PENNSYLVANIA DEMANDS BIG $$ FROM BOTH NADER AND ROMANELLI FOR REMOVING EACH FROM THE BALLOT

On January 8, the U.S. Supreme Court refused to hear Ralph Nader’s appeal in Nader v Seroty, 06-696. And on January 25, the Pennsylvania Commonwealth ruled against Carl Romanelli, the Green Party candidate in 2006 for U.S. Senate. This means that Nader owes various Pennsylvania court officials $81,102.19 (plus interest of $8,719 that continues to accrue), and that Romanelli owes $80,408, due February 24, 2007.

These fees are not fines, and no one ever indicted Nader or Romanelli for any wrong-doing. These are civil fees. They are costs than can be assessed in civil cases against the losing side.

Until Pennsylvania decided to interpret its election challenge laws to permit such fees, no state had ever charged a candidate (whose petitions to get on a ballot were insufficient) for the court costs associated with the challenge process. Most states don’t use the challenge process; instead elections officials check signature validity. Even in the few states that do use a challenge process, adjudication is by elections officials, not by judges.

Until 2004, no petition challenge had been made in Pennsylvania to a statewide minor party or independent petition since 1938. And even in 1938, when the Socialist Party successfully challenged the petition of the Socialist Labor Party, no one thought to impose fees. The fiscal threat to Pennsylvania minor party and independent candidates that surfaced in 2004 is entirely new in Pennsylvania.

The Pennsylvania Challenge-Fee System is Unconstitutional

In 1966, the U.S. Supreme Court ruled that Virginia’s $1.50 poll tax was unconstitutional. Harper v Virginia Bd. of Elections, 383 U.S. 663.

The Court said, "It is argued that a State may extract fees from citizens for many kinds of licenses; that if it can demand from all an equal fee for a driver’s license, it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process…Wealth or fee paying has no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned."

In 1972 and again in 1974, the Supreme Court applied that principle to mandatory candidate fees, and unanimously rejected them, at least for candidates who cannot afford them. Bullock v Carter, 405 U.S. 134, struck down Texas filing fees that ranged from $1,424 to $6,300. Lubin v Panish, 415 US 709, struck down a California fee of $702. In 2003, the 3^rd circuit struck down Pennsylvania’s mandatory filing fee of $200, in Belitskus v Pizzingrilli, 343 F 3d 632.

One may object that poll taxes and filing fees are not directly analogous, because Pennsylvania candidates whose petitions are sufficient need not pay court costs. However, when Pennsylvania requires as many signatures as it does (67,070 in 2006), it is impossible for a candidate to know in advance if his or her petition will pass muster. To make a better analogy, imagine that Virginia had imposed a poll tax only on voters who vote for a losing candidate instead of a winning candidate, and that the tax was to be collected after the election was over. A voter would be told, "Don’t worry; you may vote without paying the poll tax, IF your candidate is a winner."

Such a hypothetical poll tax would obviously deter potential voters. Similarly, the challenge-fee system will deter potential candidates. If deterrence is the real-world consequence of the threatened fee, then the fee might as well have been mandatory from at the beginning of the process. The effect is the same; candidates will be afraid to file.

When candidates are deterred from getting on the ballot, then voters who want to vote for them lose their freedom to vote for the candidate of their choice. This is especially true in Pennsylvania, where the state Elections Director admitted on the stand in the Romanelli hearing (held on January 9) that certain counties, including Philadelphia, did not count write-in votes in November 2006.

Pennsylvania Press Has Been Silent

When state government tramples on fundamental rights, one can often count on major newspapers to publicize the injustice. In 1997, when the Pennsylvania legislature passed a bill quadrupling the number of signatures required for minor party and independent candidates, the big newspapers in Pennsylvania, as well as the New York Times, denounced the bill. Governor Tom Ridge then vetoed it.

But the Pennsylvania newspapers have been almost completely silent about the challenge-fee problem, even though it is new to the state. One sorry exception was the Pittsburgh Tribune-Review of January 13, 2007. An editorial titled "The Nader Case: Pay up, Ralph," said "Of the 51,000 signatures collected by the Nader campaign, two-thirds were rejected. Commonwealth Court observed sharply that the petition, signed by such luminaries as Fred Flintstone and Mickey Mouse, ‘was the most deceitful and fraudulent exercise ever perpetuated’ on it.

