CALIFORNIA AND TEXAS SUPREME COURTS BOTH PROVIDE RELIEF FOR ERRORS ON PETITIONS

On January 24, the Texas Supreme Court ruled, in two decisions, that candidates who make errors on their petitions must be given an opportunity to correct these errors. And on February 16, the California Supreme Court ruled that errors on initiative petitions that do not pose a realistic threat to the election process should not keep an initiative off the ballot.

The Texas decisions were In re Francis, 06-40, and In re Holcomb, 06-42. The California case was Costa v Superior Court of Sacramento County, S136294. In each case, some justices dissented.

Texas

In the Texas cases, two Republicans were restored to the primary ballot. Both were running for Judge on the Court of Criminal Appeals, and one of the candidates was an incumbent. Judge Charles Holcomb needed 50 signatures from each of the 14 appellate districts in the state, but in one district, he was five signatures short.

Robert Francis submitted a petition in which some of the pages didn’t say which seat he was running for.

The Texas Supreme Court put both candidates on the ballot, saying, "We disagree, however, that invalid signatures cannot be cured…As with other statutes, the consequences of noncompliance is not necessarily punishment…It would be inconsistent with the purposes of the Code if some candidates but not others get an opportunity to cure defects…

"An opportunity to cure not only complies best with the purposes of the Election Code, but is also the fairest remedy, and the one most likely to cause the least harm…Punishing every minor error not only punishes some candidates too much, but also frustrates the intentions of many voters who willingly signed their petitions…

"The public interest is best served when public offices are decided by fair and vigorous elections, not technicalities leading to default. Beginning every election cycle with lawsuits and publicity about efforts to toss candidates off and on the ballot sends an unfortunate message that elections are more about civic entertainment than civic duty."

California

In the California case, the California Supreme Court said that an initiative involving redistricting did belong on the ballot, even though the proponents submitted one version of the initiative to the Attorney General (who writes the title and the ballot description), and circulated a slightly different version of the same initiative. The Court found that the differences in the two versions were very minor, and the mistake was inadvertent. It said, "An unreasonably literal or inflexible application of constitutional or statutory requirements that fails to take into account the purpose underlying the particular requirement at issue would be inconsistent with the fundamental nature of the people’s initiative power.

"Because the discrepancies between the version of the initiative measure submitted to the Attorney General and the version circulated for signature did not mislead the public or otherwise frustrate or undermine the purposes underlying any of the applicable constitutional or statutory provisions or threaten the integrity of the electoral process, we find there was substantial compliance."

In 1978, the California Supreme Court had ruled that substantial compliance is good enough for candidate petitions. It had put the incumbent Superintendent of Public Instruction, Wilson Riles, on the ballot, even though his petition lacked the 65 required valid signatures.

That case, Riles v Eu, no. S.F. 23806, only resulted in a one-paragraph unreported decision. The lower state courts used it as a precedent for a while. For instance, in 1982, a lower state court put a leading Democratic congressional candidate, Jim Bates, on the ballot even though his circulator admitted that he hadn’t actually collected the signatures (someone else had collected them but had not signed the space at the bottom of the petition, as is legally required). Aguierre v Eu, San Diego Superior Court, no. 483783. Bates, like Riles, then went on to be elected that year.

As time went on, courts forgot all about Riles v Eu. When Terry Baum, a California Green Party candidate for Congress in 2004, tried to cite Riles v Eu, the government opposition attorney charged there is no such case. That problem won’t occur with the new Costa precedent, since it is a full-fledged, reported decision.

Is Substantial Compliance Workable?

Some election law scholars deplore the decisions described above, because they feel that only a "strict compliance" standard is objectively fair to everyone. However, in truth, it is the "substantial compliance" that will bring equal treatment to all groups, parties, and candidates. This is because no elections official ever imposes "strict compliance" on the nominee of a major party, if the office in question is important enough.

In every state, every political party is required to certify the names of its nominees for presidential elector by a certain date. In most states, the parties must also certify the names of their presidential and vice-presidential nominees. Inevitably, when a major party is late to perform one of these tasks, the elections officials themselves overlook the late filing.

