JUDGE ALITO’s BALLOT ACCESS RECORD IS DISAPPOINTING

Judge Samuel A. Alito, the current nominee for the U.S. Supreme Court, has only written one ballot access decision during his fifteen years as a U.S. Court of Appeals Judge. In 1999 he wrote Council of Alternative Political Parties v Hooks, 179 F.3d 64. He upheld New Jersey’s petition deadline of early June for minor party and independent candidates (for office other than president). The deadline is set on the day New Jersey holds its primary. The outcome of the decision was disappointing. Even sadder, though (given that Alito is likely to be on the U.S. Supreme Court), is what the decision revealed about Alito’s beliefs about minor parties and independent candidates.

Alito seemed to believe, along with former Justices William Rehnquist and Byron White, that minor parties and independent candidates harm society. He wrote, "The State has a legitimate interest in maintaining a stable and efficient election process. See The Federalist, No. 10 (James Madison) (explaining that splintered parties and unrestrained factionalism may do significant damage to a state’s political structure)."

Anyone who remembers Federalist, No. 10, will suspect that Alito himself did not review Madison’s words before he wrote his decision. The essay is only eight pages long in most printed versions, so re-reading it isn’t much of a burden. Madison actually said the opposite of what Alito says. Madison agreed that factionalism is harmful. He wrote, "There are two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

"It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an ailment without which it instantly expires.

"But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

"The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter attach …thus ensues a division of the society into different interests and parties. The latent causes of faction are thus sown in the nature of man.

"A zeal for different opinions concerning religion, concerning government, and many other points, an attachment to different leaders ambitiously contending for pre-eminence and power…have divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

"The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.

Madison’s Cure

Madison, having concluded that factionalism cannot be stopped without destroying liberty, then concludes that the solution to excessive factionalism is to increase the number of parties, or factions. He said, "Greater security is afforded by a greater variety of parties, against the event of one party being able to outnumber and oppress the rest…The increased variety of parties comprised within the Union increases this security."

Madison was arguing in favor of replacing the Articles of Confederation with the newly drafted Constitution of the United States. Under the Articles, it was barely possible to say that the United States was one nation, as opposed to thirteen independent but cooperating nations. Madison was arguing that the Constitution should be ratified, because ratifying the Constitution would make us one large nation. He said making us one large nation would cure the evils of factionalism, because one large nation would inevitably have many parties (whereas a single state was likely to have only two parties). And Madison’s cure for the evils of factionalism was a nation of many political parties, not just two.

Whether one agrees with Madison or not, it is simply error to say that Federalist, No. 10, or that Madison himself, argue in favor of making it impossible for candidates to enter a race, unless they complete a petition five months before an election.

Stability and Early Deadlines

Anyone with knowledge of U.S. ballot access laws throughout history knows that early petition deadlines are not needed for stability. Throughout the 18^th and 19^th centuries, there were no early petition deadlines, yet the United States was a stable nation. There were no ballot access restrictions until 1889 (because there were no government-printed ballots until then). And the earliest ballot access laws never set deadlines earlier than two months before the election. The first law to set a deadline earlier than September was passed in Mississippi in 1902, and it moved the deadline for new parties to three months before the election (i.e., August).

If the United States had had such restrictions, the Republican Party’s birth would have been postponed or perhaps even sabotaged.

The Republican Party was formed on July 6, 1854, in reaction to the Kansas-Nebraska Act having been signed into law in May 1854. The new party went on to win more seats in the U.S. House than any other party in the elections of autumn 1854. If states had government-printed ballots back then, with petition deadlines in early June, this natural process by which the people formed the Republican Party would have been thwarted.

The same point is true for Theodore Roosevelt’s 1912 Progressive Party, which wasn’t formed until August 1912. It placed second in the presidential election, and elected nine members of Congress. Most of the party’s state nominating conventions were held in September.

In Great Britain, the deadline for a candidate to qualify for the ballot for House of Commons is only eleven days before the election, and obviously Britain is a stable nation.

Voter Education

Alito also said that the early June deadline is needed because the state has an interest in educating voters.

