9^thCIRCUIT SETS UP NEW CHALLENGE TO "TOP-TWO"

On October 2, the 9^thCircuit issued an order, remanding the lawsuit Washington State Republican Party v State of Washington, 05-35774, back to U.S. District Court. The District Court is requested to allow the plaintiff political parties to "further develop the record with respect to the claims that Initiative 872 unconstitutionally constrains access to the ballot and appropriates the political parties’ trademarks, to the extent these claims have not been waived or disposed of by the Supreme Court." In the U.S. District Court, the case is number cv-05-927, and is before Judge Thomas Zilly, who had ruled "top-two" unconstitutional in 2005 on freedom of association grounds.

The 9^thcircuit order squares with footnote eleven of the U.S. Supreme Court’s earlier opinion (dated March 18, 2008) in the same case. Footnote eleven says, "Respondent Libertarian Party of Washington argues that I-872 is unconstitutional because of its implications for ballot access, trademark protection of party names, and campaign finance. We do not consider the ballot access and trademark arguments as they were not addressed below and are not encompassed by the question on which we granted certiorari: ‘Does Washington’s primary election system…violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?’ The campaign finance issue also was not addressed below and is more suitable for consideration on remand."

Why This News is Important

Oregon voters are currently voting on Initiative 65, which would impose the "top-two" system in that state. Every major newspaper in Oregon has endorsed it. And, every newspaper story on I-65 says that the U.S. Supreme Court upheld "top-two" (in Washington state) on March 18, 2008.

The Oregon newspapers are wrong, as the 9^thcircuit itself has now made clear. All the U.S. Supreme Court did on March 18 was to rule that "top-two", on its face, does not violate freedom of association. The Court left open other arguments that "top-two" is unconstitutional. But one doesn’t learn about this if one only reads Oregon newspapers.

The news is important for California also. On September 23, former California Democratic State Senator Steve Peace submitted a proposed "top-two" initiative to the Attorney General. News reports say that Governor Arnold Schwarzenegger supports the idea and will call a special election in 2009, assuming the initiative gets enough valid signatures.

New Evidence

Washington used "top-two" for the first time in its August 2008 primary. Every minor party and independent candidate for Congress failed to place first or second. Also, every minor party and independent candidate for statewide state office also failed to place first or second. Therefore, for the first time since Washington started using government-printed ballots in 1890, the November ballot will have no minor party or independent candidates on the ballot for any statewide state race or for any congressional race.

Five minor party or independent candidates for the legislature this year did place second, so they will be on the November ballot. But they only placed second because they only had one major party opponent.

This result shows what critics of "top-two" have long contended, that "top-two" means no more minor party or independent campaigns in the fall campaign season. "Top-two" stifles dissenting voices when voters are most engaged, and robs voters of any means to vote against both major parties in November.

The U.S. Supreme Court has ruled in favor of ballot access cases brought by minor party or independent candidates twelve times. Also, the U.S. Supreme Court twice remanded a ballot access case back to the lower courts, and both of those cases unltimately won also. Precedent demands that a system that excludes virtually all minor party and independent candidates from the November ballot should not be allowed to stand.

Three of the winning plaintiffs in the U.S. Supreme Court were figures who were at home in one of the two major parties, and had run in major party primaries. Yet the U.S. Supreme Court ruled in all three instances that the Constitution permitted them to qualify directly for the general election ballot as non-major party nominees.

George Wallace won his ballot access case against Ohio in the U.S. Supreme Court in 1968, even though he had run in Democratic presidential primaries in 1964, and even though he held himself out as a Democrat, and had been elected Governor of Alabama as a Democrat. He was free to have run in the Ohio Democratic presidential primary in 1968. He could have got on that primary ballot with only 1,000 signatures. But the Supreme Court said the Constitution protected his decision to run for president outside the major parties.

Similarly, Eugene McCarthy in 1976 was free to run in Democratic presidential primaries; he had done so in 1968 and 1972. John B. Anderson had run in Republican presidential primaries in 1980, and then had become an independent candidate for president that same year. The Supreme Court ruled in favor of general election ballot access for both men.

Section 29A.04.110 of the Washington election law says that elections for Congress, for legislature, and for almost all the state executive posts, are partisan elections.