Examples are the failure of both the Democrats and Republicans to timely certify their presidential nominees in Indiana in 1988; the failure of the Democrats to timely certify Lyndon Johnson’s name in Iowa in 1964; and the failure of the Republicans to timely certify George W. Bush’s name in Florida in 2000. In the Indiana and Iowa examples, after elections officials ignored "strict compliance" and certified the late names anyway, someone sued to remove the candidates from the ballot. But the courts approved the lenient treatment. In Iowa, see Risher v Synhorst, Polk Co. 70105; in Indiana, Fulani v Hogsett, 917 F 2d. 1028 (7^th cir.).

There are probably many more examples, but since the press doesn’t normally monitor the filing of such arcane documents, it is probable that other instances were never made known to the public.

By contrast, when minor parties make the same mistake, elections officials often invoke "strict compliance". Examples are the failure of the Populist Party to meet the same deadline in Iowa in 1984, the Libertarian Party to meet the deadline in both Arizona and in 1996 and Missouri in 1988, and the Constitution Party in both Vermont and Wisconsin in 2004. In all cases, elections officials ruled the party’s presidential nominee off the ballot (although, in the case of the Libertarians in 1996, a state court put the nominee back on).

The behavior of the Massachusetts Supreme Judicial Court in 1998, 1999 and 2000, also shows the futility of sticking to a "strict" standard when a major party nominee is at risk. In 1998 that Court invalidated a referendum petition because some sheets had a hand-stamp giving the sponsor’s name and address, and the law said all sheets had to be "an exact copy" of the original sheet, which did not have such information. In 1999, the same Court invalidated a school voucher initiative because some of the petition sheets had doodles in the margins. The Court said, "Exact copy means exact copy." Walsh v Secretary of Commonwealth, 713 NE 2d 369, at 372.

But in 2000, the same Court put the Republican nominee for U.S. Senate on the ballot, even though some of his petition sheets were photocopied with the reverse side upside down. Robinson v State Ballot Law Commission, 731 N.E.2d 1090. This time, the Court said it is necessary to look at the purpose of the law, and no good purpose would be promoted by a strict construction rule.

Frequent Victimization

Minor party and independent candidates regularly fail to appear on ballots as a result of minor, technical paperwork problems. In 1972, the nominees of the American Independent and Peoples Party (Congressman John Schmitz and Dr. Benjamin Spock) were kept off the Indiana ballot because they were late to file a loyalty oath. Ralph Nader was kept off the 2004 Oregon ballot because the page numbers on his petitions weren’t consecutive, and because some of his circulators initialed some sheets instead of using full signatures.

David Bergland, Libertarian nominee in 1984, was kept off the South Dakota ballot because his petitions said, "If elected, we will qualify and serve in those offices" instead of "We are eligible for the offices for which we are candidates. If elected, we will qualify and serve in those offices."

The Ohio Libertarian Party was kept off the ballot in 2004 because its petitions said, "Whoever commits election falsification is guilty of a felony of the fifth degree" instead of "The penalty for election falsification is imprisonment for not more than six months or a fine of not more than $1,000 or both".

Eugene McCarthy was kept off the New York ballot in 1976 because his petition sheets didn’t segregate signers by congressional district as well as by county.

The Unity Party of New York lost its U.S. Senate nominee in 1982 because he submitted a photocopy of his notarized declaration of candidacy on the deadline, instead of the original. The Socialist Workers Party lost its nominee for Mayor of Cleveland in 1971 for the same reason.

The Citizens Party lost its 1984 nominee for U.S. House in Minnesota because his declaration of candidacy was late, even though his petition was on time. Many independent candidates in Alabama and Arkansas have been kept off the ballot because they didn’t file campaign finance documents at the same time they filed their petitions.

The Natural Law Party was kept off the Georgia ballot in 1996 because one of the party’s volunteer notaries who had notarized thousands of signatures had herself circulated a few sheets of the petition. The same problem kept the Constitution Party off the ballot in that state in 1996 as well.

State courts in some states, notably Ohio and New York, still insist on "strict construction". On October 24, 2005, New York’s highest state court ruled in McGuire v Gamache, 840 N.E.2d 107, that an independent candidate should be kept off the ballot because her circulator crossed off one line in the circulator’s statement. That one line said that the circulator is eligible to vote for the candidate.

