LANDMARK PENNSYLVANIA BALLOT ACCESS LAWSUIT FILED

WILL TRY TO BUILD ON 2003 MARYLAND GREEN PARTY PRECEDENT

On January 10, the Green and Constitution Parties sued Pennsylvania over its ballot access laws for qualified minor parties. Rogers v Cortes, m.d., 06-0066. The case went to Judge John E. Jones, a Bush, Jr. appointee.

The case challenges Pennsylvania’s law that qualified minor parties must submit tens of thousands of signatures to place their nominees on the November ballot. In 2006, 66,827 signatures are needed for statewide nominees, and additional thousands for their district nominees.

Pennsylvania and New Mexico are the only states in which qualified parties must submit petitions for each of their nominees. Maryland had such a requirement, but it was overturned in 2003, Maryland Green Party v Elections Bd., 832 A 2d 214.

Pennsylvania defines "qualified party" to be a group that polled 2% of the highest vote-getter’s vote total in the last statewide election. Pennsylvania has three qualified minor parties: Constitution (which got 220,056 votes for U.S. Senate in 2004), Libertarian (which got 79,263 for U.S. Senate in 2004), and Green (which got 70,624 for Attorney General in 2004). In each case, these three parties surpassed the requirement of 66,827 votes.

The lawsuit argues that since the parties have already shown a modicum of voter support, under the state’s own definition of "party", therefore it is not logical to force the nominees of these parties to submit petitions. This is the logic that won the Maryland case in 2003.

Also, the case argues that it is unconstitutional for a state to require a party to get the approval of outsiders, when it nominates candidates. This argument is based on the U.S. Supreme Court decision of 2000, California Democratic Party v Jones.

The California decision said, "In no area is the party’s right to exclude more important than in the process of selecting its nominee." Yet Pennsylvania prevents its qualified minor parties from placing nominees on the November ballot, unless they submit "nomination papers". Under Pennsylvania law, the 66,827 voters on the street are technically "nominating" the nominees who, in fact, were nominated in their own party’s conventions.

None of the three qualified minor parties have nearly enough registered members to complete the nominee-petitions from the ranks of their own members. Furthermore, both federal and court precedents from Pennsylvania say it would be unconstitutional for Pennsylvania to require a qualified party to have any specified number of registrants. These cases are from the 1980’s: Fraenzel v Secretary of Commonwealth, 478 A 2d 903 (p. 906), a Socialist Workers Party victory, and Consumer Party v Davis, 606 F Supp 1008.

The Pennsylvania law is also discriminatory, because the major parties don’t need to submit petitions in order to place their nominees on the ballot. The nominee-petition law only applies to parties that have registration below 15% of the state total.

It is true that Democrats and Republicans must submit 2,000 signatures in order to place themselves on their own party’s primary ballots for statewide office. But these primary petitions are not required of party nominees, just individuals who are seeking to be a party nominee. These petitions have a purpose, to keep primary ballots from being too crowded. Since the qualified minor parties nominate by convention, the same logic doesn’t apply to them; there is no primary ballot to be over-crowded.

The Libertarian Party didn’t join this lawsuit because party leaders were miffed that the attorney for the lawsuit only gave them a few hours to make a decision as to whether to join, but it is possible that party will join the lawsuit later. The first hearing in the case is February 2 in Harrisburg.

Pennsylvania’s peculiar requirement that qualified minor parties must submit nominee-petitions does not have historical roots. It was passed in 1986, in an amendment to a bill. The amendment was passed two days after it was written, and no public hearings were held on it. It was not well-thought out, but the public had no chance to point this out.

Recently, Congressional Quarterly published America Votes 26, Election Returns 2004, by Rhodes Cook. Page 9 of this 480-page reference book contains an unusually clear piece of evidence that illustrates how repressive Oklahoma ballot access laws for president are. Congressional Quarterly has kindly given permission to reprint page 9, and is available here as a .pdf or here as a .jpg or here as a .gif.

The chart shows the number of votes cast for president in November 2004 in each state, for President Bush, for Senator Kerry, and for all other presidential candidates. Note that the Oklahoma "other" entry is zero. Oklahoma in 2004 was the first state since 1972 in which no votes were cast for anyone other than the two major party presidential candidates. This can be verified by looking at other pages in the same book, which include all elections back to 1960.

This is expected be be a prominent exhibit in the pending Libertarian Party lawsuit against Oklahoma. That lawsuit is based on the Oklahoma Constitution, which mandates that elections be "free and equal".