The quote above was from Judge James Gardner Colins, one of the eleven judges who reviewed Nader’s 2004 petitions. Statewide, only 687 signatures out of 51,273 were found to be forgeries. Among the eleven judges, Colins found 588 of the forgeries (from among the 10,794 signatures he reviewed), whereas all the other ten judges put together only found 99 forgeries (out of the 40,479 signatures they reviewed). Handwriting experts were on hand in all the courtrooms (which is why the court costs were so high), and signatures on petitions were compared with signatures on voter registration records. It is peculiar that the other ten judges only found a forgery rate of two-tenths of 1%, whereas Judge Colins found a forgery rate of 5.4%.

Concerning Colins’ hyperbole about ‘the most deceitful’ petition ever reviewed, Nader’s petition was the first time any statewide minor party or independent petition had been challenged in Judge Colins’ lifetime. His comparison is meaningless.

Romanelli will appeal his loss in the Commonwealth Court to the Pennsylvania Supreme Court, but Nader has no further legal options.

One is reminded of the book Brave New World. In the future, society was structured so that all babies were grouped into five social classes. Babies in the lower two classes were conditioned (by electric shock) to hate and fear books. They were the classes intended to be docile workers. Pennsylvania judges seem to be conditioning Pennsylvanians to hate and fear running for office outside the two major parties.

The U.S. Supreme Court conference of February 16 will decide whether to hear these cases: (1) N.Y. Bd. of Elections v Lopez Torres; (2) Protect Marriage Illinois v Orr; (3) Romanelli v Election Board. The first case concerns the number of signatures needed to get on a primary ballot; the other two concern procedures for checking signatures on petitions.

On January 24, the New Hampshire House Election Law Committee heard HB 48, to change "party" from a group that polled 4% for either Governor or Senator, to 2%. Twelve people testified for the bill, and no one testified against it. The Secretary of State’s representative had a few concerns about space on general election ballots. However, it was brought out that if SB 36 passes, these concerns would be laid to rest. SB 36 would eliminate party columns (that bill has a legislative hearing January 31). Activists are optimistic that the committee will pass HB 48 in February.

Colorado: SB 7 and HB 7 would let a state resident over the age of 18 circulate any type of petition. Current law won’t let anyone circulate a candidate petition for district or county office if he or she doesn’t live in that district or county.

Illinois: HB 158, by Rep. William Black, would lower minor party candidate petitions so that they equal the number of signatures needed by major party members seeking a place on the primary ballot. That would cut the statewide petitions from 25,000 to 5,000; and lower the district petitions from 5% of the last vote cast, to approximately one-fourth of 1% of the last vote cast. Also, Senator Mike Boland will introduce a bill to move the independent petition deadline from December of the year before the election, to June of the election year.

Nebraska: LD 539, by Senator Kent Rogert, would end the primary screen-out for independent presidential petitions. Currently, a primary voter may sign for a new party, and for an independent candidate for any office except president. It is silly that presidential independents can’t get signatures from primary voters.

New Mexico: HB 331, by Rep. Brian Moore, would eliminate the need for nominees of qualified convention parties to submit petitions.

Oklahoma: SB 28 and HB 1539, by Senator Randy Brogdon and Rep. Marian Cooksey, would lower the new party petition from 5% of the last vote cast, to 5,000 signatures. It would also lower the vote test for a party to remain on from 10% to 1%.

Oregon: Senator Ben Westlund has introduced a bill to eliminate the primary screen-out for independent candidates. The bill doesn’t have a number yet.

South Dakota: Senator Frank Kloucek is about to introduce a bill to make it easier for an already-qualified party to remain on the ballot.

Texas: Rep. Mark Strama (D-Pflugerville) will introduce a bill to eliminate the primary screen-out as soon as he can find a Republican co-sponsor.

West Virginia: Delegate Barbara Fleischauer has introduced a bill to move the petition deadline for minor party and independent candidates (for office other than president) from May to August. The presidential deadline is already in August.