Voter education is a good idea. However, there was no evidence in the lawsuit that educating the voters about all the candidates requires that candidates file at least five months before the election. In fact, the state had not even mentioned "voter education" in its briefs. Alito and the other judges on the panel conceived of this state interest, even though the state itself had not claimed any such interest.

New Jersey prints up a sample ballot and mails it to all voters, between two and three weeks before the general election. In gubernatorial election years (this lawsuit was filed in a gubernatorial election year), the state prints a statement from each gubernatorial candidate on the back of the sample ballot. Therefore, it seems that the state itself believes two to three weeks is sufficient to educate the voters about all the candidates.

The U.S. Supreme Court does not seem to believe that educating the voters about all the candidates on the ballot is an important state interest.

In 1998, the Court issued its opinion in Arkansas Educational TV Foundation v Forbes. By a vote of 6-3, the Court said that the government itself may sponsor a candidate debate and invite only the Democratic and Republican nominees, excluding anyone else who might be on the ballot.

Obviously, if the Supreme Court majority thought that it is important that the voters be educated about all the candidates on the ballot, it would have ruled that such debates must include all ballot-listed candidates.

Although it is of course desirable that the voters be informed about all candidates on the ballot, what harm is done if most of the voters are ignorant about some of the lesser-supported candidates on the ballot? If someone gets on the ballot, but few voters know anything about him or her, that person will certainly poll very few votes. The February 2005 Iraqi election ballot contained 111 parties. It is probable that the typical Iraqi voter knew very little about most of these parties. What is important is that the typical Iraqi voter probably did know which one particular party matched that voter’s viewpoints and interests.

Equal Treatment

Alito also said that the early June petition deadline is needed, because if minor parties and independent candidates could qualify after the June primary was held, this would be unjust to the major parties and their nominees. He seemed to say that the Constitution requires that all candidates be treated equally.

It would be very desirable of the Supreme Court believed that all candidates must be treated equally, but clearly, the Supreme Court does not believe this. The Supreme Court ruled in 1976 that it is constitutional to give general election public funding to the presidential nominees of parties that polled at least 5% in the previous election, but to give no general election public funding whatsoever to any other presidential candidate (except that the candidate could get funding after the election was over if he or she got 5%). Buckley v Valeo.

The Supreme Court ruled in 1971 that it is constitutional to let Republicans and Democrats run for office with no petition whatsoever, yet everyone else who desires to run for office must submit a petition signed by 5% of the registered voters. Jenness v Fortson.

Some argue that Jenness really does support the idea that all candidates should be treated equally, because Republicans and Democrats must win a primary in order to appear on the general election ballot. This argument is flawed. In a typical election year, most members of Congress do not have any primary opponent. Furthermore, even when they do, the true reward for winning a major party primary is not that the winner gets a place on the November ballot. The true reward is that the winner gains the label "Republican" or "Democrat" next to his or her name. This label means that between 20% and 80% of the voters in that district are almost sure to vote for that person, barring a major scandal (the huge range between 20% and 80% depends on which major party is involved and what the partisan leanings of that district are, of course).

Furthermore, letting minor party and independent candidates enter the race after the primary does not violate equal treatment. The Republican and Democratic Parties control New Jersey state government. If they desire to nominate their candidates much later in the election year, to give themselves more flexibility to respond to mid-year political developments, they are free to move their primaries to September. September is the most common month for states to hold primaries (for office other than president). In 2002, sixteen states held primaries in September. The second most popular month, June, was used by only twelve states.

Sometimes the major parties need flexibility to choose their nominees late in the year. In 2002, the New Jersey Supreme Court let the Democratic Party substitute a new nominee for U.S. Senate, even though the old nominee had not resigned from the ticket until September 30.

In 1972, all states let the Democratic National Committee choose a new nominee for Vice-President in mid-August, after the original nominee chosen by the national convention in July resigned from the ticket. And in 2004, the Republican Party did not formally choose its national ticket until September 3, and all states accommodated this late date.

Selective Disregard for Precedent

Alito’s decision placed great stress on the 1997 U.S. Supreme Court decision that said states may make it illegal for two parties to jointly nominate the same candidate. Timmons v Twin Cities Area New Party. He paid less attention to Anderson v Celebrezze, the Supreme Court decision that said early deadlines for independent presidential candidates violate the First Amendment. He did discuss it, but he did not mention that part of the decision on page 805 (in Volume 460 of U.S. Reports). This page quotes historian Alexander Bickel for the idea that the party system works better when independent and new party candidates may qualify after the major party nominees are known.