Alaska: the Green Party has been suing the state since 2003, over the definition of "political party". While the first case was still pending, the 2004 session of the legislature made the definition even harder, so the party had to file a new lawsuit against the new law. Last month, the Division of Elections said it will reprint the Voter Registration form and omit the Green Party as a choice. This has given the party an opportunity to get a quick interim decision from the court. It has asked for an injunction to stop the re-printing of the form, and expects to get a response by mid-February. Green Party of Alaska v State, 3AN-05-10787.

Illinois: the first brief to the 7^th circuit was filed on January 27 in Lee v Board of Elections, 05-4355. This is the case against the 10% petition for independent candidates for the state legislature.

Louisiana: on January 23, a U.S. District Court invalidated a 2005 law that sets congressional elections in early October, with a November run-off in the few cases in which no one gets 50%. Love v Foster, 95-cv-788. As a result, this year’s legislature is likely to abandon the "top-two" system for congressional elections. Probably the state will switch to the system used in the other 49 states, in which political parties nominate candidates who then run in a November election. Or, the state could use Instant-Runoff Voting, if it still wants to hold only one round of voting.

Maryland: on January 12, the highest state court refused to hear the state’s appeal in the final stage of Maryland Green Party v Board of Elections. The only issue in the final stage is whether the attorney who brought the case, Mark Miller, should receive attorneys’ fees (he had won the case in 2003, in a decision that helped ballot access not only in Maryland but in other states). In 2005 a lower court had ruled that Miller should get attorneys’ fees. The January 12 decision was good news for Miller, who is one of the nation’s most talented and determined foes of restrictive ballot access laws.

Michigan: on January 10, the 6^th circuit ruled against Ralph Nader in his ballot access lawsuit, on procedural grounds. In 2004, one faction of the ballot-qualified Michigan Reform Party had nominated Nader. However, the other faction chose to nominate no one for president. The Secretary of State refused to decide which was the legitimate set of state party officers. The court said that Nader couldn’t pursue his lawsuit, since he had got on the ballot anyway, via an independent candidate petition. Nader v Land, 04-2428. Nader asked for a rehearing on January 24. His request points out that the Reform Party lost its place on the ballot, and its rights are at stake also.

North Carolina: a hearing will be held soon in the Libertarian Party’s ballot access case. It will either be the week of March 13, or the week of April 3. The state will try to persuade the judge to dismiss the case without the need for a trial.

Ohio: Ralph Nader’s ballot access case got a boost on January 20, when the 6^th circuit asked the state to respond to his petition for a rehearing. The original panel had ruled that his appeal is moot. The issue is a state law, requiring all circulators to be registered voters in the state. Blankenship v Blackwell, 04-4259. Nader has asked for a rehearing, and it seems the court is looking seriously at that request.

Ohio (2): Law Professor Mark Brown has generously agreed to appeal Lawrence v Blackwell to the U.S. Supreme Court. The 6^th circuit had upheld a March 1 petition deadline for independent candidates for Congress.

Puerto Rico: all the briefs have been filed in U.S. District Court in Civil Action Party v Gracia Morales, 05-2064. The issue is whether Puerto Rico’s petition-checking process violates due process. When a new party submits a petition, the State Elections Commission checks it. This body is composed of a representative of each of the already-qualified parties. The SEC can invalidate petitions with no witnesses allowed, and no need to explain its decisions.

South Dakota: on January 23, the U.S. Supreme Court refused to hear the state’s appeal in Nelson v Quiver, 05-464. The issue was the scope of the Voting Rights Act. The plaintiff, represented by the ACLU national voting rights office, had won in the 8^th circuit.

Texas: on January 24, the State Supreme Court heard two ballot access cases. At stake are whether two Republican candidates for Court of Criminal Appeals should appear on the March primary ballot. One candidate was disqualified because he was five signatures short (he needed 700), and one was disqualified because of a typographical error on his petition. A decision is expected very soon. In re Holcomb, 06-40, and In re Francis, 06-42.

Virginia: Miller v Brown has been appealed to the 4^th circuit. The issue is whether the Republican Party may enforce a bylaw, excluding voters from voting in the Republican primary if they had voted in recent Democratic primaries. The lower court had refused to rule on the grounds that the case was filed too soon, since the first election affected by the rule is in 2007.

Washington: the 9^th circuit will hear Republican Party v Logan on February 6. The issue is the validity of the state’s "top-two" primary system. The lower court had invalidated it last year.

No U.S. Senator on the Judiciary Committee asked Judge Sam Alito about his only election law decision, Council of Alternate Political Parties v Hooks (he seemed to say that minor parties are bad for society). The Senators’ failure was disappointing. COFOE had asked each member of the Committee to ask Alito about the decision (see Dec. 1, 2005 B.A.N.).

