FEDERAL COURT UPHOLDS 10% PETITION REQUIREMENT FOR INDEPENDENT CANDIDATES IN ILLINOIS

On October 13, U.S. District Court Judge Jeanne E. Scott, a Clinton appointee, upheld an Illinois law requiring independent candidates for the legislature to obtain petitions signed by 10% of the last vote cast for that office. Lee v Illinois Board of Elections, 04-3042. The plaintiff, David Lee, had desired to be on the ballot for State Senate in the 44^th district in 2004. Because Lee did not qualify, only one candidate, a Republican, appeared on the ballot in that race. Lee expects to appeal the decision.

The 10% Petition

The decision is 15 pages long, and says nothing whatsoever about any state interest in requiring so many signatures. The Illinois law is so strict, only one independent candidate for the state legislature has qualified since 1981. In 2004, Illinois held elections in 23 State Senate districts. None of the races had more than two candidates on the ballot, and over half of these races had only one candidate on the ballot.

Outside of Illinois, no other jurisdiction in the world requires petitions for parties or candidates in excess of 5% of the number of registered voters. Although California has a petition of 10% of the last gubernatorial vote to qualify a new party, that requirement is not mandatory, since there is an alternate 1% registration requirement for new parties.

Since 1965, every other court in the United States that has ever been judged a petition requirement for candidates or parties in excess of 5% of the number of registered voters, has always held the law unconstitutional. These cases include three from Arkansas:

1. American Party of Arkansas v Jernigan (1977), striking down 7% of the last gubernatorial vote for Governor.

2. Lendall v Bryant (1975), striking down 15% of the last gubernatorial vote for independent candidates.

3. Lendall v Jernigan (1977), striking down 10% of the last gubernatorial vote for independent candidates.

Also, there are three cases from North Carolina:

1. Greaves v North Carolina Board of Elections (1980), striking down 10% of the last gubernatorial vote for independents.

2. Obie v North Carolina Board of Elections (1991), striking down 10% of the registered voters for independent candidates for county office.

3. Soares v North Carolina Board of Elections (1981), striking down 15% of the registered voters for independent candidates for city office.

Finally, there is a case from Ohio, Socialist Labor Party v Rhodes (1970), which struck down 7% of the last gubernatorial vote for new parties; and there is a case from South Dakota, Libertarian Party v Kundert, in which the state conceded that it could not require 10% of the last gubernatorial vote for new parties.

Judge Scott did not mention any of these cases. She said the 10% requirement is constitutional because in 1971, the U.S. Supreme Court upheld Georgia’s petition requirements of 5% of the number of registered voters. She said that in 2004, the plaintiff needed 6,995 signatures, whereas 5% of the number of registered voters in his district was 7,244; therefore 10% of the last vote cast is really easier than 5% of the number of registered voters.

However, this analysis ignores mid-term years. In 2004, even though there was only one candidate on the ballot for State Senate in the 44^th district, that one candidate, a Republican, polled 83,250 votes.

Therefore, the next time the 44^th district will be up for an election, an independent candidate will need 8,326 signatures, which is 5.75% of the number of registered voters. Obviously, the percentage would be even worse if the 44^th district had had more than one candidate on the ballot. This is because many voters, when confronted with only one name on a ballot, refuse to vote for that one candidate, out of resentment that there is no choice. If there had been a Democrat on the ballot, clearly the number of votes cast would have been higher.

The evidence before Judge Scott showed that Illinois has only required a 10% petition for independent candidates for the legislature since 1979. In 1974, and again in 1977, the U.S. Supreme Court said that when courts evaluate ballot access restrictions, they must determine how many independent candidates had been able to qualify. These cases are Storer v Brown and Mandel v Bradley. Even though Judge Scott knew that only four independents had qualified for the legislature since the law was toughened in 1979, she upheld the law without mentioning this evidence.

Finally, Judge Scott didn’t mention any of the cases that say there is no state interest in requiring more signatures for an independent candidate than for a new or minor party (Illinois requires new or minor party candidates for the legislature to submit signatures of 5% of the last vote cast). There are three such cases:

1. An Alabama case, Patton v Camp, which said that independent candidates could not be required to get signatures equal to 1% of the number of registered voters in that district, when new or minor parties only needed 1% of the last gubernatorial vote within that district.

2. A Florida case, Danciu v Glisson, which said that independent candidates could not be required to get signatures of 5% of the number of registered voters, since new or minor parties needed 3%.

