THREE CIRCUITS INVALIDATE BALLOT ACCESS PETITIONS

NUMBER OF SIGNATURES INVALIDATED IN 2^nd, 6^th and 7^th CIRCUITS

Last month, three U.S. Courts of Appeals invalidated the number of signatures needed for a party or a candidate to get on a ballot. Only nine times in history has a U.S. Court of Appeals struck down a ballot access law because that law required too many signatures. Of those nine, three were in the last thirty days.

The three recent cases struck down the number of signatures needed for: (1) a candidate for Delegate to a Judicial Nominating convention to get on a New York primary ballot; (2) a new party to get on the Ohio ballot; (3) an independent candidate for legislature to get on the Illinois ballot.

The only other times when a U.S. Court of Appeals struck down the number of signatures to get on a baldlot were: (1) in 1977 the 7^th circuit struck down the 5% petition (of the last vote cast) for new party and independent candidates for Mayor of Chicago; (2) in 1980 the 8^th circuit struck down the North Dakota 15,000 signature requirement for a new party; (3) in 1985 the 11^th circuit virtually struck down the Georgia 2.5% petition (of the number of registered voters) for a new party or independent Presidential candidate; (4) in 1985 the 3^rd circuit struck down the Pennsylvania 2,000 signature requirement for a member of a small qualified party to get on a statewide primary ballot; (5) in 1986 the 7^th circuit struck down the Illinois 10% petition (of that party’s last general election vote) for Ward Committee; (6) in 1996 the 2^nd circuit struck down the New York 5% presidential primary signature requirement.

The U.S. Supreme Court itself has struck down, or virtually struck down, the number of signatures for a party or a candidate to get on the ballot four times in history: (1) Ohio 1968; (2) California 1974; (3,4) Illinois in 1979 and 1992.

"Virtually," as used above, means that the court did not strike down the law, but instead remanded the case to a lower court to examine the evidence more carefully. In each case, the state legislature took the hint and eased the law, without the need for any more court involvement.

This article concerns the activity of U.S. Courts of Appeal. Just for clarification, note that in Alabama (1990), Arkansas (1974, 1976, 1996 and 2006), Colorado (1994), Iowa (1992), North Carolina (1980, 1981, 1991, 2004), and South Dakota (1984, 2000), U.S. District Courts have struck down the number of signatures. Those cases did not reach a U.S. Court of Appeals, since the states did not appeal.

New York

On August 30, the 2^nd circuit struck down a state law, requiring candidates for Delegate to a party Judicial Nominating convention to collect 500 signatures, from party members, in only 37 days. This was a requirement for candidates to get on a primary ballot. Lopez Torres v New York State Bd. of Elections, 06-635.

Individual attorneys who want to run for Supreme Court Justice in New York state must seek party nominations at conventions. The delegates at these conventions are elected at party primaries. The court ruled that the petition requirements to run for Delegate are too severe. The basis for this decision was that virtually the only individuals able to get on the ballot to run for Delegate were those backed by the party machines.

New York elects State Supreme Court Justices from the state’s 12 judicial districts. The districts are far from equal in population. The least populous is composed of nine Assembly districts; the most populous one has 24 Assembly districts.

An aspiring judge would need to place delegates pledged to himself or herself in all Assembly districts in that district, to maximize chances of winning the nomination. Therefore, that would-be judge would need between 4,500 valid signatures, and 12,000 valid signatures, depending on which Judicial district is involved.

The court noted, "Over a four-year period, almost 90% of all delegate races in four judicial districts – including what is perhaps the State’s most competitive district – went uncontested, meaning that nearly nine out of ten delgates were ‘deemed elected’ without ever appearing on the ballot (when these races only have a single slate on the ballot, they are removed from the ballot)."

New York had 5,489,521 registered Democrats, and 3,143,233 registered Republicans, at the last tally. Since New York has 150 Assembly districts, this means that on the average, Democratic candidates for Supreme Court Justice faced a petition burden of 1.37% of the eligible signers, and Republicans had a 2.39% burden.

The state is expected to ask for U.S. Supreme Court review of this case.