Alito’s decision implies that Anderson v Celebrezze does not apply to non-presidential candidates. His decision does not mention most of the reported decisions that say that Anderson v Celebrezze does apply to office other than president. These are from Alabama, Arkansas, Kentucky, Maine, and Nevada. Ironically, Alito did mention a similar South Carolina decision, but only to quote the dissent (that case, Cromer v South Carolina, had been won 2-1, but Alito only paid attention to the dissenting judge, not the majority).

Other Alito Arguments

Finally, Alito made two arguments that are simply non-sensical. He said on the last page of his decision that the early June deadline prevents "sore loser" candidacies. However, as he himself then wrote, New Jersey already has a separate "sore loser" law. Therefore it is obvious that the early deadline is not needed for the purpose of preventing "sore losers" from running in the general election.

Near the end of his opinion, Alito wrote, "New Jersey’s filing deadline is designed to allow primary voters to identify and evaluate all candidates in advance of casting their votes at the primary election." This is untrue. The deadline for independent and minor party candidates that Alito upheld is on primary day. When such petitions are submitted, the New Jersey Department of Elections will not reveal to the public the names of the candidates who have submitted these petitions, until after they are verified. Therefore, the voters on primary day do not know which minor party and independent candidates will be on the November ballot.

On November 7, U.S. District Court Judge Anthony Alaimo, a Nixon appointee, ruled that write-in votes for Elaine Brown (candidate for Mayor of Brunswick, Georgia) must be counted. Brown v McGlynn Co. Bd. of Elections, sou. dist., 2:05-218. Brown is not an attorney, but she successfully represented herself.

The election was on November 8, so many voters did not realize they could cast a write-in vote for Brown. Nevertheless, she won 13% of the vote. She had been kept off the ballot because the County Board of Elections did not feel she had been domiciled in Brunswick for a full year. Although the election is non-partisan, Brown held herself out as the Green Party nominee. She is somewhat famous for having been a leader of the Black Panther Party in the late 1960’s and early 1970’s.

The federal court decision is only three pages long, and does not mention any precedents. This is the first time that a federal court has ruled favorably on a matter involving write-in votes since 1990, when federal courts struck down bans on write-in voting in Kansas and Indiana. All such progress in federal courts had stopped in 1992, when the U.S. Supreme Court ruled in Burdick v Takushi that the U.S. Constitution does not requires states to permit write-in votes.

On November 23, proponents of an election reform initiative in Massachusetts turned in 109,000 signatures, to meet a requirement of 65,825 signatures. The initiative would legalize fusion (the ability of two parties to jointly nominate the same candidate). Also, it would make it easier for a party to remain qualified.

Under existing Massachusetts law, a party must poll 3% for one of its statewide nominees, every two years. Massachusetts elects five statewide state officers in mid-term years. But in presidential election years, no statewide offices are on the ballot besides president, unless U.S. Senate is up.

It is fairly easy for a party to poll 3% when there are five races, but it is not at all easy for a party to poll 3% in a year like 2004, when nothing statewide is on the ballot except president. In 2004, the Green and Libertarian Parties couldn’t get 3% for president and were removed from the ballot. The Libertarian Party had been continuously qualified starting in 1998. It had survived in 2000 by polling over 3% for U.S. Senate, but there was no Senate race in 2004.

The initiative was put on the ballot by the Working Families Party, which has never been on the ballot in any state except New York and Connecticut. The Working Families Party plans to expand all over the nation, but it prefers not to qualify as a party in any state, until after that state has legalized fusion. Generally, in a typical race, the Working Families Party prefers to nominate the Democratic nominee.

On November 8, 84% of the voters of Takoma Park, Maryland, approved Instant-Runoff Voting for city elections. The question was advisory only. IRV was defeated by the voters of Alaska in August 2002. However, since then, every time any group of voters has been asked if they wish to use it, a majority has said "yes".