3. a North Carolina case, DeLaney v Bartlett, which said that independent candidates could not be forced to get 2% of the number of registered voters, when new parties need 2% of the last gubernatorial vote cast.

Judge Scott defended her decision by saying that if Lee couldn’t comply with the 10% petition requirement, he was always free to start a new party, which needs 5%. But this ignores the U.S. Supreme Court’s statement in Storer v Brown (1974): "The political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other." Therefore, states must provide constitutional procedures for both new parties and independent candidates.

The Supreme Court added, "More fundamentally, the candidate, who is by definition an independent and desires to remain one, must now consider himself a party man (in a state which forces potential independent candidates to form a new party to get on the ballot), surrendering his independent status. Must he necessarily choose the political party route if he wants to appear on the ballot in the general election? We think not."

Judge Scott said that an independent candidate in Illinois shouldn’t mind forming a new party, since in Illinois, such a new party wouldn’t need to hold a state convention or a primary. She said he could call his party the "David Lee Party". However, in 1976, independent presidential candidate Eugene McCarthy sued almost all the twelve states that didn’t have any procedures for independent presidential candidates to get on the ballot, and he won all those cases. He even won the cases in states like Florida and Missouri. At the time, Florida and Missouri had new party procedures similar to Illinois. A new party circulated a candidate petition, and was not required to hold a convention nor a primary.

Some of the McCarthy victories made it clear that the reason states must provide procedures for independent candidates, as well as for new parties, is that people have a right to run for office, even if they disdain being a party member. The Oklahoma Supreme Court said in McCarthy v Slater that the existing Oklahoma law (which was being held unconstitutional) "requires the non-party man to consider himself a party man for the purpose of becoming a candidate. The political party route cannot be made his sole route."

A 3-judge U.S. District Court in Michigan said in McCarthy v Austin, "An integral part of an independent candidate’s message is his freedom from partisan ties. Even the nominal admission of partisan affiliation required by the Michigan laws seriously compromises an independent candidate’s credibility. More importantly, it penalizes him for acting in concert with his ideology by denying him an opportunity extended to similarly situated candidates not opposed to partisan affiliation. In addition to denying independent candidates and their electors the opportunity to appear on the ballot, such a scheme impairs the ability of voters to effectively register their opposition to partisan policies or practices. The restriction of the rights of independents to equal political expression and association serves no legitimate governmental interest and cannot be sustained."

In the states with partisan registration, 24% of the voters are not members of any party (see the Dec. 1, 2004 B.A.N.). Many of these voters disapprove of the notion of political parties. It is disappointing that a federal judge feels that these people can be barred from running for office, unless they subordinate their principle of opposition to political parties.

The December Petition Deadline

Judge Scott also upheld the December (of the year before the election) deadline for an independent candidate to petition. She did so because in 1986, the 7^th circuit (which covers Illinois) upheld that same deadline, in Stevenson v State Board of Elections.

However, in that case, the 7^th circuit opinion itself was only two paragraphs long. The concurrence, however, is six pages long in the printed version, and takes great pains to point out that the Stevenson decision should not be used as precedent for a Lee-type case.

Judge Scott did not mention this aspect of the Stevenson case. In that case, Adlai Stevenson had not filed his lawsuit until after the primary, and he had participated in that primary. Lee, by contrast, filed his case on February 18, 2004, before the March 2004 Illinois primary; and he had not tried to participate in the primary. The concurrence in Stevenson says that a true independent who tries to get on the ballot in January of an election year might have a good challenge to the Illinois deadline. The last line of the concurrence also says, "Whether someone else has a better claim is a question the court wisely leaves for another day."

Finally, Judge Scott did not acknowledge that the U.S. Supreme Court summarily affirmed a decision of a 3-judge U.S. District Court from Arkansas in 1977, that an April (of the election year) petition deadline for an independent candidate for the legislature is unconstitutional. Unfortunately, the lower court decision in that case is not reported, so it makes it difficult to make use of this precedent.

Judge Scott didn’t acknowledge any of the other lower court precedents that have struck down independent candidate petition deadlines for office other than president. They are from Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Nevada, New Jersey, Ohio, and South Carolina. All of those unconstitutional deadlines were later than Illinois’ deadline.

On October 7, California Governor Arnold Schwarzenegger vetoed SB 1050, which would have legalized write-in votes when the voter forgets to "x" the box next to the name.