Ohio

On September 6, the 6^th circuit ruled that Ohio’s new party petition procedure is unconstitutionally difficult. It requires a petition of 1% of the last vote cast, due four months before the primary. In presidential years, the primary is in March. This meant that in 2004, when the case was filed, 32,290 signatures were needed by November 2003. Libertarian Party of Ohio v Blackwell, 04-4215. The vote was 2-1. The state did not file a petition for rehearing en banc by the deadline for doing that (Sep. 20), but it did file a letter on that date, asking for two more weeks to file such a document.

Ohio had argued that the early petition deadline is necessary, because the state desires to provide all parties, even new parties, with their own primary. But the 6^th circuit noted that 43 states do not insist that new parties nominate by primary their first year on the ballot, and suggested that Ohio has no important state interest in giving a new party its own primary. Although the court did not mention it, there have been four instances in recent history when Ohio did not provide new parties with a primary (in 1968, 1970, 1976 and 1996).

The basis for the 6^th circuit opinion was the historical record. No parties had qualified in Ohio since 2000, nor had any qualified 1984-1994, nor in 1998. The dissenting judge wrote that a party had qualified in 1998, but he didn’t seem to understand that the new party petition procedure had not been used in 1998. Instead, in 1998 a U.S. District Court had ruled that a candidate who used the easier independent petition procedure, but who was really a Libertarian, should have "Libertarian" printed on the ballot next to his name. Therefore, the official election returns for 1998 show that one Libertarian was on the ballot, but the party as a whole wasn’t on the ballot. After the 1998 election, the 6^th circuit had reversed that "labels for independents" decision, called Schrader v Blackwell.

One of the consequences of the Ohio decision is that Tennessee’s law for new party ballot access is also probably unconstitutional. Tennessee requires a petition signed by 2.5% of the last gubernatorial vote, also due four months before the primary (the August primary, not the February presidential primary). Tennessee and Ohio are both in the 6^th circuit, so the Ohio decision is binding on any U.S. District Court in Tennessee. No group has successfully petitioned as a party in Tennessee since 1968, when George Wallace’s American Party did so. Therefore, both the historical record, and the number of signatures, in Tennessee (compared to Ohio), make an overwhelming case against the Tennessee party petition law.

Illinois

On September 18, the 7^th circuit struck down Illinois’ ballot access law for independent candidates for the state legislature. Lee v Keith, 05-4355. The law required a petition of 10% of the last vote, due in December of the year before the election.

As in the New York and Ohio cases, history was the basis for striking the law down. No independent candidate for Illinois legislature had qualified since 1980. Before 1979, the petition had been 5% of the last vote cast.

Illinois argued that an independent candidate is always free to use the "easier" route to the general election ballot, by forming a new party. The new party petition, for state legislature, is 5% of the last vote cast, due in June of an election year. But the 7^th circuit didn’t believe that there was any state interest in forcing true independents to create artificial parties, just to get on the ballot.

On September 11, a U.S. District Court issued an injunction, putting the Working Families Party on the South Carolina ballot. Working Families Party v S.C. Elec. Comm., 3:06-cv-2125. The issue was the deadline for a new party to hold organizing meetings. The state argues that new parties must hold meetings in February of an election year. The party argued that this law only relates to parties already on the ballot.

The deadline for submitting a petition to create a new party is in May, and the party met that deadline, and held its meetings afterwards. Judge Cameron Currie ruled from the bench. Her ruling has not yet been transcribed, but those who were there say she depended partly on the 6^th circuit Ohio opinion of September 6, 2006.

Also, she was influenced by the fact that in 1996, when the Natural Law Party was in the same dilemma, and sued in federal court that year, the state had conceded that the Natural Law Party was right. This year, the state claimed that it should not be bound by what happened in 1996.

On September 11, a lower Nebraska state court ruled that if a qualified party nominates no one at its primary, it is free to hold a convention afterwards and nominate someone that way. State ex rel Witek v Gale, no. ci06-3431, Lancaster dist. ct.

