WASHINGTON "TOP-TWO" HELD UNCONSTITUTIONAL

On July 15, U.S. District Court Judge Thomas Zilly, a Reagan appointee, ruled that Washington state’s primary system violates the First Amendment’s Freedom of Association clause. Washington State Republican Party v Logan, C05-927, Seattle. The state will appeal to the 9^th circuit, but not on an expedited basis. Therefore, this year’s partisan county elections will use an open primary, not the "top-two" primary. Minor party and independent candidates will be able to petition their way onto the November 2005 ballot.

The Washington state primary system, passed by the voters last year, Initiative 872, mandates that all candidates run in the September primary. Then, only the top two vote-getters appear on the November ballot. History shows that this system invariably means only Democrats and Republicans appear on the November ballot. The voters of California, also in November 2004, had defeated an initiative that was almost identical, Proposition 62.

In essence, Judge Zilly wrote that when a state prints party labels on ballots, it is holding a partisan election, not a non-partisan election. And when a state uses partisan elections, it must respect the desires of political parties to let only their own members (loosely defined) choose the party’s nominees.

The state had argued that its elections are non-partisan, and therefore political party associational rights are immaterial. The state said that party labels on the ballot do not mean anything about the parties themselves. The state said the party labels are just clues to the philosophy of each candidate. However, other state election laws, such as the one defining "qualified party," undercut this claim. A qualified party in Washington is a group that polled 5% of the vote for any statewide race at the last statewide election.

A qualified party has the right to elect officers at the primary, and to enjoy certain other privileges not given to mere interest groups. If the state really had non-partisan elections, it would not carry out these activities.

The Republican Party had filed the lawsuit. The Democratic and Libertarian Parties had intervened on the side of the Republican Party.

The Libertarian Party had argued that "top-two" violates the U.S. Supreme Court’s ballot access precedents, but the decision does not concern that point. The decision merely says, "The Court does not reach the minor party ballot access issue."

This is only the third constitutional lawsuit any minor political party has won so far in 2005. The other two decisions are from New York. The first one was Green Party of New York v State Board of Elections, which was finally won on April 22, 2005. On that day, a New York law prohibiting people from registering into unqualified parties was held unconstitutional. That had been no surprise, since a U.S. District court had issued an injunction against it in 2003, and the 2^nd circuit had agreed in 2004. For the other case from New York, see item #3.

On July 21, Oregon Governor signed HB 2614, which makes it illegal for voters who vote in a primary to sign an independent candidate petition. The bill has no effect on petitions to create a new party.

The Secretary of State has not yet ruled on how to handle instances when a voter signs an independent candidate petition before voting in the primary. No law prevents an independent candidate from circulating a petition as early as he or she wishes. HB 2614 is badly worded and does not discuss this problem.

On June 27, the 2^nd circuit declined to overturn a U.S. District Court injunction in Independence Party of Richmond County v Graham, 04-4859. The 2^nd circuit said the case is moot.

Last year, a U.S. District Court had ruled that New York must let independent voters vote in the Independence Party’s primary for Assembly in the 61^st district, on Staten Island. The state had appealed, claiming that the party’s county executive committee did not have authority to make such a decision.

That September 2004 primary made history; it was the first primary in New York that had ever permitted independent voters to vote. For such a historic event, the turnout was low. Two members of the party competed in the September 14, 2004 primary; one defeated the other by 30 to 16. Election officials did not keep a separate tally of how many of these votes were cast by independents, and how many by members of the party. The district had 1,942 Independence Party members, and 11,379 independent voters. There had been little time for the party to publicize the fact that independent voters could vote in its primary. The party had won the lawsuit less than two weeks before the primary.

On July 14, Missouri Governor Matt Blunt vetoed HB 525, which would have given a new party the flexibility to decide whether to run a presidential candidate, after the party gets on the ballot. The Governor said he did not oppose this idea, but he opposed some campaign finance changes that were made in the same bill. The legislature’s web page erroneously said that the Governor had signed the bill.