Connecticut: Susan Bysiewicz, the Secretary of State, says she will have a bill introduced to move the independent and minor party candidate petition deadline from August to July. She says this will discourage, but not outlaw, "sore losers".

Also in Connecticut, Senator Mary Ann Handley has introduced SB 556, to outlaw fusion. This is odd, since she herself was helped by fusion last year. She received 20,969 votes on the Democratic line and 1,118 on the Working Families line.

Virginia: HB 3157 would impose filing fees on minor party and independent candidates (for all office except president). The fees would be 2% of the annual salary of the office, so congressional candidates would need $3,300. The sponsor, Delegate Leo Wardrup, says because cities are now allowed to hold city elections in November, he is afraid the November ballots will be too crowded.

Washington Secretary of State Sam Reed has asked the legislature to pass SB 5604 or HB 1534, identical bills that revise minor party and independent candidate procedures.

Current law requires 1,000 signatures for statewide and U.S. House candidates (who are not members of qualified parties), and 100 signatures for lesser office. The new bills retain these figures, except they lower U.S. House to 500 signatures. Current law requires the signatures to be gathered at so-called "conventions", but in practice, these petitions are really one-location petition drives, since anyone walking past the so-called "convention" is deemed to be an attendee. The new bills drop this sham, and simply provide for ordinary petitions, which could be circulated as early as the group wishes.

These are all beneficial changes. Unfortunately the bill requires the nominees of unqualified parties, and independent candidates (unless they are running for president), to appear on some sort of unspecified primary ballot, where they each would need to poll the same number of votes that they also needed for their petitions. This provision is a setback, compared to existing law. Activists will try to delete this part of the bills.

California: SB 113 and AB 157 would create a February presidential primary. The primary for other office would continue to be in June.

Florida: HB 537 would move the presidential primary from March to February.

Illinois: a bill will soon be introduced to move the primary from March to February.

New Jersey: A 3832 and S2193 would move the presidential primary from late February to early February. S 2345 would make the same change, but would move the primary for other office to February as well.

The movement to persuade states to pass bills for the "National Popular Vote Plan" for presidential elections is very energetic. Already, bills to implement the plan have been introduced in 16 states. The Colorado bill, SB 46, has already passed the Senate. To keep up with these bills, see www.nationalpopularvote.com.

Arizona: HB 2287 would ban vote-counting equipment that is not able to cope with Instant-Runoff voting.

Hawaii: SB 630 would require the state to study how to implement Instant-Runoff voting.

Minnesota: SF 39 would implement IRV in all elections in the state.

Vermont: a bill will be introduced any day to provide that one or two particular statewide offices should use IRV. The Secretary of State supports the bill, and it is expected to have as many as 50 co-sponsors.

The voters of Springfield, Ill., and Sarasota, Fla., will soon vote on whether to use IRV in city elections.

The Missouri Secretary of State has ruled that new party petitions need not show a list of candidates for presidential elector. Before 1993, Missouri required petitions for a new party to list all of the new party’s nominees for all office (which forced new parties to choose candidates before the petition could circulate). That system was improved in 1993. But due to a typographical error in the 1993 bill, the new law continued to say that such petitions must list the new party’s candidates for presidential elector. The Secretary of State ruling implicitly acknowledges that intent of the law.

On January 3, the 7^th circuit denied Illinois’ request for a rehearing in Lee v Keith, the independent candidate petition deadline victory.

On January 10, Unity.08 filed a lawsuit against the Federal Election Commission, to overturn an FEC ruling that makes it illegal for anyone to give more than $5,000 to Unity.08. Unity08 v FEC, 1:07-cv-53, U.S. Dist. Ct., Washington, D.C.

Campaign contribution limits exist because of the fear that, otherwise, powerful politicians would be bribed by receiving large campaign contributions. Campaign contribution limits infringe liberty, and cannot be justified apart from the bribery problem. Therefore, the U.S. Supreme Court has struck down limits on how much an individual may contribute to an initiative campaign. Similarly, there is no logic to justify a limit on how much money an individual may contribute to a group like Unity.08, which has no candidate for federal office and no particular ties to any federal office-holders. It is merely trying to create a new party for the limited purpose of placing an independent (or independent-minded) slate on the ballot in 2008 for president and vice-president.