The Democratic Party had not nominated anyone for Auditor at its May primary, but afterwards, desired to nominate Kate Witek. She is the incumbent State Auditor, and she was elected in 2002 as a Republican. Since then, however, she changed her registration to "Democratic". She had not run for re-election this year.

The Democratic Party nominated Witek for Auditor, at a convention after the primary, and she accepted. State law is unclear as to whether a party can fill a vacancy by convention after the primary, when it had no one running for that office in its primary. The court construed the law favorably to political parties, and put Witek on the ballot.

No one yet knows if the Green Party will be on the ballot for Governor and U.S. Senator in Pennsylvania. The Pennsylvania Supreme Court will decide during the first week of October. In the meantime, Pennsylvania has already printed its overseas absentee ballots, listing the Green candidate for U.S. Senate, but not the Green candidate for Governor.

Briefs are due September 28 in Romanelli v Caroselli, 132 MM 2006. The issue is how many signatures are needed this year, 67,070 or 15,494. The law says a statewide minor party or independent candidate needs 2% of the winner’s vote at the last statewide election. In most odd years, Pennsylvania elects statewide judges. But in 2005, Pennsylvania only held a judicial retention election. Two statewide judges appeared on the ballot with a "Yes" and "No" choice. If that is an "election", then the 2006 petition requirement is 2% of the "yes" vote, that is, 15,494 signatures.

On September 20, U.S. District Court Judge Martha Vazquez upheld New Mexico ballot access laws. Libertarian Party of N.M. v Vigil-Giron, 06-615. The lawsuit challenged New Mexico’s "double-petitioning" law. First, a new party submits a petition signed by .5% of the last vote cast.

But, unlike the law in any other state, once this party has nominated by convention, it must submit a separate petition for each of its nominees, of 1% of the last vote cast. The lawsuit challenged the need for these nominee petitions, saying there is no state interest, since the party had already shown it enjoyed a modicum of support, by submitting the party petition.

Judge Vazquez ruled that since the U.S. Supreme Court had upheld Georgia’s 5% petition requirements for independent candidates in 1971, therefore New Mexico’s requirements must be constitutional. Since she felt it obvious that the law is valid, she granted the state’s motion for summary judgment before the party had a chance to present any evidence. Four witnesses were set to testify at a hearing on Monday, September 18. But on the preceding Friday, the judge cancelled the hearing, with no explanation.

Her opinion doesn’t mention the U.S. Supreme Court admonitions to gather and evaluate factual evidence before deciding ballot access cases. In 1974, Storer v Brown had said there is no "litmus test" to know whether a ballot access law is constitutional or not; instead the Court must examine the history of how many times the law has been been used. In 1983, Anderson v Celebrezze had said, "The court must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. The Court must not only determine the legitimacy and strength of each of those interests, it must also consider the extent to which these interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional."

The only state interest mentioned by the judge was the need to keep the ballot uncluttered. If evidence in the case had been permitted, these facts could have entered the record:

(a) New Mexico does not require nominee petitions for presidential candidates. The existing law for presidential ballot access for minor parties has been in effect since 1993. New Mexico has not had a crowded ballot for president. There were 7 candidates in 1996, 7 in 2000, and 6 in 2004. The judge said that the presidential ballot was crowded in 1992 (ten were on), but that was under a different law that was much more lenient and no longer exists.

(b) New Mexico’s ballot, for office other than president, is undercrowded. This year, over half the state legislative races have only one candidate on the ballot.

(c) No state has had fewer minor party and independent candidates on the ballot for U.S. Senate and Governor, during the period 1980-2006, than New Mexico.

(d) The number of signatures needed for a new party to run a full slate of candidates for statewide office this year, with the party label, is greater in New Mexico than in any other state except California, Oklahoma and Pennsylvania (and the Pennsylvania Supreme Court may lower that state’s requirement to 15,494).

The chart to the right shows how many signatures (or registrations, or party officers, or attendees at a meeting) are needed for a new party to place a full slate of statewide nominees on the November 2006 ballot, with the party label. This chart shows the comparative difficulty of New Mexico requirements.