Alaska: HB 94 was signed into law on June 27. The state finally, for the first time in history, has a procedure for independent presidential candidates to get on the ballot.

Indiana: SB 467 was signed on May 12. It ends the subsidy to parties that polled 10% or more of the vote in the last election that had been in effect for over twenty years. Proceeds from the sale of personalized license plates had been transferred to the Democratic and Republican Parties. The law had been upheld in federal court in 1984.

Louisiana: on July 1, SB 53 was signed. It moves congressional elections from a November/December pattern, to a September/November schedule. The bill cannot go into effect unless federal Judge Frank Polozola approves it, since the same schedule was held illegal (because it conflicts with federal law) in 1997.

Maryland: on July 21, the Frederick City Council passed an ordinance easing ballot access for minor parties. Even though the Green, Libertarian, Populist and Constitution Parties are qualified in the state, the city had its own rules, and only recognized the Democratic and Republican Parties. The new city law follows state law for party recognition in city elections.

New Jersey: on July 7, A30 was signed into law. It moves the presidential primary from June to late February. The change has no effect on the June primary for other office, nor on any independent or minor party petition deadlines. As a result of this change, and the Arkansas change earlier this year, only twelve states hold presidential primaries later than mid-March: Alabama, California, Idaho, Indiana, Kentucky, Montana, Nebraska, New Mexico, Oregon, Pennsylvania, South Dakota and West Virginia.

North Carolina: bills on ballot access and Instant-Runoff voting have not moved lately, because the legislature is working on the budget. But the legislature will probably settle the budget soon, and then spend a month on ordinary bills.

Pennsylvania: on July 20, the Socialist Workers Party nominee for Mayor of Pittsburgh, Jay Ressler, won a concession that the state’s loyalty oath for state and local candidates is unconstitutional. Therefore, he will be on the ballot, even though he wouldn’t sign a statement that he is not a "subversive person."

Washington: on July 14, the Seattle Elections Commission voted to exempt a Socialist Workers Party candidate for Mayor from identifying his campaign contributors. The election is non-partisan. The SWP won a U.S. Supreme Court decision in 1982 that it need not identify its campaign contributors because the evidence showed that persons known to support the party are often harassed.

For thirty years, minor parties in Michigan have suffered from the refusal of state courts to adjudicate disputes about who the legal party officers are. Courts in other states routinely settle such disputes when they arise. But in 1976, 1980, 2000 and 2004, intraparty squabbles arose in Michigan, and the courts refused to settle these disputes. In all four instances, the state kept party nominees off the ballot, on the grounds that there was no way to know which nominees were legitimate.

Finally, a state court in Michigan has actually adjudicated such a dispute. On March 9, the 30^th circuit court ruled that Cal Zastrow, not Bill McMaster, is the state chair of the Constitution Party (in Michigan, the Constitution Party name is U.S. Taxpayers Party). U.S. Taxpayers Party of Michigan v McMaster, 04-716-CZ.

On July 12, New Mexico’s Secretary of State confirmed that the Green and Constitution Parties are ballot-qualified. The law is difficult to understand, but the ruling means that parties are not disqualified until they have failed the vote test twice in a row, not just once.

Illinois: on April 11, a State Appellate Court ruled that a group of independent candidates may submit a single petition for all of them, if they are all running for the same at-large office. McNamara v Oak Lawn Electoral Board, 827 NE 2d 996. Although the law says independents each need their own petition, the court said the law is directory, not mandatory.

New Jersey: on May 5, a mid-level state court ruled that primary ballots must give each candidate an equal chance to win a lottery for the best spot on the ballot. Schundler v Donovan, 872 A 2d 1092. The Court said the state must use a method that "requires all candidates to begin from the same position, relative to the customary drawing."

Ohio: the 6^th circuit will hear two ballot access cases in September. On September 14 it hears the Libertarian Party case against the petition deadline for new parties, and on September 23 it hears the case against the March 1 deadline for non-presidential independent candidates.