Unity.08’s lawsuit will be helped by a recent 9^th circuit campaign finance opinion, Citizens for Clean Government v City of San Diego, 04-56964, issued January 19. The decision was skeptical that San Diego may limit contributions to a committee that was trying to pay circulators to recall a city councilmember. The 9^th circuit sent the case back to the U.S. District Court to give the city a chance to present evidence that the restriction is really needed.

(1) COFOE filed an amicus in the federal lawsuit in Oregon, attacking the law that makes it illegal for primary voters to sign an independent petition: (2) COFOE contributed toward the appeal of a federal lawsuit that attacks Maryland’s alphabetical order listing of candidates on primary ballots; (3) COFOE helped pay for one of the U.S. Supreme Court response briefs in Washington, bringing out the ballot access implications of the "top-two" system.

	Libertarian	Wkng Fam	Consti.	Green	Reform	Soc Eq	Indpnce	other	independent
Alab.
Alas.				415
Ariz.	11,316				927				2,763
Ark.
Cal.	138,669			13,443				5,573
Colo.			1,343
Conn.		21,128		1,895					2,175
Del.								3,733
Fla.	15,683		34,895						15,642
Ga.
Hi.
Ida.	679		3,239						293
Ill.				1,300		1,894
Ind.	1,527								1,371
Iowa									4,661
Ky.									16,413
Me.				3,248	1,559	296			11,650
Md.				3,095
Mass.				1,988					11,720
Mich.	29,666		4,628	9,555
Minn.				5,431			13,886		5,428
Mo.									47,326
Mt.	1,804		1,032						618
Nev.	4,795		39,812
N.H
N.Y.		115,184					199,718	172,472	1,395
No.C.
No.D.									1,708
Ohio									11,712
Okla.
Ore.	2,663		2,567						2,653
Pa.	2,140		24,747	2,637					1,590
R.I.				1,483					3,676
So.D.			475						8,813
Tenn.
Tex.	183,427
Utah	355		11,658					443
Vt.								2,672
Wash.
W.V.
Wis.				7,276
Wyo.									544
TOT.	392,724	136,312	124,396	51,766	2,486	2,190	213,604	184,893	152,151

Parties in the "Other" column are: Peace & Freedom (Ca.), Independent Party (Del.), Conservative (N.Y.), Personal Choice (Ut.), Liberty Union (Vt.).

State Senate totals in 2004 were: Libertarian 430,835; Working Families 135,246; Constitution 89,136; Green 64,420; Reform 7,653; Natural Law 1,427; Independence 239,975; other parties 227,396.

"Soc Eq" = Socialist Equality. "Indpnce" = Independence. "Wkng Fam" = Working Families.

	Libertaran	Wk. Fam.	Green	Consti.	Reform	Indpc	oth(1)	oth(2)	Indep.
Alab.	396						2,134		2,036
Alas.	97		509				437		4,801
Ariz.	34,826				1,516				13,784
Ark.									6,616
Cal.	122,036		35,646				29,726
Colo.	7,675		1,893	236
Conn.	569	16,265	758	1,147			429		8,118
Del	686						478
Fla.			1,613	11,156					5,698
Ga.									5,595
Hi.	609		124						151
Ida.	6,766			3,440			327
Ill.			9,274
Ind.	10,333								4,269
Iowa	570								6,394
Kan.	15,140				3,921
Ky.
Me.			5,374						8,774
Md.			13,198	5,704			2,727
Mass.	1,511		403						31,149
Mich.	9,430		2,624	7,538			847		6,582
Minn.			2,671			6,648			555
Mo.	10,600								415
Mont.				5,979					257
Nev.	5,718			10,290
N.H	1,816								1,060
N.M.			3,024
N.Y.		126,914	146			142,061	149,560	1,390	2,679
No.C.									10,757
No.D.									958
Ohio			2,072						1,127
Okla.			306						3,155
Ore.	15,963		5,188	7,801
Pa.	10,024		14,042	2,819			2,873	618	13,313
R.I.									1,190
So.C.	2,432	841		1,646			193		1,313
So.D.	1,189								5,663
Tenn.									23,077
Tex.	231,098
Utah	2,046		488	16,855			2,283
Vt.	4,300						13,934	58	5,992
Wa.							2,081
W.V.							369
Wis.			3,773	1,042					4,769
Wyo.	1,135								2,376
TOTAL	496,965	144,020	103,126	75,653	5,437	148,709	208,398	2,066	182,623