This year, New Mexico has eight statewide offices up for election. The state requires a party to submit one petition (of 3,782 signatures) to qualify itself, and then another 7,564 signatures for each of its statewide nominees. The statewide slate cannot all be listed on a single petition.

Florida	(officers) 5
Mississippi	(officers) 20
Vermont	(officers) 20
Iowa	(attendees) 250
Delaware	(regis.) 259
Hawaii	648
New Jersey	800
Colorado	(regis.) 1,000
Louisiana	(regis.) 1,000
Utah	1,000
Washington	1,000
Nevada	1,750
New Hampshire	3,000
Nebraska	4,735
Wyoming	4,774
Montana	5,000
Rhode Island	6,000
Alaska	6,256
North Dakota	7,000
Connecticut	7,500
Maine	8,000
South Dakota	8,364
West Virginia	8,724
Arkansas	10,000
Maryland	10,000
Massachusetts	10,000
Missouri	10,000
South Carolina	10,000
Virginia	10,000
Wisconsin	10,000
Idaho	11,968
Minnesota	12,000
New York	15,000
Kansas	16,477
Oregon	18,381
Illinois	25,000
Arizona	26,835
Indiana	29,553
Michigan	31,731
Alabama	41,012
Tennessee	41,314
Georgia	42,676
Texas	45,253
NEW MEXICO	64,294
Pennsylvania	67,070
Oklahoma	73,188
California	(regis.) 77,389

Kentucky and North Carolina have no statewide elections, and Ohio does not now have a valid law in place (see first story above).

California: on September 19, the 9^th circuit voted 14-1 that the federal Voting Rights Act does not require that initiative and recall petitions be translated into languages other than English. Padilla v Lever, 03-56259.

Colorado: on August 30, a lower state court upheld a state law forbidding qualified minor parties from nominating someone who has not been a party member for a full year. Libertarian Party of Colorado v Doty, Arapahoe Dist Ct., 06cv-4768. This is true, even though the law lets qualified major parties nominate someone who has not been a member for a year. On September 1 the Colorado Supreme Court refused to intervene. The party will now take the case to the State Court of Appeals.

Illinois: on September 19, a lower state court put the Socialist Equality Party candidate on the ballot in a State Senate race. The party had enough signatures, but some of the sheets didn’t have the heading "State Senate, 44^th district." However, the top line in the body of the petition did have that information. Parnarauskis v State Bd. of Elections, Circuit Ct., 7^th dist, 2006-MR-499.

Maryland: state law permits nicknames on ballots. On September 5, a lower state court ruled that the state was wrong to have disallowed Daniel Vovek’s nickname, "The Wig Man". The state had printed "Wig Man", arguing that "The" is a title, and the law prohibits titles. However, it was too late to give the candidate any relief, since the primary ballots had already been printed. Vovak v Duncan, A.A.Cir. Ct. 06-115076.

Missouri: on September 14, a lower state court ruled that a new law, requiring voters to show government-issued photo ID at the polls, violates the State Constitution. Weinschenk v State, Cole Co. Circuit Court, 06AC-CC656.

Washington: the state said on September 22 that it will ask the U.S. Supreme Court to reinstate the "top-two" primary that was invalidated by the 9^th circuit on August 22. The cert petition will be filed in November.

Ohio: on September 12, a U.S. District Court Judge ruled that Charlie Morrison should not be on the ballot as an independent candidate for U.S. House, 15^th district. On September 22, the 6^th circuit agreed. Morrison v Colley, 06-4216. The candidate had enough valid signatures, but had run in the Republican primary for local party committee. Ohio does not have registration by party, and the law governing independent candidates seems to say that anyone who considers himself independent is eligible. The 6^th circuit has not yet issued an explanation for its decision.

Ohio (2): on September 1, a U.S. District Court invalidated a new law, requiring individuals who register voters to submit their work individually to elections officials, instead of letting them turn in their work to the organization that coordinated that registration drive. Project Vote v Blackwell, 1:06cv-1628, n.d.

Ohio (3): on September 8, the 6^th circuit ruled that nothing in the U.S. Constitution prevents a local government from spending tax money to defeat an initiative. The city of Union, Ohio, had spent city money asking voters to vote against an initiative that would have cancelled a tax. Kidwell v City of Union, 04-4153.