"Top-two" supporters make an analogy to non-partisan elections, in which everyone runs in the first round and a run-off is held if no one gets 50% in the final round. The analogy is flawed in the context of partisan elections. Also, federal law tells the states to hold congressional elections in November. Events prior to November are not "the" congressional election.

The August 2008 Washington primary also reveals that the median second-place candidate for Congress and for state partisan office received 32.4% of the vote. Thus, in effect, "top-two" excludes everyone from the November ballot who, on the average, has less than 32.4% voter support in August. Yet, general election ballot access barriers in all the other 49 states for the are at, or below, 5% of the number of registered voters. Courts have unanimously thrown out barriers in excess of 5%.

During October, every court that was asked to put someone on the ballot during October, said "No." Courts believe it is too late to add someone to the ballot during October. However, most of these lawsuits are still pending, and maybe won after the election is over.

Arkansas: on October 27, the State Supreme Court ruled that Dwayne Dobbins filed his lawsuit too late to get any ballot access relief. He had filed his lawsuit on October 10. He had won the May Democratic primary for State House, but the Democratic Party had disqualified him because he had earlier quit the legislature as part of a plea bargain on a charge of making sexual advances to a 17-year-old girl. Dobbins v Arkansas Democratic Party, 08-1225.

Louisiana: on October 7, the U.S. Supreme Court refused to put Bob Barr on the ballot. The Libertarian Party is a qualified party in this state, but it didn’t submit the names of its presidential elector candidates by the September deadline. Libertarian Party v Dardenne, 08A269.

Connecticut: on September 16, the Libertarian Party had been told that it did not really have 7,500 valid signatures, even though 12,500 had been submitted. The party rechecked the work of the town clerks, and found that there were 7,500 valid. The party assumed the state would then put Bob Barr on the ballot. When it was clear that the state would not do that, since it had already printed the ballots, the party sued on October 1. But on October 23, U.S. District Court Judge Janet Hall ruled that the lawsuit had been filed too late. The lesson one learns is that one should always assume that state elections officials will behave badly, and such lawsuits should be filed immediately, even before the campaign has proved that it has enough valid signatures. Libertarian Party of Connecticut v Bysiewicz, 3:08cv-1513.

Mississippi: on September 30, the 5^thcircuit refused to put Socialist Party presidential nominee Brian Moore on the ballot. He had filed his electors ten minutes too late. Moore v Barbour, 08-60899.

Montana: on October 9, U.S. District Court Judge Sam Haddon refused to put Steve Kelly on the ballot as an independent candidate for U.S. Senate. Kelly had filed his lawsuit on April 8. The Judge ruled that Kelly lacks standing because he didn’t pay the filing fee in March (before he had decided to run). Kelly v Johnson, 08-25. The lawsuit argues that the March petition deadline, combined with the number of signatures (over 10,000), and the need to pay $1,650, is too burdensome.

Oklahoma: on October 6, U.S. District Court Judge David Russell refused to put Bob Barr on the ballot. Judge Russell had upheld the Oklahoma presidential petition in both 1996 and 2000, and was not inclined to rule that the law is now unconstitutional, even in the face of evidence that because no presidential candidate has qualified for the ballot outside the major parties in eight years, the law is too strict. Barr v Clingman, civ-08-730. The case had been filed on July 17, two days after the petition deadline.

Tennessee: on October 14, a U.S. District Court upheld the Democratic Party’s removal of State Senator Rosalind Kurita from the November ballot, even though she won the Democratic primary in August. The party removed her because it said too many Republicans voted in the Democratic primary. Tennessee does not have registration by party. On October 24, the 6^thCircuit also refused to put her on the ballot.

Vermont: on October 20, a lower state court ruled that the Green Party should not be on the ballot. The state recognizes parties if they have town committees in 10 towns, but the paperwork is due December 31 of odd years. The party was late to submit its paperwork. Hill v Marokwitz, Wash. Co. Superior Court, 640-9-08.

