NEW JERSEY SUED OVER DEFINITION OF "PARTY"

NO QUALIFIED PARTIES OTHER THAN DEM & REP SINCE 1920

On October 13, the Green, Libertarian and Conservative Parties filed a lawsuit aimed at New Jersey’s definition of "party." The definition has existed since 1920 and only the Democrats and Republicans have ever met it. "Party" is a group whose Assembly nominees polled 10% of all votes cast for that office in the state.

New Jersey has 80 members of its lower legislative house, called the Assembly. The only party other than the Democrats and Republicans that has qualified candidates for the legislature in even half the races (in the last 65 years) was the Conservative Party, in 1997. It put 47 candidates on the ballot, but together, they polled fewer than 2% of all the votes cast for that office throughout the state. The best showing for any Conservative that year was 7.73%. Even if he had polled 10%, that wouldn’t have had any effect; the entire group of 47 candidates would have needed to average 18%.

New Jersey ballot format artificially depresses the vote for minor parties. New Jersey is the only state that prints party columns for qualified parties, but not for unqualified parties. In the 18 counties (out of 21) that use a party-column ballot format, the Democratic column has "Democratic" in large letters at the top; the Republican column has "Republican" in large letters at the top; but everyone else is jumbled into columns that are headed "Nomination by Petition".

In 2003, a New Jersey legislator, Matt Ahearn, joined the Green Party. He ran for re-election as a Green in Bergen County. Since his name was buried in the "Nomination by Petition" column, to the right of the major party columns, it is likely that many voters didn’t even find his name on the ballot. "Green" was printed on the ballot next to his name is miniscule print.

To see this ballot, see the Dec. 1, 2003 Ballot Access News (back issues are archives at ballot-access.org). Ahearn only received 10.8% of the vote, an absurdly poor showing for an incumbent running for re-election who was not suffering from any scandal.

New Jersey’s definition of party has been expressed in terms of the vote for Assembly since the state’s first ballot access law, passed in 1890. However, between 1893 and 1903, it required a 2% vote; and between 1903 and 1920, 5%. The Socialist and Progressive Parties were both qualified parties in New Jersey during the 1910’s decade, but they are the last instances at which a party other than Democratic and Republican met the test.

The only other states in which no party, other than the Democratic and Republican Parties, has met the definition of "party" in the last twenty years are Georgia (1942) and Tennessee (1972). A lawsuit challenging the Tennessee definition of "party" will probably be filed in the next few months.

New Jersey is one of only eleven states in which there is no task by which a group can transform itself into a qualified party, before an election. Instead, all New Jersey offers are procedures for candidates to qualify for the November ballot, with a partisan label of their choice to be printed in tiny letters on the ballot next to their names, but under the "Nomination by Petition" column.

The lawsuit does not directly attack the 10% definition. Instead, it argues that since the state courts have already recognized that the unqualified parties are, indeed, bona fide parties, therefore particular state policies that discriminate against them are unconstitutional.

The prior lawsuit, won in 2001, said that voters have a right to register as members of unqualified parties. Even though that case was won more than five years ago, the state still doesn’t have any procedures in place for deciding which unqualified parties may exercise voter registration rights. Instead, the state keeps a tally for the five parties that won the 2001 case, and no other parties. This is foolish, since two of the five parties that won the 2001 case no longer even exist in New Jersey (the Reform and Natural Law Parties). Meanwhile, Conservative Party members can’t register into their party, since it wasn’t part of the 2001 lawsuit. Even more frustrating, the 2005 legislative session passed a bill revamping the voter registration form, yet completely ignored this problem.

The new lawsuit has been planned for almost two years. Attorneys hoped to persuade state officials to make some improvements by regulation, but no progress was made.

The specific discriminatory practices attacked in the lawsuit are: (1) no implementation of the 2001 decision on how unqualified parties can qualify for a registration tally; (2) qualified parties can receive higher contributions than unqualified parties; (3) qualified parties can make unlimited donations to their nominees, whereas unqualified parties can’t; (4) qualified parties are exempt from lobbying fees, whereas unqualified parties are not; (5) primary petitions for major party members do not say that the signer intends to vote for the named candidate, but petitions for minor party and independent candidates do.

Also, the lawsuit attacks the law making it illegal for a circulator to work outside his or her home district (that law applies to major party primary petitions as well as to petitions for minor parties and independents).

On October 3, the Pennsylvania Supreme Court issued a one-sentence order, denying any relief to the Green Party statewide nominees. In Re Nomination Paper of Rogers, 108 MAP 2006. The issue was how many signatures are needed this year for statewide minor party and independent candidates, 15,494 or 67,070. That, in turn, depended on whether the statewide 2005 judicial retention election (in which voters were asked to vote "yes" or "no" on State Supreme Court justices whose terms were expiring), was an "election". If it was, then the number needed should only have been 15,494. If that event wasn’t an "election", then there was no "election" in 2005, and the requirement was based on the much higher turnout year of 2004.

