	0	0	0
Ohio	0	0	0	0	0	0	0	0	0
Okla.	3,138	0	0	0	0	0	0	0	0
Oregon	25,085	6,581	22,721	0	0	0	0	2,297	1,000
Penn.	17,610	14,747	1,188	0	0	226	0	0	66
R.I.	0	1,613	0	0	0	0	0	0	0
S.Car.	5,526	4,715	0	0	0	0	0	895	0
S.Dak.	748	0	0	0	0	0	0	0	0
Tenn.	1,143	0	0	0	0	0	0	0	0
Texas	41,720	0	0	0	0	0	0	0	0
Utah	12,196	3,445	13,251	0	0	0	0	3,245	0
Vermont	278	0	0	0	0	0	0	12,039	0
Wash.	36,107	5,700	0	0	0	0	0	0	0
W.Va.	0	0	0	0	0	0	0	0	0
Wisc.	9,259	4,887	5,254	0	0	0	0	0	0
Wyoming	221	0	0	0	0	0	0	0	0
TOTAL	861,814	130,926	102,438	144,007	214,294	6,961	6,045	207,918	2,251

The Green Party elected one representative in Maine, John Eder. Significantly, four other Green Party nominees for lower house of the state legislature outpolled their Republican opponents, although these Greens lost to their Democratic opponents. These races included one in Minnesota, one in Massachusetts, and two others in Maine.

The Libertarian Party’s best legislative showing in the nation was its one nominee in New Hampshire. Lisa Wilber polled 3,622 votes. One of the Democratic nominees in the same district polled 3,800; however the Republican nominees polled more.

See the notes at the bottom of page five to know which parties are listed in the "other" column, and for abbreviations.

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2004 MINOR PARTY STATE SENATE VOTE

-	Libertarian	Constitution	Green	Wkr Fam	Indpndnce	Reform	Nat Law	other(1)	other(2)
Alaska	0	0	0	0	0	0	0	1,152	0
Arizona	31,048	0	0	0	0	0	0	0	0
Arkansas	0	0	0	0	0	0	0	0	0
Calif.	201,221	0	16,644	0	0	0	0	29,425	0
Colorado	16,736	0	0	0	0	0	0	0	0
Conn.	297	0	8,105	20,276	0	0	0	1,584	0
Del.	0	0	0	0	0	0	0	214	0
Florida	45,832	0	0	0	0	0	0	0	0
Georgia	0	0	0	0	0	0	0	0	0
Hawaii	0	0	469	0	0	0	0	0	0
Idaho	0	640	0	0	0	0	1,427	0	0
Illinois	0	0	0	0	0	0	0	0	0
Indiana	23,689	0	0	0	0	0	0	0	0
Iowa	727	0	0	0	0	0	0	0	0
Kansas	4,460	0	0	0	0	7,653	0	0	0
Kentucky	0	3,046	0	0	0	0	0	0	0
Maine	0	0	4,637	0	0	0	0	0	0
Mass.	5,374	0	2,072	0	0	0	0	0	0
Missouri	8,691	1,111	1,967	0	0	0	0	0	0
Montana	0	462	0	0	0	0	0	0	0
Nebraska	0	0	0	0	0	0	0	0	0
Nevada	0	26,374	0	0	0	0	0	0	0
N. Hamp.	0	0	0	0	0	0	0	0	0
N. Mex.	223	0	0	0	0	0	0	0	0
N. York	1,305	0	2,688	114,970	239,975	0	0	189,078	0
No. Car.	46,960	0	0	0	0	0	0	0	0
No. Dak.	0	0	0	0	0	0	0	0	0
Ohio	0	14,509	0	0	0	0	0	0	0
Okla.	0	0	0	0	0	0	0	0	0
Oregon	6,683	26,583	0	0	0	0	0	0	0
Penn.	2,290	8,694	0	0	0	0	0	0	0
R.I.	0	0	1,381	0	0	0	0	0	0
S.Car.	6,219	0	0	0	0	0	0	3,573	0
S.Dak.	0	2,125	0	0	0	0	0	0	0
Tenn.	0	0	0	0	0	0	0	0	0
Texas	11,909	0	0	0	0	0	0	0	0
Utah	2,987	5,590	0	0	0	0	0	338	0
Vermont	0	0	9,650	0	0	0	0	0	1,332
Wash.	6,896	0	0	0	0	0	0	0	0
W.Va.	0	2	0	0	0	0	0	2,032	0
Wisc.	7,288	0	16,807	0	0	0	0	0	0
Wyoming	0	0	0	0	0	0	0	0	0
TOTAL	430,835	89,136	64,420	135,246	239,975	7,653	1,427	227,396	1,332

Abbreviations: "Wk Fam" means "Working Families"; "Indpndnce" means "Independence."