Virginia: a U.S. District Court will hear the Republican Party’s case, on whether the party may exclude voters who voted in the Democratic primary in the recent past, on September 9.

The 2006 petitioning chart is omitted in this issue, but will reappear in the September issue. Since the July 1 B.A.N., the only state petitions that have gained as many as 500 signatures are the Green Party petitions in Indiana, Nebraska and Utah.

Comparing petitioning during the first six months of 2001 with petitioning during the first six months of 2005, one finds that the only parties that are doing more petitioning this year than they were four years ago are the Green and Constitution Parties. The Libertarian Party collected approximately 87,000 valid signatures during the first half of 2001, but has only collected about 30,000 valid signatures during the first half of 2005.

On May 5, 2005, the United Kingdom held elections for House of Commons. Each of the 641 districts had at least three candidates on the ballot. The average district had 5.5 candidates on the ballot. No district had more than ten candidates, except Sedgfield. Sedgfield is Tony Blair’s constituency, and fifteen candidates ran in that race. Apparently, the attraction of running against the incumbent prime minister attracted more candidates than is normal. Candidates for House of Commons need not live in the district they are running in.

The popular vote was Labour 35.6%, Conservative 32.7%, Liberal Democratic 22.3%, others 4.4%.

In the United States, in November 2004, 8% of the U.S. House races had only one candidate on the ballot, and one U.S. Senate race had only one candidate on the ballot. For U.S. House, the popular vote nationwide was Republican 49.96%, Democratic 47.30%, other 2.74%.

In Britain, candidates for House of Commons need ten signatures and a filing fee of 500 pounds, which is returned if the candidate polls 5% or more. The filing deadline is eleven days before the election.

Judge John Roberts, the likely new member of the U.S. Supreme Court, has only been a judge since mid-2003. He has been on the U.S. Court of Appeals, D.C. circuit, where he has never had a case involving minor party or independent candidates. The D.C. Circuit never hears ballot access cases, although it does hear cases involving presidential debates.

Justice Sandra Day O’Connor, who is leaving, is one of the justices who was unfriendly toward minor party and independent candidates at the beginning of her years as a justice, but who changed her views as time passed. She voted against ballot access for John B. Anderson in 1983 in Anderson v Celebrezze. She voted against lenient ballot access in 1986 in Munro v Socialist Workers Party.

She voted against requiring states to permit write-in votes in 1992 in Burdick v Takushi. She voted against requiring states to permit fusion in 1997 in Timmons v Twin Cities Area New Party. She voted against requiring minor party and independent candidates to be included in public TV-sponsored debates in 1998 in Arkansas Educational TV v Forbes. In 1999 she dissented from the majority opinion in Buckley v American Constitutional Law Foundation, on the issue of whether states could require initiative circulators to be registered voters. The Court invalidated the requirement, but O’Connor would have sustained it.

But, in 2000, she voted in support of political party freedom of association in California Democratic Party v Jones, in a case brought by two minor parties in conjunction with the two major parties. Most significantly, as reported in the June 1, 2005 B.A.N., she wrote in Clingman v Beaver that courts must apply heightened scrutiny when minor parties and independent candidates challenge restrictive ballot access laws. "Heightened scrutiny" means a court requires a state to prove that there is a neutral necessity for the restriction. If the state can’t prove this, the judge will invalidate the law.

It is not surprising that O’Connor changed her position over the years, from disinterest in minor party problems, to sympathetic support. Other Supreme Court justices who made similar shifts in position include former Justices Warren Burger, Harry Blackmun, and Potter Stewart. By contrast, no justice ever went from being friendly to minor parties and independent candidates, to hostile.

As judges gain more experience and more self-confidence in their own knowledge of the subject, they learn that there is no state interest in restrictive ballot access laws. Great Britain enjoys a stable two-party system yet it has lenient and non-discriminatory ballot access laws. The United States had no restrictive ballot access laws during its first century of existence, and relatively lenient ballot access laws before 1931.