On October 13, a lower state court upheld a New Hampshire law that gives the best position on the ballot to the party that got the most votes in the last election. Akins v Secretary of State, 04-E-360, Merrimack Co. The plaintiffs, including the Democratic and Libertarian Parties, will appeal to the State Supreme Court.

The decision is unique. Normally, when courts uphold laws that don’t give all parties an equal chance to get the best spot on the ballot, it is because the court concludes that ballot position doesn’t matter.

This is the first decision that agrees that the party that gets the best spot on the ballot does get an advantage, and yet still upholds a discriminatory law. The judge said she is persuaded by the expert testimony that the best position does help gain more votes. But then she said that neither the U.S. Constitution, nor the New Hampshire Constitution, require that candidates and parties be treated equally. The New Hampshire Constitution says, "Every inhabitant of the state, having the proper qualifications, has an equal right to be elected into office."

Some of New Hampshire’s elections have been extremely close. In 1974, the official final vote tally showed the Republican beating the Democrat for U.S. Senate by two votes (however, the U.S. Senate refused to accept the results, and a new election was held).

The law says the party that got the most votes in the last election gets the best spot on the ballot. The law doesn’t specify any particular office. Therefore, New Hampshire adds up the votes cast for all partisan offices, to decide which party got the most votes. Republicans always run virtually a full slate for all partisan offices in New Hampshire, whereas Democrats run fewer nominees. Therefore, even though occasionally Democrats carry the state for President (as in 2004), or sometimes elect a Governor (as in 2000), Republicans have had the best spot continuously since 1964.

On October 7, U.S. District Court Judge Norman Moon, a Clinton appointee, ruled that the University of Virginia may sponsor a debate that includes only the Democratic and Republican nominees for Governor. Potts v University of Virginia Center for Politics, 3:05cv-50, w.d.

Independent candidate Russell H. Potts, the only other candidate on the ballot, filed the lawsuit. The University had said he would not be invited unless he showed 15% in polls. Potts had been polling between 4% and 6%, so he was excluded.

The decision is seven pages long, and depends on the only U.S. Supreme Court opinion ever issued on debates, Arkansas Educational TV v Forbes, 1998. The Virginia decision says that the U.S. Supreme Court had ruled that a government-sponsored candidate debate is not a public forum. However, the Virginia decision fails to acknowledge that the U.S. Supreme Court also said that government-sponsored candidate debates can not exclude anyone they wish.

The U.S. Supreme Court had instructed lower courts to examine whether the news media considers a candidate worthy of coverage, whether the candidate has received many campaign contributions, and whether he or she has a campaign headquarters. If Judge Moon had considered these factors, he would have concluded that Potts should be invited into the debate. The U.S. Supreme Court had not told the lower courts to use polling data. It is not reasonable to expect minor party or independent candidate to poll well before they have been in debates.

The Post Office didn’t ask for a rehearing in Initiative & Referendum Institute v U.S. Postal Service (decision of August 9), so circulators are now free to petition on post office sidewalks that are parallel to streets. Still undecided is whether the post office can ban such petitioning on sidewalks that run between parking lots and the building.

On October 12, the New York Supreme Court, App. Div., ruled that the Libertarian Party nominee for Brooklyn President should be on the ballot. In re Popkin, 2005-9202. On October 21, the Court of Appeals refused to hear the state’s appeal.

The decision means that, in the future, unqualified parties can use a single petition all over New York state, to place nominees for statewide as well as district office on the ballot.

New York is one of the eleven states that doesn’t have a procedure for an unqualified party to qualify itself. Instead, an unqualified party must circulate candidate petitions for each nominee. It has always been legal for a New York statewide petition to include one district nominee as well. But now, a statewide petition can include many district nominees, from different districts.

Of course, it continues to be the law that the district nominees must obtain the needed signatures from registered voters in that district.

On October 20, a North Carolina state court refused the Libertarian Party’s bid for an injunction to put its nominees on the ballot in the November 2005 municipal elections. Lib’t Party v Bd. of Elec., 05-13073, Wake Co. Next year the court will determine whether the ballot access law violates the State Constitution.

On October 12, a U.S. District Court dismissed a Republican Party lawsuit because it had been filed too early. Miller v Brown, 3:05-cv-266, e.d. The Virginia Republican Party lets its district committees exclude voters who voted in a Democratic primary in the last five years, but state law doesn’t recognize such a rule. The party sued to force the state to recognize its rule. The court said since the rule doesn’t go into effect until 2007, the case should be re-filed in 2007.