As a result, Pennsylvania became one of only four states that holds statewide partisan elections this year, with no minor party or independent candidates on the ballot in any statewide election. The others are Alabama, New Hampshire and New Mexico.

The federal Pennsylvania lawsuit, alleging that the Green, Libertarian and Constitution Parties shouldn’t need any signatures this year for their nominees, because those parties are qualified parties (because of their high vote in 2004), is still unresolved. The petition for rehearing filed on September 5 is still pending.

The October 1, 2006 B.A.N. said that three U.S. Courts of Appeals had struck down laws that required too many signatures. The cases were from Illinois, New York and Ohio.

In the Ohio and New York cases, the state did not ask for a rehearing (Ohio had asked for more time to file its request for a rehearing, but then didn’t actually file one). However, Illinois did request a rehearing. The Illinois law on how independent candidates for the legislature get on the ballot had been struck down. Illinois’ petition for rehearing doesn’t say anything new, and is likely to fail.

On October 23, a Florida state court ruled that a gubernatorial debate sponsored by Public Television must invite Max Linn (Reform Party nominee) into the debate, or else not hold that debate. Linn v Fl. Public Broadcasting Service, 06-16781, 17^th dist. This was the first time any court had ordered a candidate into a debate, since before the U.S. Supreme Court ruled adversely in 1998 in Arkansas Educational TV v Forbes. But, the next day, the 4^th district Appeals Court reversed the decision.

The U.S. Supreme Court had ruled in 1998 that Public TV cannot exclude candidates who have a real campaign. The Supreme Court had ruled against Forbes because, it said, he had no campaign headquarters, no advertising, and had raised very little money. Linn, on the other hand, has been running TV ads, has a campaign headquarters, has paid staff, and is spending over $1,000,000.

The State Court of Appeals said that since the debate sponsors required a candidate to be at 10% in the polls, and since Linn was only at 2%, that he could be excluded. The Appeals Court failed to note that the Supreme Court had not told lower courts to examine poll numbers, but merely to see if the candidate had a large and vigorous campaign.

The list below tells whether major party debates in 2006 for Senate, Governor, and Congressman-at-large included any minor party or independent candidates. If there is no entry for one of these offices, this means: (1) no such office was up this year in that state; or (2) that office had no non-major party candidates; or (3) no debate for that office was held.

This year, there were 37 states in which major party opponents for Governor, Senator, or Congress-at-Large debated, and in which non-major party candidates were on the ballot for at least one of those offices. Out of those 37 states in which debate inclusion could have occurred, it did occur in 17 states.

Last year, the Iowa Libertarian and Green Parties sued Iowa in federal court, against Iowa regulations that only let voters register into qualified parties, or as independents. Iowa has been one of only two states that doesn’t print a blank line on the "political party" question on voter registration forms. Iowa prints a checkbox for each qualified party and a checkbox for independent, but there is no way to register into an unqualified party. Iowa currently recognizes only the Democratic and Republican Parties.

The state has said it wants to settle the lawsuit, and has offered to let any group be named as a choice on the voter registration form if it had statewide nominees on the ballot in the last election, and if it submits a petition signed by 50 people who say they are members of that party. There would still be no blank line.

Unqualified parties appearing on the Iowa ballot this year are Green, Libertarian and Socialist Workers. If the settlement is finalized, they would each have the option to submit the 50-signature petition and then be listed on voter registration forms. However, the Socialist Workers Party has never been interested in encouraging its members to register publicly as members, and is unlikely to take advantage of the proposal.

It is rare for a state to print the name of an unqualified party on voter registration forms. The only other state that does so is Utah (which prints the name of every party that has been qualified at any time in the last 20 years).

New Mexico Representative Brian Moore (R-Clayton) said last month that he will introduce a bill next year to delete the law that requires minor party nominees to submit petitions in order to get on the ballot.

Alabama: the 11^th circuit will hold oral arguments in the ballot access case the week of January 27, 2007. Swanson v Worley, 06-13643. The case challenges the early June petition deadline for minor party and non-presidential petitions, and the 3% (of the last gubernatorial vote) petition requirement.

Alaska: a lower state court will hold oral arguments in the Green Party’s case against the definition of "party" on November 13, in Anchorage, at 3 p.m. Green Party of Alaska v State, 3AN-03-9936.