Senators tended to ask Alito about various Supreme Court opinions, but this tactic was foolish, because invariably Alito replied that he hadn’t read the briefs and couldn’t comment. The Senators should have asked Alito about his own decisions.

On January 23, the Supreme Court refused to hear Minnesota’s appeal in Dimick v Republican Party, 05-464. Last year the 8^th circuit had invalidated regulations making it illegal for candidates for judge to identify themselves with a political party, to attend party meetings, or to publicize any endorsement from a political party.

It is true that when the U.S. Supreme Court refuses to hear a case, it is expressing no opinion. It is also true that the Court refuses to hear the vast majority of cases brought to it.

Nevertheless, the refusal of the Court to hear the case is noteworthy. Minnesota had amicus briefs on its side from nine very prestigious groups. They include the American Judicature Society, the American Bar Association, the Conference of Chief Justices, many state governments, and many constitutional law scholars. These groups are worried that judicial elections with political party involvement will create unseemly election campaigns for judge, in the states in which the voters elect judges.

Some individuals feel there is a strong pragmatic reason to overlook the 1^st Amendment, relating to campaign speech. The New York Times criticizes President Bush for ignoring the 4^th Amendment, relative to warrentless wiretaps. But the Times advocates that the 1^st amendment be side-stepped, in the name of pragmatism concerning judicial elections and campaign funding. The Times cannot consistently argue against pragmatism as a reason to gut the 4^th amendment, if it says that pragmatism on campaign speech is enough reason to ignore the 1^st amendment.

On January 11, the Pennsylvania House State Government Committee held a hearing on ballot access for minor parties and independent candidates. Most members seemed to favor reform, although no bill exists yet. It is likely that ballot access reform will be inserted in a broader election bill. It will probably shrink the number of signatures to 2,000.

California: the legislature seems likely to pass AB 583, to implement public funding for state campaigns. The bill does not treat all candidates alike. Independent and minor party candidates would need twice as many $5 contributions (in order to qualify for public funding) as the nominees of parties that had polled 10% for Governor, or for that particular office, at the last election.

Connecticut: when the legislature convenes on February 8, it is likely that bills will be introduced to remove the unequal treatment of minor party and independent candidates from the state’s public financing law (see the January 1, 2006 B.A.N.).

Missouri: Senator Joan Bray introduced SB 726 last month. It would delete the flaw in the state’s 1993 ballot access reform. The flaw, the result of a drafting error, forces new parties to list presidential elector nominees on their petitions. Otherwise, the petitions need not name any candidates; the other nominees are chosen by party conventions after the petition has been completed.

Nebraska: LB 1102, sponsored by the Secretary of State, would remove the primary screen-out for independent presidential petitions.

New Hampshire: the House Election Law Committee hears HB 1385 on January 31 at 1 p.m. It would cut the vote test for a party to remain on the ballot from 4% to 2%, and lower the statewide candidate petition from 3,000 signatures to 2,000.

Washington: SB 6236 would move the primary from September to August. It also moves the petition deadline for minor party and independent candidates (for office other than president) from July to June. In response to complaints about this, the Secretary of State promised to ask the 2007 legislative session to make it possible for minor parties to nominate stand-in candidates, and let the actual nominees come forward after the deadline. The Secretary of State doesn’t want to do this in 2006 because he is eager for this bill to pass, and he doesn’t want it amended.

Former Harvard Law School student Dmitri Evseev, who is now a practicing attorney, has just published "A Second Look at Third Parties: Correcting the Supreme Court’s Understanding of Elections" in the Boston University Law Review. Anyone can read the 58-page article on-line.

Wisconsin Democratic Congressman David Obey will introduce a bill for public funding of congressional candidates on February 1. It is not known if the bill will discriminate against minor party and independent candidates. Probably it won’t, because there is an independent congressman now in office, Bernie Sanders.

California: on January 12, Los Angeles County ruled that the Green Party may elect party officers from districts of its own choosing. The party wants to combine certain State Senate districts and elect party representatives to the state governing body from those combined districts. The county agreed to permit such innovation.

Texas: on December 20, 2005, the Texas Secretary of State ruled that a party may remain on the ballot in two ways. Either it may poll 5% for any statewide race, or it may poll 2% for Governor. Both provisions are in the Election Code, but they are in different sections and the Secretary of State had earlier doubted that the 2% gubernatorial vote is an option.

The results of the Canadian Parliamentary election of January 23 are: Conservative 124 seats, Liberal 103, Bloc Quebecois 51, New Democratic 29, independent 1. Since no party won a majority, there is a good chance that the New Democratic Party will be part of the government. If so, it will try to negotiate progress toward proportional representation.