On October 18, U.S. District Court Judge Harold L. Murphy, a Carter appointee, enjoined Georgia from enforcing a new law that requires voters at the polls to show a government-issued photo I.D. Common Cause v Billups, 4:05-cv-201, Rome.

The order is 123 pages long. It depends primarily on the 24^th amendment to the U.S. Constitution. The 24^th amendment forbids a poll tax, or "any tax" as a condition of voting in federal elections. Georgia charges $20 for a state ID, which is good for five years. Outdated state ID forms are invalid at the polls (although out-of-date drivers licenses are valid for voting). Georgia says people who can’t afford the $20 can get one free. However, the 24^th amendment doesn’t just apply to indigents; it applies to everyone.

Georgia won’t issue a state ID card unless the applicant supplies a birth certificate. However, Georgia did not keep birth records until 1919, and some of the plaintiffs were born before 1919. Also some of the plaintiffs were born in certain other states, or nations, that cannot provide birth certificates.

Georgia argues that anyone without a government-issued ID is always free to vote absentee. However, in 1872, Congress said that the first Tuesday after the first Monday of November is "election day" for federal elections. Therefore, registered voters have a right to vote for Congress on "election day". States are not free to require voters to vote on an earlier day.

Georgia has appealed to the 11^th circuit, and if it loses again, it will appeal to the U.S. Supreme Court.

Bills in Congress to let Katrina hurricane refugees vote absentee are considered fairly likely to pass. They are S1867 by Russ Feingold of Wisconsin, and HR3734 by Artur Davis of Alabama. They would apply the same principle that is now used for U.S. citizens who live abroad.

As the Pennsylvania Ballot Access Coalition seeks legislators to introduce a ballot access reform bill, some newspapers are editorializing in favor of ballot access reform. Last month, daily newspapers in Scranton, Doylestown, Carlisle, and Hagerstown (Md., but near the Pennsylvania border) have run such editorials.

In November 2004, initiatives to impose a "top-two" election system in California and Washington were on the ballot. "Top-two" systems would almost always create November ballots in which only Democrats and Republicans would appear. The idea was defeated in California, but passed in Washington. However, in July 2005, a U.S. District Court ruled the Washington "top-two" law unconstitutional.

Former Oregon Secretary of State Phil Keisling has been working for a "top-two" system in his state. He has raised $100,000 to get his initiative on the November 2006 ballot. See his web site, oneballot.com.

On October 12, he revealed that he has redrafted his "top-two" initiative, so that now it would empower political parties to decide whether any particular candidate could have that party’s label next to the candidate’s name. This re-write is an attempt to avoid some of the legal problems that beset the Washington initiative. However, the re-write does not solve another legal problem concerning congressional elections (see the lead story in the Nov. 1, 2004 B.A.N. for an explanation of this problem).

The Federal Election Commission has printed Federal Elections 2004, a book that has official election returns for all federal office. To obtain one, call 800-424-9530 and ask for the Public Records Office. The book is accurate, and includes write-in totals.

Georgia: on October 24, Elaine Brown, Green Party candidate for Mayor of Brunswick, filed a lawsuit to regain her place on the ballot. She had been removed on October 14 by the county election board, on the grounds that they didn’t believe she had really lived in the city for a year. Brown v Glynn Co. Bd. of Elections, Superior Court, Brunswick.

New Jersey: on October 17, a State Appeals Court removed Albert McWilliams from the Plainfield Mayoral ballot, even though he is the Republican Party’s nominee and the incumbent Mayor. He had been a Democrat previously, but had lost this year’s Democratic primary. The Republican nominee then dropped out, and the Republican Party replaced her with Mayor McWilliams. He won a lawsuit to be on the November ballot in lower court on September 29, but the mid-level court reversed it, and upheld the state "sore loser" law. The State Supreme Court refused to intervene.

New York: on October 21, the State Supreme Court ruled that the Libertarian Party candidates for New York city should have Column "F", not Column "G", on the mechanical voting machines. The first five columns are reserved for the five qualified parties. The unqualified parties get the next columns, in the order in which they filed their petitions. The Board of Elections had put the Socialist Workers Party in Column "F", because the mayoral candidate of the Socialist Workers Party had filed earlier than the Libertarian Mayoral candidate. However, another Libertarian candidate for city office had filed even earlier than any SWP nominees. The court said the rule is that any nominee of a party, not just its Mayoral candidate, determines the order. Silk v Umane, 114323/05.