Illinois: on October 1, the 7^thcircuit upheld a state law that U.S. House candidates needs over 10,000 signatures in most election years, even though the law says they only need 5,000 in other years. Stevo v Keith, 08-3218. Stevo is an independent candidate who submitted 7,200 signatures. He has asked for a rehearing en banc. In a parallel case in state court, on October 16 the State Appellate Court upheld the same law in Druck v Illinois State Bd. of Elections, 1-08-2440. That case is being appealed to the State Supreme Court. The plaintiff, Dan Druck, is a Libertarian nominee for U.S. House.

Kentucky: on October 9, the State Court of Appeals reversed a lower court, and ruled that the Libertarian nominee for U.S. House, Edward Martin, should not be on the ballot, since he was recently a registered Republican. Cummings v Martin, 2008-ca-1791. Since ballots have already been printed, votes for Martin will not be counted.

Pennsylvania: on October 17, the State Supreme Court let Bob Barr remain on the ballot, and upheld presidential substitution. 70 MAP 2008. Republican challengers had argued that allowing stand-in candidates is illegitimate.

This chart shows how many U.S. House nominees each political party has this year. Parties in the "Other(1)" column are: Alaska, Alaskan Independence; Cal., Peace & Freedom; Colo., Unity; Ct., Independent Party; Fl., Term Limits Party; Hi., Independent Party; Ks., Reform; Minn., Independence Party; N.J., Socialist; N.Y., Conservative; Or., Independent Party; Vt., Progressive; Va., Independent Green. Parties in the "Other(2)" column are: N.Y., Independence 2 and Working Families 1; Vermont, Liberty Union Party.

`	# seats	Dem.	Rep.	Lib’t.	Green	Consti.	SocWk	other(1)	other(2)	indp.
Ala	7	6	6	0	0	0	0	0	0	0
Alas	1	1	1	0	0	0	0	1	0	0
Ariz	8	8	8	8	2	0	0	0	0	0
Ark	4	3	1	0	3	0	0	0	0	0
Cal	53	51	46	20	5	2	0	5	0	2
Colo	7	7	7	1	1	3	0	1	0	0
Ct	5	5	5	1	5	0	0	1	0	0
Del	1	1	1	1	0	0	0	0	0	0
D.C.	1	1	0	0	1	0	0	0	0	0
Fla	25	25	22	0	0	1	0	1	0	10
Ga	13	13	11	0	0	0	0	0	0	0
Hi	2	2	2	2	0	0	0	1	0	0
Id	2	2	2	0	0	0	0	0	0	0
Ill	19	19	18	0	10	0	0	0	0	0
Ind	9	9	9	5	0	0	0	0	0	0
Iowa	5	5	5	0	1	0	1	0	0	2
Kan	4	4	4	4	0	0	0	4	0	0
Ky	6	5	6	1	0	1	0	0	0	1
La	7	5	6	1	1	0	0	0	0	5
Maine	2	2	2	0	0	0	0	0	0	0
Md	8	8	8	8	1	1	0	0	0	0
Mass	10	10	4	0	0	0	0	0	0	1
Mich	15	15	14	15	12	7	0	0	0	1
Minn	8	8	8	0	0	0	0	4	0	0
Miss	4	4	4	0	1	0	0	0	0	1
Mo	9	9	8	7	0	8	0	0	0	0
Mont	1	1	1	1	0	0	0	0	0	0
Neb	3	3	3	0	0	1	0	0	0	0
Nev	3	3	3	3	2	3	0	0	0	1
N H	2	2	2	2	0	0	0	0	0	0
N Jer	13	13	12	1	4	0	1	1	0	13
N Mex	3	3	3	0	0	0	0	0	0	1
N York	29	29	27	1	1	0	1	5	3	1
No C	13	13	13	3	0	0	0	0	0	0
No D	1	1	1	0	0	0	0	0	0	0
Ohio	18	18	18	4	1	0	0	0	0	1
Okla	5	5	5	0	0	0	0	0	0	2
Ore	5	5	3	2	5	4	0	1	0	0
Penn	19	19	18	1	1	5	0	0	0	2
R I	2	2	2	0	0	0	0	0	0	1
So C	6	6	6	0	1	2	0	0	0	0
So D	1	1	1	0	0	0	0	0	0	0
Tenn	9	9	6	0	0	0	0	0	0	12
Tex Te	32	26	30	29	0	0	0	0	0	2
Utah	3	3	3	2	0	3	0	0	0	0
Vt	1	1	0	0	0	0	0	1	1	3
Va	11	11	9	1	0	0	0	2	0	1
Wash	9	9	9	0	0	0	0	0	0	0
W Va	3	3	2	0	0	0	0	0	0	0
Wis	8	7	7	2	0	2	0	0	0	2
Wyo	1	1	1	1	0	0	0	0	0	0
TOTAL	436	422	393	127	58	41	3	28	4	65