In 2004, the law requiring such a circulator to live in the district had been declared unconstitutional. The circulator was aware of that, and didn’t live in the district, and didn’t wish to commit perjury by signing an untrue statement. Because elections officials had never updated the form to take account of the 2004 court ruling, the circulator himself altered the form. The Court still knocked the candidate off the ballot, saying that the candidate could have been on the ballot if she had arranged for the circulator to appear at the court hearing. The vote was 5-2. It is very difficult to believe that the Court would have come to the same conclusion if the candidate had been a major party nominee for a major office.

California and Texas are the two most populous states. In both states, the unworkable "strict construction" standard has been set aside. It would be desirable if state courts in other states would follow their lead, especially Ohio, New York and Pennsylvania.

For the second time, a lower Alaska state court has prevented elections officials from removing the Green Party from the ballot. Green Party of Alaska v State, 3AN-05-10787. The recent order is dated February 8. A similar order had been won on November 3, 2003. The validity of the definition of "political party" will be decided in a few months.

The Alaska courts seem to believe, wisely, that the vote test should include all the statewide races. Yet the legislature persistently writes the definition so that only one statewide office counts. The existing law says that in gubernatorial years, only the vote for Governor counts. So if a party fails to get 3% for Governor, but does get it for U.S. Senate or U.S. House, or both, it fails the vote test.

The existing law also applies a vote test in presidential years. In presidential years, only the vote for U.S. Senate counts. If there is no U.S. Senate seat up that year, then and only then does the vote for U.S. House count.

It seems obvious that if the vote for U.S. Senate or U.S. House counts in presidential years, there is no reason why it shouldn’t count in gubernatorial years as well.

Other states in which the vote test is for only a particular office (in any given election year) are Arizona, Arkansas, Indiana, Iowa, Kentucky, Maine, Maryland, New Hampshire in presidential years, New Mexico, New York, North Carolina, Ohio, Oklahoma, Rhode Island, South Dakota, Tennessee, Wyoming in presidential years, and West Virginia.

This is the first lawsuit, in any state, challenging a definition of "political party" on the grounds that the vote for any statewide office ought to count. In 1980, the New York Libertarian Party polled over 50,000 votes for president. New York law says a party is a group that polled 50,000 votes for Governor; no other office counts. The Libertarian Party filed a lawsuit, but sued the wrong defendant, so the case was dismissed and the party never returned to court.

On January 27, U.S. District Court Judge John Gleeson struck down the ballot access law on how candidates get on primary ballots, for delegate to the party’s judicial nominating conventions. Lopez Torres v N.Y. Bd. of Elections, 04-cv-1129 (e.d). These conventions are to nominate party candidates for Judge of the Supreme Court. New York elects Supreme Court judges on a partisan basis. The state is divided into twelve districts for that purpose, and each district elects its own Supreme Court Judges. In New York, the Supreme Court is not the highest state court; the highest state court is the Court of Appeals, and its members are appointed.

Judicial districts are comprised of between nine and twenty-four Assembly districts. The law requires 500 signatures per Assembly district. Therefore, slates of candidates for delegate need between 4,500 signatures, and 12,000 signatures. The evidence showed that no slates ever qualify, unless they are backed by the party organizations.

Major newspapers praised the decision. Although it is being appealed, few expect it to be reversed. Judge Gleeson said that until the legislature acts, party nominees for Supreme Court Judge will be chosen directly in primaries. The State Senate passed SB55A on February 13, which provides that candidates for Supreme Court Judge should be nominated directly in primaries. However, the bill has little chance in the Assembly, at least until the state’s appeal to the 2^nd circuit is exhausted. Democrats control the Assembly, and they like the old system.

On February 6, the 9^th circuit heard the state’s appeal, in the "top two" initiative case, Washington State Republican Party v Logan, 05-35780. The argument went well for the three political parties that challenged the initiative. Two of the three judges expressed skepticism toward the law, and the third judge seemed neutral.

On January 31, Bruce McPherson, California’s Secretary of State, issued a press release saying the Peace & Freedom Party is no longer a qualified party. However, on February 3, he reversed himself, and said the party is qualified after all.