Arizona: on October 20, the U.S. Supreme Court issued a 5-page opinion, reinstating a law that requires photo ID at the polls. The Court said, "We underscore that we express no opinion here on the correct disposition, after full briefing and argument, of the appeals from the District Court’s September 11 order or on the ultimate resolution of these cases." The Court merely said that while the case is pending, the restriction should be in effect, partly to gain data about how many people the law injures. The decision was unanimous. Purcell v Gonzalez, 06A375.

California: the cities of Oakland and San Jose both regulate how much money anyone can give to an independent expenditure committee that tries to influence city election campaigns. On September 20, a U.S. District Court invalidated the San Jose restriction. San Jose Silicon Valley Chamber of Commerce PAC v City of San Jose, C06-4252. On October 19, another U.S. District Court restrained Oakland from enforcing its restriction. OAKPAC v City of Oakland, C06-6366. The usual rationale for campaign finance restrictions is that office-holders can be bribed by unrestricted donations. However, independent expenditures, not made in connection with any candidate, do not carry that danger.

Florida: on October 24, a U.S. District Court invalidated a law keeping exit pollsters more than 100 feet from polling places. CBS Broadcasting v Cobb, 06-22463.

Florida (2): on October 18, the Democratic Party won a court order in lower state court, preventing elections officials from posting a notice at the polls that a vote for Mark Foley for US House, 16^th district, will be counted for his replacement, Joseph Negron. Florida law provides that when a candidate withdraws after the primary, parties may replace the nominee, but ballots will not be re-printed to list the new nominee. Thurman v Cobb, Leon Co. Circuit Court, 2006-ca-2619. An appeal is pending in the State Supreme Court.

Idaho: on September 27, the State Supreme Court ruled that county officials must check signatures on petitions, whether they think the initiative would be legal or not. The initiative concerned marijuana legalization. Liberty Lobby of Idaho v Wright, no. 31792.

Kentucky: on October 10, a U.S. District Court struck down a state regulation that makes it illegal for a candidate for Judge to publicly state his or her opinion on political and social issues. Carey v Wolnitzek, 3:06-36-KKC, Frankfort.

Massachusetts: a lawsuit challenging the law that always give incumbents the top spot on the ballot is moving ahead. White v Galvin, ca04-427, Plymouth County Superior Court.

Missouri: on October 16, the State Supreme Court invalidated a law requiring that voters at the polls show government photo-ID. Weinschenk v State, SC88039.

Nevada: on October 20, the 9^th circuit invalidated a Las Vegas law banning card tables from a public street that is closed to cars and open to pedestrians (the "Fremont Street experience"). The ruling applies to groups that use the card tables for expressive purposes, not for selling items. The ruling will help petition circulators. ACLU of Nevada v City of Las Vegas, 05-15667.

New Mexico: the ACLU has filed a notice of appeal in the Libertarian Party’s ballot access case described in the October B.A.N. Libertarian Party of New Mexico v Vigil-Giron.

New York: on October 24, the 2^nd circuit ruled that a state law, banning payment of petition circulators on a per-signature basis, is probably constitutional. Therefore, the court refused to issue an injunction against it. Person v New York State Bd. of Elections, 06-4513. An independent candidate for Attorney General, Carl Person, had filed the case.

Ohio: on September 26, a U.S. District Court struck down a state law barring exit pollsters from being within 100 feet of a polling place. ABC v Blackwell, 1:04-cv-750, s.d.

Ohio (2): on September 29, Ralph Nader filed a new lawsuit against a law requiring petitioners to be registered voters. An earlier Nader lawsuit on this point resulted in a decision in which the judge said the law was probably unconstitutional, but that he would not rule since he felt the Nader circulators committed fraud. The new lawsuit covers any standing problem by asking for damages, since Nader was kept off the 2004 ballot because of this law. Nader v Blackwell, 2:06cv-821, s.d.

Oregon: on October 3, a voting rights group filed a federal lawsuit against the 2005 law that makes it illegal for primary voters to sign for an independent candidate.

On October 10, the Federal Election Commission issued an extraordinarily hostile ruling on campaign finance regulations for Unity.08. Advisory Opinion 2006-20 can be read on the FEC’s web site, fec.gov. It says that no one may give Unity.08 more than $5,000. By contrast, anyone may give a political party as much as $25,000. A neutral observer would probably conclude that no federal law prohibits donations in any amount. Unity.08 is not recognized as a "national committee" by the FEC. Nor can it possibly be described as a campaign committee, since it has no candidate. Unity.08 wants to circulate petitions to get on the ballot, and then nominate a presidential candidate. Unity.08 may challenge the ruling.