This chart shows how many U.S. House nominees each political party has this year. Parties in the "Other(1)" column are: Alaska, Alaskan Independence; Cal., Peace & Freedom; Colo., Unity; Ct., Independent Party; Fl., Term Limits Party; Hi., Independent Party; Ks., Reform; Minn., Independence Party; N.J., Socialist; N.Y., Conservative; Or., Independent Party; Vt., Progressive; Va., Independent Green. Parties in the "Other(2)" column are: N.Y., Independence 2 and Working Families 1; Vermont, Liberty Union Party.

This chart shows how many legislative nominees each political party has this year. This year, there is no Republican-Democratic contest in 2,281 of the 5,773 regularly-scheduled partisan legislative elections. Thus, in 39.5% of the races, votes have no choice unless a minor party or independent candidate is on the ballot.

In past years, the percentage of races with no Democratic-Republican contest has been: 2006 37.6%; 2004 38.7%; 2002 36.9%; 2000 40.6%; 1998 41.1%; 1996 32.7%; 1994 35.8%; 1992 32.8%; 1990 35.9%; 1988 36.6%.

`	# seats	Dem.	Rep.	Lib’t.	Green	Consti.	WkFam	other(1)	other(2)	indp.
Alas	50	47	40	1	0	0	0	1	0	2
Ariz	90	74	74	5	4	0	0	0	0	1
Ark	118	94	45	0	6	0	0	0	0	6
Cal	100	96	95	20	1	0	0	5	0	1
Colo	84	80	77	4	1	2	0	1	0	0
Ct	187	168	136	1	5	6	3	1	0	12
Del	51	47	38	0	0	0	0	0	0	0
Fla	140	101	105	0	5	1	0	1	0	10
Ga	236	133	158	0	0	0	0	0	0	2
Hi	35	35	33	0	0	0	0	1	0	0
Id	105	69	96	4	0	2	0	0	0	2
Ill	157	130	98	0	14	0	0	0	0	0
Ind	125	104	104	17	0	0	0	0	0	3
Iowa	125	113	108	2	1	0	0	0	0	7
Kan	165	133	141	18	0	0	0	4	0	0
Ky	119	92	64	1	0	1	0	0	0	4
Maine	186	184	165	0	9	0	0	0	0	9
Mass	200	188	48	0	1	0	0	0	0	20
Mich	110	110	101	32	7	9	0	0	0	3
Minn	134	134	134	0	3	0	0	4	0	2
Mo	180	153	126	10	0	8	0	0	0	4
Mont	125	114	110	2	0	9	0	0	0	2
Nev	52	48	50	6	0	24	0	0	0	1
N H	424	399	371	5	0	0	0	0	0	6
N Mex	112	88	69	0	0	0	0	0	0	1
N York	212	192	164	0	0	0	13	5	3	0
No C	170	135	121	20	0	0	0	0	0	1
No D	69	69	65	0	0	0	0	0	0	0
Ohio	115	99	105	4	1	0	0	0	0	4
Okla	125	96	96	1	0	0	0	0	0	3
Ore	75	67	46	3	1	0	0	1	0	0
Penn	228	179	168	5	4	2	0	0	0	7
R I	113	106	64	0	0	0	0	0	0	16
So C	170	100	123	1	1	3	0	0	0	1
So D	105	101	102	0	0	3	0	0	0	7
Tenn	115	80	80	1	0	0	0	0	0	15
Tex Te	165	121	121	96	0	0	0	0	0	0
Utah	90	85	90	8	0	41	0	0	0	0
Vt	180	156	124	2	0	1	0	1	1	20
Wash	124	114	99	1	1	0	0	0	0	3
W Va	117	108	74	0	2	1	0	1	0	1
Wis	115	104	88	5	0	0	0	0	0	6
Wyo	75	41	62	4	0	0	0	0	0	1
TOTAL	5,773	4,887	4,378	279	67	113	16	22	4	183

The states not mentioned do not have any partisan regularly-scheduled legislative elections this year.