Pennsylvania: on September 5, the state’s qualified minor parties asked for a rehearing in Rogers v Cortes, the 3^rd circuit ballot access case.

Virginia: on August 30, the 4^th circuit reinstated the Republican Party’s lawsuit, asking for the right to close its own primaries. The lower court had ruled the lawsuit isn’t ripe, but the 4^th circuit said it is ripe, and directed the lower court to decide the issue. Miller v Brown, 05-2254.

On August 30, Federal Election Commission Chair Michael Toner appeared on C-SPAN. In response to a question, he said that restrictive ballot access laws are poor policy. He also said that the Commission on Presidential Debates ought to ease the standard for getting into general election presidential debates.

For the first time in decades, a major party and a minor party in Delaware are jointly running the same person. Barbara Lifflander is the Democratic nominee, as well as the Independent Party nominee, for State House, district 41. She is running against a Republican incumbent. The Independent Party had other nominees who sought major party nominations as well, but these other individuals all failed to win the major party nomination.

As a result of the New Hampshire Supreme Court decision Akins v State (noted in the last B.A.N.), New Hampshire will rotate party columns on its general election ballots, starting this year. In one-third of the State Senate districts, the Republicans will be listed in the left-hand column; in one-third of the districts, the Democrats will be listed in that column; and in one-third of the districts, the petitioning candidates will be listed in the left-hand column.

Two significant election law changes made some time ago, but not noted at the time by this newsletter, are:

South Dakota: in 1999 the legislature outlawed fusion.

Vermont: in 2001, the legislature lowered the petition requirement for independent candidates for statewide office (other than president) from 1,000 signatures, to 250. The petition deadline was moved from late September to mid-September.

The chart on page five shows the number of U.S. House nominees on the ballot in each state, for the five largest nationally-organized political parties. The chart also shows how many nominees each of these parties had for that office in 2004. The Democratic Party is the only listed party with more nominees for U.S. House this year than in 2004.

`	Dem 06	Dem 04	Rep 06	Rep 04	Lbt 06	Lbt 04	Grn 06	Grn 04	Con 06	Con 04
Ala	6	6	6	7	0	0	0	0	0	0
Alas	1	1	1	1	1	1	1	1	0	0
Ariz	7	6	8	8	8	8	0	0	0	0
Ark	4	4	4	3	0	0	0	0	0	0
Cal	52	51	47	50	24	24	7	12	2	2
Colo	7	7	6	7	3	3	3	1	1	3
Ct	5	5	4	5	1	0	2	1	0	1
Del	1	1	1	1	0	1	1	0	0	0
D.C.	1	1	1	1	0	0	0	1	0	0
Fla	24	19	19	20	1	2	0	0	0	1
Ga	13	9	12	11	0	0	0	0	0	0
Hi	2	2	2	2	0	1	0	0	0	0
Id	2	2	2	2	0	0	0	0	2	0
Ill	19	19	18	18	1	3	0	0	0	0
Ind	9	9	9	9	2	7	0	0	0	0
Iowa	5	5	5	5	0	2	0	0	0	0
Kan	4	3	4	4	0	4	0	0	0	0
Ky	6	5	6	6	3	2	0	0	1	1
La	6	6	7	7	5	0	0	0	0	0
Maine	2	2	2	2	0	0	0	0	0	0
Md	8	8	6	8	0	0	4	6	0	1
Mass	10	10	3	5	0	0	0	0	0	0
Mich	15	15	13	15	13	15	8	6	8	7
Minn	8	8	8	8	0	0	1	2	1	0
Miss	3	2	4	4	0	0	0	0	0	0
Mo	9	9	9	9	9	9	4	0	0	8
Mont	1	1	1	1	1	1	0	0	0	0
Neb	3	3	3	3	0	1	0	3	0	1
Nev	3	3	3	3	2	3	0	0	3	2
N H	2	2	2	2	1	1	0	0	0	0
N Jer	13	13	11	12	4	9	0	4	1	0
N Mex	3	3	3	3	1	0	0	0	0	0
N York	29	28	25	27	1	0	1	1	0	0
No C	13	13	12	13	0	0	0	0	0	0
No D	1	1	1	1	0	0	0	0	0	0
Ohio	18	18	18	16	0	0	0	0	0	0
Okla	5	3	5	5	0	0	0	0	0	0
Ore	5	5	5	5	1	2	1	0	4	5
Penn	19	16	17	16	0	7	4	3	1	5
R I	2	2	1	2	0	0	0	0	0	0
So C	6	4	6	6	1	0	3	2	0	2
So D	1	1	1	1	1	1	0	0	0	0
Tenn	9	8	9	9	0	0	2	0	0	0
Tex	31	28	27	29	25	30	0	0	1	0
Utah	3	3	3	3	3	1	0	1	3	3
Vt	1	1	1	1	0	0	1	0	0	0
Va	9	8	10	11	1	0	0	0	0	0
Wash	9	9	9	9	0	3	0	1	0	0
W Va	3	3	3	3	0	0	0	0	0	0
Wis	7	8	8	7	0	2	2	2	0	2
Wyo	1	1	1	1	1	1	0	0	0	0
TOTAL	426	400	392	407	114	144	45	47	28	44