On October 2, the California Democratic Party Executive Board endorsed letting each city and county decide for itself whether to use Instant-Runoff Voting.

Chief Justice William Rehnquist died September 3. He had been on the Supreme Court since 1971. For 34 years, he almost never wavered from an attitude of hostility toward minor parties and independent candidates. Rehnquist and former Justice Byron White did more to injure members of minor parties, and independent voters, than anyone else in U.S. history.

Rehnquist was not well-informed about ballot access. In 2004 he wrote Centennial Crisis, the Disputed Election of 1876. His book reveals that he did not know that there were no government-printed ballots before 1888. The book says that in 1860, Abraham Lincoln was "not on the ballot in most southern states". Also it says that the Greenback Party was "on the ballot in twenty states" in 1876. Rehnquist should have known that there were no ballots to "be on" back then, because this aspect of history was discussed in a 1992 U.S. Supreme Court decision (Burson v Freeman) that Rehnquist signed.

Rehnquist also misunderstood the definition of "two-party system", even though it was properly set forth in Williams v Rhodes, the 1968 case that first ruled that restrictive ballot access laws violate the 1^st and 14^th amendments. Williams v Rhodes explained that the U.S. "two-party system" is distinct from the Democratic and Republican Parties themselves. All dictionaries and encyclopedias that define "two-party system" agree that it is a system in which two particular parties are much larger than all the other parties. No decision of the U.S. Supreme Court ever contradicted that definition, until Rehnquist wrote Timmons v Twin Cities Area New Party in 1997.

Rehnquist wrote, "States have a strong interest in the stability of their political systems. This interest does not permit a State to completely insulate the two-party system from minor parties’ or independent candidates’ competition and influence, nor is it a paternalistic license for States to protect political parties from the consequences of their own internal disagreements.

"That said, the States’ interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two-party system, see Burnham Declaration (American politics has been, for the most part, organized around two parties since the time of Andrew Jackson), and that temper the destabilizing effects of party-splintering and excessive factionalism. The Constitution permits the Minnesota legislature to decide that political stability is best served through a healthy two-party system."

This paragraph has made it very difficult to overcome severe ballot access restrictions in court, ever since it was issued. And the paragraph is outrageously misleading.

First, it seems to indicate that political scientist Walter Dean Burnham is authority for the paragraph’s conclusion. Actually, Burnham had put in an affidavit on the side of the New Party and against the state of Minnesota. Rehnquist took one sentence out of Burnham’s declaration and reversed Burnham’s intent, which was to support "fusion" (election laws that let two different parties jointly nominate the same candidate).

Second, Rehnquist ignored a consensus of political scientists that a "healthy" two-party system is one in which the two major parties are roughly of equal strength, at least in the long term. An "unhealthy" two-party system is one in which one of the major parties seems permanently stronger than the other one.

Vigorous minor parties help to keep two-party systems healthy, and laws that suppress them degrade the health of the two-party system. No political science study of party systems has ever endorsed severe ballot access laws. But in one paragraph, Rehnquist managed to obscure that, and make it appear as though political science endorses laws that repress all parties but the two major parties.

In 1976, Rehnquist voted to keep Eugene McCarthy off the ballot in Texas. In 1980 he voted to keep John Anderson off the ballot in Ohio. In both cases he was in the minority on the Court.

Off to a Bad Start in 1972

The first ballot access case that came before Rehnquist was Socialist Labor Party v Gilligan. Rehnquist wrote the majority opinion upholding the challenged law, which was Ohio’s loyalty oath for new parties. Ohio required all newly-qualifying parties to submit an oath, signed by three party officers and seven other members, stating that their party had no connection with any group that advocated, directly or indirectly, the violent overthrow of the government. Furthemore, this oath had to be filed three months before the petition was due. Also, the oath was discriminatory, because a party was exempt if it had appeared on the ballot in every election starting in 1900. This meant, of course, that the Democratic and Republican Parties need not bother with the oath, whereas all parties did need to file the oath, each year they petitioned, over and over again.

Rehnquist’s opinion upholding the oath says that since the Socialist Labor Party had signed this oath (under protest), the oath didn’t really hurt the party, and therefore the case should never have been heard. The vote was 6-3. The dissent, written by Justice William Douglas, said the oath was discriminatory, since the major parties were exempt.