Ever since 1974, the Federal Election Commission has been required to decide which minor party national committees qualify as bona fide "national committees." This is because federal campaign finance law lets political party national committees receive bigger donations than other campaign committees.

To carry out its mission, the FEC has issued a series of rulings on a case-by-case basis, approving the Libertarian, Socialist, Natural Law, Constitution, Reform and Green Parties as "national committees." The FEC standards have tended to toughen over the years, but they were lenient in the 1970’s and early 1980’s. In those early rulings, one can abstract some general principles: that a bona fide national political party is one that placed its presidential candidate on the ballot under the party label in at least two states, ran candidates for Congress under the party label in at least two states, had a set of national party officers and held national nominating meetings.

When one applies these standards back in time, to the beginning of federal elections under the Constitution, one can determine which national political parties have had bona fide existence. The chart below shows the number of such parties in existence during the past.

The chart shows that there have never been more than eleven such political parties in U.S. history. The significance of this is that it rebuts the idea that lenient ballot access laws cause a multiplication of political parties. Ballot access laws were non-existent before 1889, and were lenient in almost all states during the period 1890-1931, yet there were fewer political parties in the U.S. back then.

The average number of political parties between 1889 and 1928 was 6.7, and since then the average has been 7.2. The September 1 B.A.N. will include a list of the political parties that have met the FEC standards, going back to 1789, and make further observations about what the list shows.

The Party: The Socialist Workers Party 1960-1988, by Barry Sheppard, Volume One, 354 pages, paperback, 2005. Haymarket Books, 4015 N. Rockwell, Chicago Il 60618, sells it for $16.00. 773-583-7884. The book was published in Australia.

Volume One covers the period 1960-1973. Volume Two is not yet published. The book is a political memoir of Barry Sheppard, who was a student at MIT in 1958, where he became friends with Peter Camejo, also a student at MIT. They joined the Socialist Workers Party at the same meeting in 1959. Sheppard became the party’s acting National Secretary in 1971, and Camejo became the party’s presidential candidate in 1976. Sheppard represented the party to Trotskyist groups around the world, and lived in Paris for several years doing political work.

Anyone who is interested in political activism, or the history of the 1960’s and early 1970’s, will enjoy this book. Sheppard writes very well, and I found it hard to put the book down until I was finished. The Socialist Workers Party was a small party, but it was very effective in organizing mass protests against U.S. policy in Vietnam. It also had significant interactions with Malcolm X, who spoke at SWP meetings. The book also deals with President Kennedy’s assassination, and Fidel Castro’s rise to power.

The Socialist Workers Party has been active in fighting restrictive ballot access laws ever since 1969. It formed CoDEL, the Committee for Democratic Election laws, in 1970, but CoDEL only lasted seven years. The U.S. Supreme Court heard five of the party’s election law cases (in 1971, 1974, 1979, 1982 and 1986). No other minor party has had this many cases heard in the Supreme Court. Unfortunately, Volume One doesn’t cover this struggle.

On July 5, the OSCE (Office for Security and Co-operation in Europe, the formal name for the Helsinki Accords) Parliamentary Assembly voted overwhelmingly to criticize the U.S. for refusing to let District of Columbia voters have voting representation in Congress. The Assembly has 260 members, all of whom are legislators. Only two members from outside the U.S. voted against the resolution, one from Canada and one from Denmark.

Former president Jimmy Carter and former Secretary of State James Baker have held two hearings on election problems in the United States. However, the Commission is only interested in hearing about voter registration, voting technology, and election administration. Efforts to let people testify about ballot access and presidential debates have been rebuffed.