"Con" = Constitution Party; "Lbt" = Libertarian; "Grn" = Green.

These parties have statewide nominees on the ballot:

Libertarian: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, Wyoming (31).

Green: Alaska, Arkansas, California, Connecticut, Delaware, Dt. Of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New York, Ohio, Oregon, maybe Pennsylvania, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin (27 or 28).

Constitution: California, Colorado, Connecticut, Idaho, Michigan, Minnesota, Montana, Nebraska, Nevada, Oregon, South Carolina, South Dakota, Utah (13).

Socialist Workers: Iowa, New Jersey, New York (3).

Working Families: Massachusetts, New York (2).

Reform: Florida, Kansas (2).

Socialist: New Jersey (1).

Socialist Equality: New York (1).

If a state party is not affiliated with the national party, yet it shares the name of that party, it is listed above. The Independent Green Party of Virginia is listed above even though it is not affiliated with the national Green Party.

One-state parties that have statewide nominees are: Alaska Independence, Peace & Freedom (Ca), Independent (De), Populist (Md), Natural Law (Mi), Independence (Mn), Conservative (NY), Independence (NY), Progressive (Vt), Liberty Union (Vt), Mountain (WV), Independence (SC).

On September 15, the South Carolina Election Commission declared that the Labor Party petition is valid. The Labor Party was formed nationally in 1990, but until now, had never been on the ballot in any state. It is not running any candidates this year.

The Progressive Party, which already has six members in the Vermont House of Representatives, is running 17 candidates for that office this year, and is thought to have a good chance to win more than six seats this year. One of its incumbents has already won the Democratic and Republican primaries as well, and six of the party’s candidates won this year’s Democratic primary.

The Libertarian Party has six candidates for the Vermont House on the ballot. Five of them won the Republican nomination as well. Three of those who won a Republican primary had ballot-listed opponents in that primary.

If everything had gone as planned for the Libertarians, the five who won Republican primaries would have been listed on the November ballot as "Libertarian, Republican". But because some paperwork was delivered a day late to the Secretary of State’s office, three of the "Libertarian, Republicans" will be listed on the ballot only as "Republican". Then there are two who will be listed as "Libertarian, Republican" and one listed as "Libertarian."

One faction of the Prohibition Party will hold its presidential convention September 13-14, 2007, at the Adam’s Mark Hotel in Indianapolis. This is the faction that does not recognize Earl Dodge as national chairman.

Massachusetts voters will vote on November 7 on whether to legalize fusion. The measure is on the ballot as "Question Two." The argument against it, in the Massachusetts voters pamphlet, is signed by Representative Anthony Petrucelli, a Democrat from East Boston. Petrucelli says fusion would confuse the voters. The argument in favor of fusion shows what the ballot would look like. See www.sec.state.ma.us/ele/elepdf/IFV_2006.pdf, to see the arguments.

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