California: on November 23, the 9^th circuit ruled 2-1 that petitions must be printed in multiple languages. In the case of Orange County, where this case started, that would be Spanish, Vietnamese, Korean and Chinese. Padilla v Lever, 03-56259. The decision says, "In the First Amendment context, petition signatures are treated the same as votes."

Florida: on November 14, the U.S. Supreme Court refused to hear Johnson v Bush, 05-212, concerning voting rights for ex-felons. However, Senator J. Alex Villalobos, Majority Leader of the Florida Senate, seems amenable to easing the ban next year.

Georgia: on October 27, the 11^th circuit agreed with a lower court, that the state cannot require voters at the polls to show a state photo ID. Common Cause v Billups, 05-15784. Two of the three judges who made this decision were appointed by Republican presidents.

Illinois: on November 22, one of the nation’s leading election law firms agreed to take over the COFOE-sponsored case against the 10% petition requirement for independent candidates for the legislature. However, COFOE is still responsible for paying costs and fees in the case. It is vital that this case be won in the 7^th circuit, to preserve an otherwise unanimous set of precedents that petitions for minor party and independent candidates cannot exceed 5% of the electorate. Any donations to COFOE for this case will be returned, if the case is won in the 7^th circuit and the state pays attorneys’ fees.

Minnesota: on November 3, the state asked the U.S. Supreme Court to hear the case on whether candidates for judicial office can be barred from speaking at political party meetings. The lower court had invalidated the ban. Dimick v Republican Party of Minnesota, 05-566.

New York: on November 10, the Appellate Division of the State Supreme Court agreed with a lower court, that write-ins are permitted for all office, even library board elections. Kovacs v Simmons, 97661.

Ohio: on November 16, the 6^th circuit issued an opinion in Ralph Nader’s case against a law that requires circulators for an independent candidate to be registered voters in Ohio. The 6^th circuit refused to decide the issue, saying the case is moot. The idea that a constitutional election case is moot just because the election has passed is invalid, according to Supreme Court decisions going back to 1969. In this case, the 6^th circuit said the case is moot because the lower court itself had refused to decide the issue. However, it provided no precedents for this idea. On November 30, Nader asked for a rehearing. Blankenship v Blackwell, 04-4259.

Puerto Rico: on November 22, a voter asked the U.S. Supreme Court to decide whether the United States is obliged to let U.S. citizens residing in Puerto Rico vote in presidential elections. Igartua de la Rosa v United States, 05-650.

National: on November 23, a U.S. District Court Judge in Florida said that the Reform Party must pay $333,558 back to the federal government. The party received $2,522,690 in 2000 from the government to pay for its national convention, and some of it was misused.

New Mexico: before the legislature went home this year, it passed a bill (SB 678) making independent candidate petitions earlier than they had been. In the past, independent presidential petitions were due in September, and independent petitions for other office were in July. Now they are both in early June. The bill did not change the deadline for petitions for minor party nominees, which continues to be in July. The Secretary of State’s web page erroneously says that minor party nominee petitions are due in June.

Pennsylvania: State Senators Lisa Boscola, a Democrat, and Joe Conti, a Republican, have agreed to introduce a bill soon, lowering the number of signatures for statewide office. See www.paballotaccess.org.

Bill Bradbury, Oregon Secretary of State, has issued a tentative regulation regarding independent candidate petitions. This year, the legislature passed a bill saying no voter may both sign an independent candidate petition and vote in the primary. However, the bill did not say what is to be done when the voter signs a petition first, and then votes in the primary afterwards.

The Secretary of State’s regulation says that in those cases, the voter’s vote in the primary is valid, and the same voter’s signature on the independent petition is invalid.

This means that if an independent candidate circulates a petition, he or she cannot possibly know how many valid signatures have been collected. Even signatures that were valid when signed could be invalidated by the voter’s later action of voting in the primary. No other state has ever had such a policy. Texas, the only state that currently won’t let voters sign for both an independent candidate and vote in the primary, settles the problem by forbidding independent candidate petitions from circulating before the primary. West Virginia, which before 1999 also wouldn’t let voters carry out both acts, said that if the petition was signed before the primary it was valid, but that the voter was committing a crime by then voting in the primary afterwards.

The Secretary of State will hold a hearing at 9 a.m on December 21 to hear objections to his regulation.