-	Demo.	Rep.	Green	Lib’t.	Nat. Law	Constitutn	Reform	other
Alabama	3,124	7,155	- -	- -	- -	- -	- -	- -
Arizona	20,654	15,010	- -	2,019	- -	- -	- -	- -
Idaho	13,397	14,542	- -	987	233	656	34	- -
Iowa	54,145	49,047	- -	- -	- -	- -	- -	- -
Kentucky	132,904	128,312	- -	- -	- -	- -	- -	- -
Maine	13,603	5,015	4,558	- -	- -	- -	- -	- -
Minn.	98,044	74,371	10,918	- -	- -	- -	- -	8,454
No. Caro.	138,194	123,719	- -	- -	- -	- -	- -	- -
Ohio.	191,257	191,257	- -	- -	- -	- -	- -	- -
Rhode I.	7,744	4,846	- -	- -	- -	- -	- -	- -
Utah	46,398	82,008	2,624	2,540	- -	1,786	- -	17,200
Virginia	30,997	18,956	- -	- -	- -	- -	- -	- -
TOTAL	750,461	714,238	18,100	5,546	233	2,442	34	25,654

The twelve states named above give state income-tax payers a chance to direct a small contribution to the political party of the taxpayer’s choice. The chart above lists the amounts received by each party. Ohio does not let taxpayers decide which party to help, and only lets taxpayers help parties that polled 20% of the voter in the last election. All the other states include all qualified parties. Parties in the "other column" are Independence in Minnesota, and Personal Choice in Utah. See page six for more information about the Utah data.

Pennsylvania held a special election on July 19 to fill a vacancy for State Representative, district 131. The vote was: Republican 50.80%; Democratic 42.02%; independent 5.34%; Green 1.85%. In November 2004 in the same district, the Democrats had not run anyone. The vote in 2004 had been Republican 90.75%; Green 5.20%; independent 4.05%. The district comprises part of Allentown.

The chart on page three shows the amount of money donated so far this year to each political party on state income tax forms, in the twelve states that permit this. One surprise from the data is the 9% support among Utah taxpayers for the Personal Choice Party. The only minor party that did better was the Maine Green Party, which always does well.

The Personal Choice Party exists only in Utah, and qualified for the ballot for the first time last year. The party refuses the money. The party founder, and its only officer, is Dr. Ken Larsen of Salt Lake City. He says since the party has no treasurer, no bank account, no conventions or other ways to make decisions, the party is unable to accept the money donated to it. Furthermore, the party rules specify that the rules themselves can never be altered, so this situation cannot be changed. Presumably the $17,000 donated to the party will revert to the state government. In 2004, the party only received .10% for president, but it polled 4.7% for Auditor, above the 2% test, so it is still ballot-qualified.

Joe Seehusen, Libertarian Party Executive Director, resigned on July 25, even though the party had renewed his contract recently. He oversaw the release of a position paper on how the United States military might withdraw from Iraq. The paper pleased many but displeased others; it is a contentious issue.

Admiral James Stockdale died on July 5. He had been Ross Perot’s running mate in 1992, and the only person who has ever been included in vice-presidential debates with Democratic and Republican nominees. His funeral was held on July 16 on the U.S.S. Reagan, and California state government flags flew at half-mast that day.

According to Politics1.com, Missouri’s former Democratic Secretary of State, Judith Moriarty, has said she plans to seek the Libertarian Party nomination for Governor of Missouri in 2008. She was Secretary of State between 1992 and 1994.

Al Sharpton, one of the nine candidates for last year’s Democratic presidential nomination who was invited into party-sponsored debates, has endorsed a Green Party nominee. On July 3, Sharpton endorsed Elaine Brown, who is the Green Party nominee for Mayor of Brunswick, Georgia, this coming November. The Brunswick election is officially non-partisan.

The Green Party National Committee met in Tulsa, Oklahoma, July 23-24. The "Greens for Democracy" proposals were defeated by approximately two to one. They had called for: (1) changing the formula for allocating national convention delegates; (2) binding national convention delegates to always vote according to state wishes; (3) a policy of never endorsing major party candidates. David Cobb and Peter Camejo both attended and said they have no interest in seeking the party’s 2008 presidential convention. Consensus at the meeting was that the party will choose a female presidential candidate in 2008. Camejo said he is leaning in favor of running for Governor of California in 2006.

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