Two years later, the U.S. Supreme Court majority invalidated an almost identical loyalty oath for new parties in Indiana. Communist Party of Indiana v Whitcomb. Memos between the justices, now in the Library of Congress files of Justice Marshall, reveal that Rehnquist vigorously tried to persuade his fellow justices that the Indiana loyalty oath was constitutional. However, five justices said the oath violates the First Amendment, which protects abstract speech advocating the violent overthrow of government in the absence of a clear and present danger.

The other four justices, including Rehnquist, then said that they agreed that the Indiana oath should be invalidated, but solely on the grounds that Indiana (like Ohio) exempted the Democratic and Republican Parties from complying with the oath.

Of course, in the Ohio case in 1972, the dissenters had made the same point. In the Indiana case, Rehnquist didn’t acknowledge his contrary stand in his earlier Ohio opinion.

Also in 1974, Rehnquist signed Justice Byron White’s hostile opinions in Storer v Brown and American Party of Texas v White. Storer upheld a California law saying no one could be an independent candidate if that person had been a member of a qualified party 17 months before the election. Another part of Storer said, "Standing alone, gathering 325,000 signatures in 24 days would not appear to be an impossible burden." At the time, no independent candidate in U.S. history, had ever complied with any state requirement that required more than 72,514 signatures.

Rehnquist also signed two other hostile White opinions, in 1986 and 1992. The 1992 opinion, Burdick v Takushi, upheld the ban on write-in voting in Hawaii, and said there is no constitutional right for a voter to vote for the candidate of his or her choice.

In 1983, Rehnquist wrote the dissent in Anderson v Celebrezze. The issue was whether petition deadlines for independent presidential candidates could be as early as March of the election year. The Blackmun files at the Library of Congress (recording what justices said in conference) show that Rehnquist said of John B. Anderson (independent presidential candidate in 1980, and a member of Congress at the time), "He jumped ship!" Rehnquist was referring to the fact that Anderson had started out the election season by running in Republican presidential primaries. Anderson had then concluded that it was impossible for him to win the Republican nomination, and he abandoned the race for the Republican nomination, and declared as an independent.

Of course, others who "jumped ship" were Theodore Roosevelt in 1912, and Robert La Follette in 1924, both of whom ran in Republican presidential primaries that year, and then ran in November as Progressives.

Although Rehnquist was always considered a warm person face-to-face, his comments at oral argument and in his writings could be caustic. At the argument in Arkansas Educational TV Commission v Forbes, he sarcastically referred to a hypothetical independent candidate as "Wacko Willie". The issue in the case was whether government-sponsored debates could exclude everyone except the Republican and Democratic nominees.

In 1999, a majority of the U.S. Supreme Court invalidated a Colorado law that required petition circulators for an initiative to be registered voters. Rehnquist, in dissent, said, "The idea that convicted drug felons who have lost the right to vote under state law nonetheless have a constitutional right to circulate initiative petitions scarcely passes the ‘laugh test’. Back in 1973, Rehnquist had written the majority decision in Richardson v Ramirez, upholding state laws that disenfranchise ex-felons.

When Rehnquist was Helpful

Twice, Rehnquist did try to help minor parties and independent candidates. In Buckley v Valeo, the 1976 decision on the federal campaign law of 1974, one issue was the constitutionality of public funding for parties. The only parties that could receive general election funding were those that had polled 5% in the previous presidential election. Also, it gave substantially more money to parties that had polled 25% in the last race, than other parties. Independent presidential candidate Eugene McCarthy challenged the law.

Rehnquist and Chief Justice Warren Burger were the only two justices who said that the Equal Protection Clause of the 14^th amendment prohibits the government from funding some political parties, and not others. They pointed out that if the federal law had been in effect in 1916, the Progressive Party would have received several times as much money as the Republican Party (since in 1912, the Republican Party had polled less than 25% of the vote, whereas the Progressive Party had polled more than 25% of the vote).

Rehnquist’s motivation was probably not so much to help minor parties, as to help sink public funding.

Also, at the oral argument in 1991 in Norman v Reed, Rehnquist was helpful to the attorneys for the minor party that had brought a ballot access case against Illinois. One of the laws said that a new party must run a full slate of candidates, whereas already-qualified parties did not face such a restriction. The minor party that had brought the case, the Harold Washington Party, had been eliminated from the Cook County ballot because it had only run candidates for County Commissioner from the Chicago part of Cook County, and not from the suburban part of the county.