The party was holding a mass protest rally on the steps of the State Capitol, when the February 3 ruling came down. If the state had not given in, the party would have filed a lawsuit, which almost surely would have won. The party has 59,193 registrants, far more than the one-fifteenth of 1% needed for a party to remain on the ballot, although less than the 77,389 needed for a new party.

The law defining "political party" is badly worded. McPherson made his initial decision before researching how the law has been interpreted in the past.

In 2002, Oregon made it illegal for initiative circulators to be paid on a per signature basis. On February 22, the 9^th circuit tentatively upheld the law. Prete v Bradbury, 04-35285.

Oregon regulations say, "Payment cannot be made on a per signature basis. Allowable practices include: paying an hourly wage or salary, establishing either express or implied minimum signature requirements for circulators, terminating circulators who do not meet the productivity requirements, adjusting salaries prospectively relative to a circulator’s productivity, and paying discretionary bonuses based on reliability, longevity and productivity."

The plaintiffs provided little evidence that the law injures them, but the state provided evidence that the ban is useful in combating fraud. The 9^th circuit said, "We do not hold that the law is facially constitutional. Rather, we hold that the district court did not clearly err in determining plaintiffs failed to establish that the law imposes a severe burden."

On February 23, a plan to win a Constitutional Amendment for direct popular election of the president was launched by National Popular Vote. The movement is headed former Congressman John B. Anderson of Illinois, former U.S. Senator Birch Bayh of Indiana, and former Congressman John Buchanan of Alabama.

The U.S. Constitution lets states choose their presidential electors any way they wish. National Popular Vote suggest that state legislatures pass laws that provide that the state will choose presidential electors who are pledged to vote for whichever presidential candidate receives the greatest number of popular votes, nationwide. Such a bill has already been introduced in Illinois, SB2724.

These laws would only go into effect when enough states to control a majority in the electoral college had passed such laws.

Ohio State Senator Charlie Wilson failed to gather the needed 50 signatures to get on the Democratic primary ballot for U.S. House, 6^th district. He is considered the front-runner, and has $400,000 in his campaign treasury. He submitted 96 signatures, but only 46 are valid; many signers don’t live in the district. He can still be a write-in candidate in the May 2 primary, or he could submit 2,240 signatures by May 1 to be an independent candidate.

California: on March 8, the State Supreme Court will hear the case over whether Prop. 60 is part of the Constitution. Californians for an Open Primary v Shelley, S126780.

Georgia: on February 16, the 11^th circuit ruled that the Privacy act stops Georgia from requiring Social Security numbers on voter registration forms. Schwier v Cox, 05-11428.

New Jersey: on February 9, the Appellate Division revived a lawsuit to require a paper trail for voting machines. The 2005 legislative session had mandated a paper trail, but made it conditional on whether the manufacturers of these machines can comply. The Court said the case is not moot, since no one knows for sure what the makers of these machines will do next, and sent it back to the lower court for more fact-finding. Gusciora v McGreevy, A-2842.

North Carolina: the Green Party is joining the Libertarian Party’s ballot access case, and will be represented by the ACLU.

Ohio: on February 8, a federal court said the dispute over the presidential recount of 2004 is moot. The issue had been whether the recount should have started as soon as the recount fees had been paid, or whether the state had a right to postpone the recount until the first count was certified. Rios v Blackwell, 3:04-7724, n.d. On February 17, plaintiffs asked for a rehearing, pointing out that the same procedures still exist.

Pennsylvania: on February 2, a U.S. District Court heard witnesses in the ballot access case filed by the Green and Constitution Parties, Rogers v Cortes, 06-66, m.d. Plaintiffs put on many witnesses, but the state only put on one witness. The judge then set a schedule for each side to file briefs on the legal issues. Plaintiffs have already filed theirs, but the state has obtained a delay until mid-March for its brief.

Virginia: a case is pending in state court over whether the Virginia Constitution’s free speech provision requires that shopping centers allow petitioning and leafleting on its property. Collins v Shoppers’ World, Circuit Ct. 05-10518, Albemarle Co.

Washington: Ruth Bennett, Libertarian nominee for Governor in 2004, is suing King Broadcasting Company for excluding her from primary season debates (she had a primary opponent), as well as general election debates, that year. The case is based on state law, not the U.S. Constitution. Bennett v Belo Corp., 05-2-27309, King Co. Superior Court.