Ballot Access News subscribers have been sent a copy of an article in the most recent issue of the Fordham Urban Law Journal. The article, by Richard Winger, talks about the sloppy work done by federal courts last year in the Ralph Nader ballot access cases. B.A.N. thanks the individual (who wishes to remain anonymous) who made a generous contribution to defray the costs of the printing and postage for this mailing.

Election Year	Median Deadline	Signatures Needed	Signatures as % of Votes Cast	Median of Each State’s Percentage Requirement
1892	October	38,601	.32%	.10%
1896	October	41,135	.30%	.10%
1900	October	44,441	.32%	.15%
1904	October	42,732	.32%	.11%
1908	October	47,436	.32%	.15%
1912	October	49,236	.33%	.18%
1916	October	88,298	.48%	.18%
1920	October	77,625	.29%	.12%
1924	October	97,747	.34%	.12%
1928	October	74,643	.20%	.10%
1932	September	156,276	.39%	.11%
1936	September	192,683	.42%	.14%
1940	September	251,991	.50%	.17%
1944	September	254,874	.53%	.17%
1948	September	251,068	.51%	.16%
1952	September	666,207	1.08%	.15%
1956	September	648,358	1.05%	.15%
1960	August	835,949	1.21%	.13%
1964	August	920,505	1.30%	.35%
1968	August	545,878	.75%	.39%
1972	August	686,968	.88%	.66%
1976	August	672,332	.82%	.53%
1980	August	594,904	.69%	.52%
1984	August	671,527	.72%	.53%
1988	August	609,048	.67%	.59%
1992	August	695,208	.67%	.56%
1996	August	688,673	.72%	.56%
2000	August	595,855	.57%	.44%
2004	August	634,727	.52%	.42%

This chart shows the nationwide petition requirements for a new party or independent presidential candidate to get on the ballot of all states. The period starts with 1892, because before 1892, there were no government-printed ballots in presidential election years.

The column "median deadline" tells when the petitions were due. Observe that before 1932, a majority of states had deadlines in October. It is much easier to get signatures when the deadline is that late, because people are more motivated to sign, and to become circulators themselves, when interest is greatest.

The column "signatures needed" is the sum of the requirements of all states. When a state had alternate means for a new party or an independent presidential candidate to get on the ballot, the easier method is used. "Easier" is sometimes ambiguous, but for this chart, it means the method used most often.

The column "signatures as % of votes cast" divides the "signatures needed" total by the number of votes cast for president that year, to make a more meaningful comparison, since obviously the U.S. electorate has grown over the years.

The column "Median of Each State’s % Requirement" is for the purpose of overcoming a distortion caused by looking only at the total number of signatures required in all states. Ohio between 1952 and 1964 required more signatures than all the other states combined. The advantage of computing the median petition requirement is to lessen the distortion caused by the extreme Ohio requirement

Conclusions: ballot access requirements were far easier in the period before 1932 than they have been since then. They got steadily worse after 1932, and were at their most severe during the 1960’s and early 1970’s. They have improved somewhat since then, but not very much, and are still far more stringent than they were 75 years ago.

All the parties that ran in the New Jersey gubernatorial race in both 2001 and 2005 increased their percentages, except for the Democratic Party. Also running in 2001 (but not 2005) were the Conservative Party, and two independent candidates. Also running in 2005 were four independents candidates.

Party	2001	2005
Democratic	56.43%	52.65%
Republican	41.68%	43.78%
Libertarian	.21%	.69%
Green	.28%	.49%
Socialist Workers	.05%	.15%
Socialist	.07%	.09%

All the parties that ran in the New York City Mayoral race in both 2001 and 2005 increased their percentages, except for the Democratic Party. Also running in 2001 (but not 2005) were the Working Families Party, the Liberal Party, the Marijuana Reform Party, and three independent candidates. Also running in 2005 were the Socialist Workers Party (which got .21%) and two independent candidates.

Party	2001	2005
Republican	46.31%	52.50%
Democratic	45.71%	38.67%
Independence	3.99%	6.04%
Conservative	.24%	1.21%
Green	.48%	.64%
Libertarian	.10%	.25%

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VIRGINIA STATE ELECTION

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MANY MINOR PARTIES WIN ELECTIONS

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