The oral argument seemed to be going badly for the Harold Washington Party, until Rehnquist, in his booming voice, asked, "What’s the state interest in requiring a new party to run a full slate of candidates, when old parties need not do so?" The attorney for the state fumbled the question, and from that moment on, the oral argument went very well. The Harold Washington Party won the case unanimously. Unfortunately, the opinion skirted all the constitutional issues, and instead merely interpreted Illinois election laws in a manner favorable to minor parties. The Illinois "full slate" restriction remains on the books.

Rehnquist and Party Rights

Rehnquist generally opposed the idea that political parties have a right to control their own nominations process. In 1981, the Court ruled in Democratic Party of the U.S. v La Follette that parties have a right to refuse to seat delegates chosen in open primaries. Rehnquist signed the dissent.

Rehnquist also dissented in Tashjian v Republican Party of Connecticut in 1986. The Court ruled that if parties want to invite independents to vote in their primaries, states may not interfere. In May 2005, Rehnquist voted with the majority in Clingman v Beaver, which said that parties do not have a right to demand an open primary. Rehnquist voted in this case, even though he missed the oral argument.

STATE	REQUIREMENTS		SIGNATURES COLLECTED					Deadline
`	FULL PARTY	CAND	LIB'T	GREEN	CONSTI	NAT LAW	REFORM
Alabama	41,012	41,012	1,200	0	0	0	0	in court
Alaska	(reg) 9,258	#3,128	already on	in court	0	0	0	Aug. 22
Ariz.	26,835	est. #20,000	already on	*3,000	0	0	0	June 14
Arkansas	10,000	10,000	*1,000	*2,500	0	0	0	May 1
Calif.	(reg) 77,389	165,573	already on	already on	already on	already on	*34,561	Aug. 11
Colorado	(reg) 1,000	#1,000	already on	already on	already on	534	337	July 10
Connecticut	no procedure	#7,500	already on	0	already on	0	0	Aug. 11
Delaware	est. (reg) 280	est. 5,600	already on	already on	already on	257	211	July 15
D.C.	no procedure	est. #3,800	can't start	already on	can't start	can't start	can't start	Aug. 30
Florida	be organized	pay fee	already on	already on	already on	already on	already on	July 18
Georgia	42,676	#42,676	already on	0	0	0	0	July 11
Hawaii	648	25	already on	already on	0	already on	0	July 25
Idaho	11,968	5,984	already on	0	already on	already on	0	Aug. 31
Illinois	no procedure	#25,000	can't start	can't start	can't start	can't start	can't start	June 26
Indiana	no procedure	#29,553	already on	*5,500	0	0	0	June 30
Iowa	no procedure	#1,500	0	0	0	0	0	Aug. 18
Kansas	16,477	5,000	already on	0	0	0	already on	July 31
Kentucky	no procedure	#2,400	0	0	0	0	0	Aug. 8
La.	(reg) 1,000	pay fee	already on	already on	47	20	already on	Sep. 7
Maine	24,798	#4,000	0	already on	0	0	0	May 25
Maryland	10,000	est. 29,400	already on	already on	already on	0	0	Aug. 7
Mass.	est. (reg) 41,000	#10,000	23,900	9,509	56	44	1,168	Aug. 1
Michigan	31,731	31,731	already on	already on	already on	already on	0	July 20
Minnesota	141,420	#2,000	0	0	0	0	0	July 18
Mississippi	be organized	1,000	already on	already on	already on	already on	already on	April 7
Missouri	10,000	10,000	already on	0	0	0	0	July 31
Montana	5,000	#5,000	already on	*400	*1,000	0	0	May 30
Nebraska	4,735	2,500	300	*4,000	0	0	0	Aug. 29
Nevada	7,915	7,915	already on	0	already on	0	0	July 7
New Hamp.	20,299	#3,000	*250	0	0	0	0	Aug. 9
New Jersey	no procedure	#800	0	0	0	0	0	June 6
New Mex.	3,782	14,079	*finished	already on	already on	0	0	July 11
New York	no procedure	#15,000	can't start	can't start	can't start	can't start	can't start	Aug. 22
No. Car.	69,734	law is void	in court	8,900	0	0	0	June 30
No. Dakota	7,000	1,000	0	0	0	0	0	Sep. 8
Ohio	56,280	5,000	in court	0	0	0	0	May 1
Oklahoma	73,188	pay fee	in court	0	0	0	0	June 21
Oregon	18,381	18,356	already on	already on	already on	0	0	Aug. 29
Penn.	no procedure	#66,827	can't start	can't start	can't start	can't start	can't start	Aug. 1
Rhode Isl.	21,815	#1,000	can't start	can’t start	can't start	can't start	can't start	July 20
So. Caro.	10,000	10,000	already on	already on	already on	0	already on	July 15
So. Dakota	8,364	#3,346	already on	0	already on	0	0	June 6
Tennessee	41,314	25	0	0	0	0	0	April 6
Texas	45,253	45,253	already on	can't start	can't start	can't start	can't start	May 11
Utah	2,000	#1,000	already on	already on	already on	0	0	Mar. 17
Vermont	be organized	#1,000	already on	already on	0	0	0	Sep. 21
Virginia	no procedure	#10,000	can't start	can't start	can't start	can't start	can't start	June 13
Washington	no procedure	in court	can’t start	can't start	can't start	can't start	can't start	July 7
West Va.	no procedure	#8,724	0	0	0	0	0	May 8
Wisconsin	10,000	#2,000	already on	already on	already on	0	0	July 11
Wyoming	4,774	4,774	already on	0	0	0	0	Aug. 28
TOTAL STATES ON			27	17	16	6	6	`