The New Mexico Libertarian petition seems not to have enough signatures, but the state will let the party collect more; the deadline is April 4. The Working Families Party has 1,500 signatures in South Carolina and 2,000 in Oregon. The Constitution Party is almost finished in Montana. The Green Party is making headway in Arkansas, Indiana and Nebraska. So is the New Hampshire Libertarian Party. John Dashler, independent for Georgia governor, has 3,500. Ben Westlund, independent for Oregon Governor, has just started.

Arizona: HB 2492 moves the primary from September to August. It also sets a June 15 deadline for independent candidate petitions, which is a few days improvement over the existing law, in which the deadline ranges from June 9 to June 15, depending on that year’s calendar.

Maryland: SB 292 would provide for Instant-Runoff Voting in all partisan elections, and had a hearing on February 16. Testimony was overwhelmingly in favor.

Michigan: HB 5082 passed the House Election Committee on February 22. It eases the deadline for a qualified minor party to certify the name of its presidential candidate, from one day after the party’s national convention, to 60 days after.

New Mexico: HB453, which would have moved the deadline for minor party nominee petitions from mid-July to early June, failed to pass.

South Carolina: H4331 bans fusion. It passed the House on January 31, but seems to lack Senate support.

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. It moves the minor party and independent presidential deadline from early September to late July. It passed the Senate on February 1, and the House Rules Committee on February 20.

The chart on page five shows the last instance when an independent candidate appeared on a government-printed ballot in each state. Nine states have never had such a candidate on a government-printed ballot.

For purposes of the chart, "independent candidate" means a candidate who used the independent candidate procedures. Thus, some of the "independent candidates" on the chart were legally independents, but in reality the nominees of unqualified parties. This is true of North Dakota (where the listed candidate was really a Libertarian) and South Dakota (where the listed candidate was really the Communist nominee).

For the minority of states in which the ballot access procedures for new parties and independent candidates are merged into a single procedure, the chart assumes that an "independent gubernatorial candidate" is one who has chosen a ballot label that no other candidate for any other office is using (except that the independent gubernatorial candidate sometimes has a lieutenant-governor running-mate with the same label, of course), anywhere else in the state or nation. It is always not easy to differentiate minor party candidates from independent candidates in states with this legal structure, and this seemed the best method.

George Pennock, a supporter of the Prohibition Party who died more than fifty years ago, left a legacy to his party. It is a trust, which pays the national party approximately $8,000 per year. The two national factions of the party each seek to receive this income. A state court in Delaware County, Pennsylvania is handling a lawsuit to settle the matter. PNC Bank v Pletten, 114-1937. The judge has been trying to encourage a compromise settlement.

The Vermont Progressive Party had hoped to run one of its senior state legislators, David Zimmerman, for U.S. House this year. However, Congressman Bernie Sanders exerted his influence to persuade Zimmerman to drop out, and on February 15, Zimmerman did drop out. Democrats in Vermont are supporting Sanders as an independent for U.S. Senate, and Sanders has reciprocated by helping the Democratic nominee for U.S. House. Zimmerman will run for re-election to the legislature.

Rick Jore, the only Constitution Party state legislator ever, and who lost his battle for re-election in 2004 in a virtual tie, is running for a new term in the Montana 12^th State House district. Although it isn’t certain, it is likely that he will be the only opponent of the Democratic legislator who defeated him. Republicans don’t expect to run anyone.

Jay Fisher, a Georgia Libertarian, had announced that he would try to be the first party nominee on the Georgia ballot for U.S. House since 1943 (other than Democratic and Republican nominees). However, at the time he announced, he thought he needed approximately 15,000 signatures. Actually he needs 19,377. In addition, his employer, the state of Georgia, informed him that even though there is no written policy preventing state employees from running for Congress, in practice it is frowned on. So he dropped out.

Bill Paparian, who was a city councilmember and mayor of Pasadena, California, between 1987 and 1999, will be the Green Party candidate for Congress in the 29^th district. The incumbent Democrat, Adam Schiff, is running for re-election. In 2004 the vote was Democrat 133,670; Republican 62,871; Green 5,715; Libertarian 4,570.

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