Parties in the "other(1)" column, on both page 4 and 5, are: Alaska, Alaskan Independence; California, Peace & Freedom; Connecticut, Independent Party; Delaware, Independent Party; Florida, British Reformed Sectarian; Illinois, Socialist Equality; Massachusetts, Veterans; New York, Conservative; Oregon, Freedom Socialist; South Carolina, United Citizens; Utah, Personal Choice; Vermont, Progressive; West Virginia, Mountain.

Parties in the "other(2)" column, on both page 4 and 5, are: Massachusetts, 825 Socialist Workers and 360 America First; Oregon, Socialist; Pennsylvania, Socialist Workers; Vermont, Liberty Union.

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N.Y. CONSERVATIVE PARTY HAD WORST SHOWING SINCE 1964

The New York state Conservative Party, formed in 1962, was the United States’ most successful and influential minor party 1970 through 1995. It is the only party, besides the Democratic and Republican Parties, to have won elections to both houses of Congress since 1945. In 1970 its nominee for U.S. Senate, James Buckley, defeated his Republican and Democratic opponents. Also, in the elections 1978-1984, one of its registrants, William Carney, was elected to the U.S. House (however, he was the nominee of the Republican Party as well). The party exercised great influence over New York’s Republican Party, by its power to either cross-endorse Republican nominees, or to run its own nominees. In 1990, when it refused to cross-endorse the Republican, it polled 20.4% for its own nominee for Governor. On December 4, 1996, U.S. Supreme Court Justice Antonin Scalia stated during oral argument that New York has a "3-party system," and undoubtedly he meant that the three major parties of that state were the Republican, Democratic and Conservative Parties.

However, on November 2, 2004, the party had its worst electoral showing since 1964. For president, the party has never had any nominee except the Republican nominee. For President Bush in 2004, it only polled 2.10%, its worst presidential showing ever. In 2004, its nominees for the U.S. House polled 3.71% in the districts in which the party had nominees; this was its worst showing in U.S. House races since 1964. Also in 2004, its State Senate nominees polled 4.20% in the districts in which the party had nominees; this was also its worst showing since 1964. Finally, its 2004 nominees for Assembly polled 4.03% in the districts in which the party had nominees, its worst showing for that office since 1964.

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CONSTITUTION PARTY PARTISAN WIN

On November 2, 2004, Robert Miller, an activist in the Constitution Party, was elected County Surveyor of Grant County, West Virginia. He received ten write-in votes. No one else was running for the post.

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IRAQ ELECTION

The Iraq ballot contains 75 political parties, 9 coalitions of political parties, and 27 slates of independent candidates, for a total of 111 choices. Any of these 111 slates only needs .36% of the vote, in order to elect one member to the 275-member body. This is because Iraq is using Proportional Representation. B.A.N. hopes to carry a picture of the ballot in the March issue.

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VERMONT PROGRESSIVE PARTY LEGISLATOR CHAIRS COMMITTEE

On January 7, Vermont State House of Representative member David Zuckerman was chosen to head the Agriculture Committee. Zuckerman is one of the Progressive Party’s six legislators. It is very unusual for any minor party state legislator to be chosen to chair a committee.

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PRESIDENTIAL VOTE BY REGION

-	Nader	Badnarik	Peroutka	Cobb
West	.83%	.42%	.23%	.26%
Midwest	.59%	.35%	.16%	.11%
Border	.51%	.25%	.15%	.15%
South	.40%	.32%	.17%	.07%
East	1.04%	.26%	.10%	.22%
USA	.67%	.33%	.17%	.18%

This chart shows the percentage of the vote received in each region of the nation, for last year’s minor party and independent presidential candidates who were on the ballot in places containing a majority of all U.S. voters. The "Border" region is Delaware, District of Columbia, Kentucky, Maryland, Missouri, Oklahoma and West Virginia. The figures above only include states in which the candidate was on the ballot. The chart shows that the West is the best region for minor party presidential candidates.

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SUBSCRIBING TO BAN WITH PAYPAL

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