Parties in the "Oth(1)" column are: Freedom (Ala.), Alaskan Independence, Peace & Freedom (Ca.), Christian Center (Ct.), Independent Party (De.), United (Id.), Populist (Md.), Socialist (Mi., Pa.), Conservative (N.Y.), United Citizens (S.C.), Personal Choice (Ut.), Progressive (Vt. and Wa.), Mountain (W.V.)

Parties in the "Oth(2)" column are: Right to Life (N.Y.), Socialist Workers (Pa.), Liberty Union (Vt.).

In 2004, the State House totals were: Libertarian 861,814; Working Families 144,007; Green 130,926; Constitution 102,438; Reform 6,961; Natural Law 6,045; Independence 214,294; other parties 210,169.

"Indpc" = Independence. "Wk Fam" = Working Families. States not named had no partisan state house elections this year.

The December 1, 2006 B.A.N. noted that seven minor party nominees (who were not also major party nominees) had been elected to state legislatures on November 7, 2006. In addition, five independent candidates were elected to state legislatures: Bob Leeper was elected to the Kentucky Senate; Thomas Saviello and Richard Woodbury to the Maine House; and Daryl Pillsbury and Will Stevens to the Vermont House. A write-in candidate, Pam Richardson, was elected to the Massachusetts House.

This year, several petition drives to place parties on the 2008 ballot have been completed. Parties that have recently been put on the ballot are: Libertarian in Maryland and North Dakota; Green in Maryland; Constitution in North Dakota; and the Independent Party in Oregon.

These petitions are underway: the Green Party has 1,000 signatures in Az.; the Constitution Party has 250 signatures in Mo. and 200 in W.V.; the Libertarian Party has 6,500 signatures in Neb., 29,000 in N.C., and 300 in Utah.

The Green Party says it will try to qualify as a statewide party in Georgia for 2008. They need 44,089 signatures, to be gathered between April 2007 and July 2008. The Green Party has never met a signature requirement this high in any state in its history, except for its registration drive in California in 1991, when it needed 79,188 registrants.

Unity.08 says it will soon start petition drives in several states. Atlantic Monthly Magazine for Jan-Feb. 2007 has a feature story about Unity.08.

On January 16, a hearing was held in the lawsuit seeking to settle who the true Prohibition Party officers are. After hearing evidence, the judge ruled the case had been filed in the wrong court, so the case now starts over again.

On January 11, Congressman Ron Paul filed papers to create a presidential exploratory committee. Many other Democratic and Republican politicians are announcing for their party’s presidential nomination. But because Ron Paul was the Libertarian Party presidential candidate in 1988, the announcement particularly resonated with Libertarians. Paul says he won’t run for president in November under any other banner. But, were he to lose his fight for the Republican nomination, he is free to change his mind. Precedents set by John Anderson, David Duke and Lyndon LaRouche in almost all states establish that "sore loser" laws don’t apply to presidential primaries. Exceptions are Mississippi, Ohio, South Dakota and Texas.

Three years ago, the Federal Election Commission determined that the Reform Party owes the FEC $333,358. The FEC says the party did not properly spend some of the money it was given for its 2000 presidential convention. The party is fighting that determination. On January 12, the lawsuit was heard in the 11^th circuit. FEC v Reform Party of USA, 05-17083. By their comments and questions, the three judges did seem to feel that the FEC is unjustified in forbidding the national party from spending any money to raise money to pay off the debt.

Canada uses the Parliamentary system. Voters vote for Parliament, and then Parliament chooses the nation’s chief executive. Prior to any national election, the heads of each party that has members in Parliament debate each other. This is Canada’s closest equivalent to a "presidential" debate. Four parties have members in Parliament, so they are included in these debates. The nation’s political leaders are now thinking about including the Green Party in the next debate, even though the Green Party has no members in Parliament. The basis for including the Greens is that they ran a candidate in each district in the last election.

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