3 states (Ky., La., N.C.) have no statewide race, so chart shows requirement for a party to run a full slate for U.S. House.
*change since the Sep. 1 chart.
#partisan label is permitted (other than "indp.").
"Deadline" means the procedure with the latest deadline.

On October 4, California held a blanket primary to fill a vacancy in the U.S. House, 48^th district. The Constitution Party’s candidate, Jim Gilchrist, polled 14.8%. This is the highest percentage in a U.S. House race for the nominee of a nationally-organized minor party, running against both a Democrat and a Republican, since a Green polled 16.8% in New Mexico in 1997.

Furthermore, Gilchrist has a chance to exceed his October showing. On December 6, California will hold a run-off (since no one got 50% in October) with the Democratic, Republican, Green, Libertarian nominees and Gilchrist. Gilchrist’s showing is due to his fame as founder of the Minutemen, opponents of illegal immigration. He has been endorsed by a sitting Republican member of Congress from Colorado, Tom Tancredo.

Gloria Mattera, Green Party candidate for President of Brooklyn, New York, appears to have qualified for campaign public funding of $200,000. She did this by raising $50,000 in small contributions. For more about her campaign, see www.electgloria.org.

1. The Socialist Party held a national convention in Newark, New Jersey, Oct. 21-23. Eighty delegates from 15 states attended.

2. The Shaun O’Hara faction of the national Reform Party will hold a national convention in Yuma, Arizona, Nov. 11-13. See reformpartyusa.org.

3. The Freedom Socialist Party will hold a national convention in Portland, Oregon, Jan. 13-16, 2006.

Also, on October 13-16, the New Hampshire Libertarian Party held a state convention and invited members of all minor parties to attend. The meeting was called The 3^rd Party National Conference, and was organized by Daniel Vovek. See 3pnc.org.

True Mission, Socialists and the Labor Party Question in the U.S., by Eric Thomas Chester. Published 2004 by Pluto Press. Paperback, 260 pages, $24.95.

True Mission is a well-researched, detailed history of the Socialist Party in the United States in two specific periods, 1924 and 1937-38. It also includes the history of the Socialist Labor Party in 1886. What these three periods have in common is that in each case, the socialist party made a "pragmatic" decision to support a non-Socialist candidate. In 1886, New York city socialists supported Henry George and the United Labor Party for Mayor, because they thought he could win and that he would be a better choice for labor than the Democratic or Republican nominees. Similarly, in 1924, the Socialist Party nominated Robert La Follette for president even though he wasn’t a socialist. In 1937, the Socialist Party withdrew its candidate for Mayor of New York so as not to injure the chances of Fiorello La Guardia, the Republican-American Labor Party candidate.

True Mission also relates the story of the Nader campaign in 2000, although in 2000, the Socialist Party had its own presidential nominee. Chester believes that it is always a mistake for socialists to support a non-socialist party or candidate. His book is interesting for anyone interested in the dilemma faced by all minor parties in an election system without proportional representation. The chapters on the events of 1937-1938 are particularly detailed, including an explanation how Leon Trotsky (then living in Mexico, but influencing his followers in the United States) changed his position three times on whether Trotskyists in the U.S. should support a labor party, and how they should relate to the Socialist Party.

On October 18, four New Jersey gubernatorial candidates debated each other on TV. The participants were the Democrat, Republican, Libertarian, and an independent candidate with the ballot label "Education Not Corruption". The League of Women Voters sponsored the debate.

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