Washington is treated as though it does have partisan legislative elections; candidates who "Prefer" a party are deemed to be nominees of such parties. If two candidates "prefer" the same party in a single district, that counts as one nominee.

Parties in the "Other(1)" column are: Alaska, Alaskan Independence; Cal., Peace & Freedom; Ct., Independent Party; Delaware, Independent Party; Fla., British Reform Sectarian; Hi., Independent Party; Mass., Socialist Workers; Minn., Independence Party; N.Y., Independence; Oregon, Independent Party; Pa., Reform; R.I., Socialist; S.C., United Citizens; Vt., Progressive. Parties in the "Other(2)" column are: Ct., Connecticut for Lieberman; Del., Blue Enigma; Mass., Veterans; N.Y., Conservative; Vt., Liberty Union.

Bob Barr, Libertarian: 94.6% of the voters will see his name on ballots. He is on in all jurisdictions except Connecticut, Louisiana, Maine, Oklahoma, West Virginia, and the District of Columbia. His label is "Libertarian" in all states except Alabama, South Dakota, and Tennessee. He has write-in status in D.C. and Maine.

Ralph Nader, independent: 85.2% of the voters will see his name on ballots. He is on in all jurisdictions except Georgia, Indiana, North Carolina, Oklahoma, and Texas. His label is "Independent" in most states. In California, Iowa, and Utah, it is "Peace and Freedom." In Colorado it is "unaffiliated; in Connecticut, Delaware, Hawaii, Maryland, and New Mexico it is "Independent Party"; in Florida it is "Ecology"; in Michigan it is "Natural Law"; in Nebraska and South Carolina it is "By petition"; in Ohio he has no label; in Oregon "Peace Party". He has write-in status everywhere he is not on the ballot, except in Oklahoma.

Cynthia McKinney, Green: 70.5% of the voters will see her name on ballots. She is on in all jurisdictions except Alabama, Alaska, Connecticut, Georgia, Idaho, Indiana, Kansas, Kentucky, Missouri, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Texas, Vermont, and Wyoming. Her label is whatever the Green Party’s normal label in each state is, except that her label is "independent" in Tennessee. She has write-in status in all the places she isn’t on the ballot, except for Oklahoma and South Dakota.

Chuck Baldwin, Constitution: 59.8% of the voters will see his name on ballots. He is on the ballot in all jurisdictions except Arizona, California, Connecticut, Georgia, Indiana, Maine, New Hampshire, New York, North Carolina, Oklahoma, Pennsylvania, and Texas. His label is Constitution, except that it is independent in Alabama and Tennessee; "Alaskan Independence" in Alaska; "Reform" in Kansas, "U.S. Taxpayers" in Michigan, "Nebraska Party" in Nebraska, "Independent American" in Nevada; and "Independent Green" in Virginia. He has write-in status everywhere he isn’t on the ballot except for North Carolina and Oklahoma.

Gloria La Riva, Party for Socialism and Liberation: 26.8% of the voters will see her name on ballots. She is on the ballot in Arkansas, Colorado, Florida, Iowa, Louisiana, New Jersey, New York, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Her label is "Socialism and Liberation", except that it is "Party For Socialism and Liberation" in Florida, Iowa, Utah, and Wisconsin. She did not file for write-in status in any state.

Socialist Workers Party: 25.0% of the voters will see either of the party’s two presidential candidates’ names on the ballot. Those two candidates are Roger Calero, who is not a citizen, and his stand-in, James Harris. The ballot label is always "Socialist Workers." Calero is on in Delaware, Minnesota, New Jersey, New York, and Vermont. Harris is on in Colorado, Florida, Iowa, Louisiana, and Washington. Harris is a qualified write-in candidate in California.