~	# seats	Repub.	Demo.	Lib’t.	Constit.	Green	Reform	oth(1)	oth(2)	indp.
Alab.	140	98	110	1	0	0	0	1	0	1
Alaska	50	42	40	1	0	3	0	1	0	3
Ariz.	90	76	69	5	0	0	2	0	0	3
Ark.	117	52	94	0	0	0	0	0	0	2
Calif.	100	90	98	30	0	7	0	7	0	0
Colo.	83	69	81	4	2	2	0	0	0	0
Conn.	187	152	154	2	6	4	0	17	0	14
Del	52	38	43	1	0	0	0	5	0	0
Florida	140	110	85	1	2	1	0	0	0	3
Ga.	236	163	146	0	0	0	0	0	0	2
Hawaii	64	55	61	1	0	1	0	0	0	1
Idaho	105	94	70	5	3	0	0	1	0	0
Illinois	157	117	122	0	0	4	0	1	0	0
Indiana	125	105	102	10	0	0	0	0	0	2
Iowa	125	97	103	2	0	0	0	0	0	8
Kansas	125	101	99	24	0	0	5	0	0	0
Ky.	119	82	91	0	0	0	0	0	0	2
Maine	186	181	185	0	0	10	1	1	0	10
Md.	188	135	178	0	5	8	0	1	0	4
Mass.	200	72	183	2	0	2	0	0	0	16
Mich.	148	143	148	25	11	8	0	0	0	6
Minn.	201	197	197	0	0	2	0	16	0	2
Mo.	180	137	159	13	0	0	0	0	0	3
Mont.	125	109	120	3	19	0	0	0	0	2
Nevada	53	36	47	4	14	0	0	0	0	0
N.H	424	371	381	3	0	0	0	0	0	2
N.M.	70	40	57	0	0	2	0	0	0	0
N.Y.	212	163	198	0	0	1	0	5	20	2
No.C.	170	125	127	0	0	0	0	0	0	1
No.D.	118	115	109	0	0	0	0	0	0	2
Ohio	116	112	110	0	0	1	0	0	0	1
Okla.	125	94	93	0	0	1	0	0	0	4
Ore.	75	65	71	10	3	1	0	0	0	1
Pa.	228	184	199	8	7	12	0	1	1	9
R.I.	113	61	107	0	0	1	0	0	0	4
So.C.	124	87	68	2	1	0	0	1	0	1
So.D.	105	101	91	3	3	0	0	0	0	6
Tenn.	116	82	87	0	0	0	0	0	0	12
Texas	166	116	127	97	0	0	0	0	0	0
Utah	91	89	70	7	34	1	0	9	0	0
Vt.	180	122	143	6	0	0	0	17	4	10
Wash.	122	99	107	0	0	0	0	0	0	1
W.V.	117	95	109	0	0	0	0	1	0	0
Wisc.	116	89	101	0	1	3	0	0	0	5
Wyo.	75	63	38	2	0	0	0	0	0	3
TOT	6159	4824	5178	272	111	75	8	85	25	148

Four states don’t elect state legislators this year: Louisiana, Mississippi, New Jersey, Virginia. Nebraska has non-partisan legislative elections. Therefore, those five states aren’t listed above.

New York University’s Tamiment Library has acquired the archives of the Communist Party USA. The collection includes 325 microfilm reels of documents that were shipped to the Soviet Union for safe-keeping during the early 1950’s, when the party’s officers were being sent to prison and the party believed that its records were not safe.

The Libertarian and Constitution Parties have already started circulating petitions to qualify themselves for the 2008 election. In North Dakota, both parties recently finished petitioning for party status for 2008, and the Libertarian Party is halfway done with its Nebraska party petition. Unity.08 is gearing up for party petitioning as well.

The December 1 B.A.N. will carry a chart showing petitioning requirements for 2008. In approximately half the states, these requirements are dependent on how many people vote on November 7, 2006. The chart will also show which parties are already on the ballot in which states.

Two members of minor parties were elected in Alaska’s Borough elections on October 3. Mike Musick, a registered Green, won in Fairbanks North Star Borough; and Sara Chambers, a registered Libertarian, won in Juneau. Alaska Boroughs are physically larger than the cities they encompass, and are to a certain extent the Alaska equivalent of counties. Musick’s victory may help the Green Party win its pending ballot access case. The state has been arguing that the party has no genuine voter appeal.

Louisiana held a special election on September 30, 2006, for unexpired terms for Insurance Commissioner and Secretary of State. The Insurance Commissioner’s race had 3 candidates, two Republicans and a Libertarian. The Libertarian, S. B. A. Zaitoon (a Lebanese name) polled 10.61%.

The Secretary of State’s race was more crowded. It had seven candidates, a Democrat, four Republicans, a Libertarian and an independent. The Libertarian polled 1.82% and the independent polled 3.77%. Republicans won both races. The new Secretary of State is Jay Dardenne.

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