The 2006 statewide petitioning chart has been changed somewhat. The Natural Law and Reform Parties have been deleted, since neither is engaging in any effort to qualify in additional states. However, note that the Reform Party is still ballot-qualified in 5 states, and Natural Law is still ballot-qualified in 6 states. The Labor and Working Families Parties have been added, since they are nationally-organized parties each attempting at least one petition drive this year, with the possibility of others.

STATE	REQUIREMENTS		SIGNATURES COLLECTED					Deadline
	FULL PARTY	CAND	LIB'T	GREEN	CONSTI	WK FAM	LABOR
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	*3,900	0	0	0	June 14
Arkansas	10,000	10,000	1,000	3,800	0	0	0	May 1
Calif.	(reg) 77,389	165,573	already on	already on	already on	0	0	Aug. 11
Colorado	(reg) 1,000	#1,000	already on	already on	already on	0	0	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	0	0	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	0	0	July 18
Georgia	42,676	#42,676	already on	0	0	0	0	July 11
Hawaii	648	25	already on	already on	0	0	0	July 25
Idaho	11,968	5,984	already on	0	already on	0	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	*6,500	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	0	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	0	0	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	0	0	Aug. 1
Michigan	31,731	31,731	already on	already on	already on	0	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	0	0	April 7
Missouri	10,000	10,000	already on	0	0	0	0	July 31
Montana	5,000	#5,000	already on	1,000	*3,500	0	0	May 30
Nebraska	4,735	2,500	300	4,300	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	*1,700	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	already on	can't start	Aug. 22
No. Car.	69,734	law is void	in court	0	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	*250	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	*250	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	0	0	0	0	0	July 20
So. Caro.	10,000	10,000	already on	already on	already on	0	finished	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	0	0	0	0	0	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	1	0	`

3 states (Ky., La., N.C.) have no statewide race, so chart shows U.S. House.
*change since the Jan. 1 chart.
#partisan label is permitted (other than "indp.").
"Deadline" means procedure with latest deadline.
"Wk Fam" means "Working Families Party".

A surprising number of prominent independent candidates have announced. In Texas, which has never had an independent candidate for Governor on the ballot in the history of government-printed ballots in that state, two well-publicized candidates have announced as independents. They are Carole Strayhorn, currently the Texas Comptroller, and humorist, musician and author Kinky Friedman. They cannot petition until after the March primary, and the petitions are due in May. Friedman may sue to extend the petitioning deadline, since Texas irrationally requires independent candidates to submit petitions two weeks before minor party petitions are due.

Also in Texas, former Republican Congressman Steve Stockman is an independent candidate for U.S. House.

In Maine, independent state legislator Barbara Merrill will be an independent candidate for Governor. In Alaska, former Republican legislator Andrew Halcro will be an independent candidate for Governor. In Vermont, Congressman Bernie Sanders is an independent candidate for U.S. Senator.

In Oregon, State Senator Ben Westlund is leaning toward declaring as an independent for Governor; he will decide at the end of February. In Georgia, businessman John Dashler will try to get on the ballot as the first independent candidate for Governor in that state since mandatory petitions were first required in 1943.

In Connecticut, Democratic U.S. Senator Joseph Lieberman faces a challenge in the Democratic primary. Oddly, polls show that Lieberman is more popular among registered Republicans than among Democrats. Connecticut permits fusion. This has lead to speculation that Lieberman might conceivably win the nomination of both major parties, or that he might run as an independent to avoid facing a difficult Democratic primary. Connecticut fusion laws do not permit fusion between an independent and a party, so he can’t be both an independent candidate and the Republican nominee.

Jay Fisher, a Georgia Libertarian, will attempt to get on the ballot for U.S. House, 6^th district (Marietta). If he does so, he will be the first party nominee (other than a Democrat or Republican) to appear on a Georgia ballot for U.S. House since before 1943. In 1943 the legislature passed a law requiring a petition signed by 5% of the registered voters. Petitions to qualify candidates for U.S. House always fail because so many signers turn out to live outside the district. Fisher needs about 15,000 signatures. For more about him, see www.fisherforcongress.blogspot.com.

It is possible that the "Clean Sweep Party" will attempt to qualify for the Pennsylvania statewide ballot. The party eschews ideology, except that it is against corruption in state government.

State Senator Sheila Kiskaden, who was elected in 2004 as the nominee of the Independence Party, has changed her membership to the Democratic-Farmer-Labor Party. She will run for Lieutenant Governor this year as a Democrat.

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