Brian Moore, Socialist: 21.5% of the voters will see his name on ballots. He is on in Colorado, Florida, Iowa, New Jersey, Ohio, Tennessee, Vermont, and Wisconsin. His label is "Socialist" except it is "independent" in Tennessee, and Liberty Union in Vermont. He filed for write-in status in Alaska, Connecticut, Illinois, Indiana, Kansas, Kentucky, Michigan, Minnesota, Montana, New York, North Carolina, Oregon, Texas, Utah, Virginia, Washington, and Wyoming.

Alan Keyes, America’s Independent Party: 18.1% of the voters will see his name on ballots. He is on in California (American Independent), Colorado (America’s Independent Party) and Florida (America’s Independent Party). He has write-in status in Kentucky, Ohio, Texas, and Utah.

Charles Jay, Boston Tea Party: 10.0% of the voters will see his name on ballots. He is on in Colorado, Florida, and Tennessee ("independent"). He has write-in status in Arizona, Montana, and Utah.

Gene Amondson, Prohibition: 9.6% of the voters will see his name on ballots. He is on in Colorado, Florida, and Louisiana. The label is always "Prohibition". He does not have write-in status anywhere.

Tom Stevens, Objectivist: 8.0% of the voters will see his name on ballots. He is on in Colorado and Florida. He does not have write-in status anywhere.

Richard Duncan, Independent: 4.6% of the voters will see his name on ballots. He is only on in Ohio.

John Joseph Polachek, New Party: 4.3% of the voters will see his name. He is only on in Illinois.

Jeffrey Boss, Vote Here Party: 3.0% of the voters will see his name. He is only on in New Jersey.

Jeffrey Wamboldt, We the People: 2.5% of the voters will see his name. He is only on in Wisconsin.

Ron Paul: 2.0% of the voters will see his name. He is on in Louisiana as "Louisiana Taxpayers" and in Montana as the Constitution party nominee. He has write-in status in California.

Jonathan Allen, HeartQuake ’08: 1.7% of the voters will see his name. He is only on in Colorado, and has write-in status in Arizona, Georgia, Montana, and Texas.

Bradford Lyttle, U.S. Pacifist: 1.7% of the voters will see his name. He is only on in Colorado.

Frank McEnulty, New American Independent: 1.7% of the voters will see his name. He is on in Colorado, as "unaffiliated."

Ted Weill, Reform Party. .9% of the voters will see his name. He is only on in Mississippi.

George Phillies: .6% of the voters will see his name. He is on in New Hampshire with the label "Libertarian."

Ralph Nader and Chuck Baldwin debated each other in Washington, D.C., on the evening of October 23. The debate was broadcast on C-SPAN 2. The debate was open to any presidential candidate on the ballot in states with enough electoral votes to win. Barack Obama and John McCain, of course, did not participate; neither did Bob Barr or Cynthia McKinney.

In September, Brian Moore, Gloria La Riva, and a few lesser-known presidential candidates debated each other in Nashville, Tennessee.

Vice-presidential candidates Matt Gonzalez, Wayne A. Root, and Darrell Castle, will debate each other in Las Vegas on Sunday, November 2.

Rock-the-Debates exerted a great deal of work during late 2007, and in the first half of 2008, catching leading major party presidential contenders while on the campaign trail, and asking if they would participate in a general election debate in which anyone on the ballot in enough states to win would be invited. Both Obama and McCain made vague promises to consider the idea, but of course they did not agree. Rock-the-Debates hopes to hold a conference in early 2009 to increase interest in this topic and get new ideas.

This year, only three presidential nominees (that is, people who actually ran in November) received federal campaign funds. Ralph Nader received $881,494 in primary season matching funds this year. John McCain and Barack Obama both rejected primary season matching funds. McCain accepted $84,103,800 in general election campaign funds, whereas Obama became the first major party presidential nominee in history to reject general election federal funds.

Major party members sometimes reject federal funds because candidates who accept them are subject to limits on how much they can spend.

On October 19, Sarah Palin said, "I believe that anybody that would try to thwart a fair and clean election is not following American principles because part of being an American is protecting and being able to rely on free and fair elections." No reporter followed up with a question about how she felt about the Republican attempt to remove Bob Barr from the Pennsylvania ballot.

On October 16, Cicero Booker, Independent/Working Familes Party nominee for Connecticut State Senate, 15^th district, received $85,000 in public funding.

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