SUMMARY OF RECENT BALLOT ACCESS ACTIVISM

Attempts to improve ballot access are underway in 25 states. This includes both lobbying, and lawsuits. Unfortunately, some hoped-for ballot access bills are not materializing.

Alabama: Rep. Cam Ward (R-Tuscaloosa) says he will introduce a bill to lower the number of signatures for minor parties and independent candidates. The legislature convenes February 3. Also, in the pending ballot access lawsuit, Shugart v Chapman, both sides have now filed briefs. The lawsuit challenges the number of signatures for an independent candidate for U.S. House.

Alaska: Rep. Max Gruenberg (D-Anchorage) says he is no longer willing to introduce a bill, easing the definition of "political party", because the state chair of the Alaska Libertarian Party recently published a letter to the editor of a large newspaper that implies the Alaska Libertarian Party favors a vote of the people on whether Alaska should secede.

Arizona: Rep. Matt Heinz (D-Tucson) says he will introduce a bill to delete the 1961 law that describes the "international Communistic conspiracy" and concludes (after two pages of a description of the Cold War) that therefore the Communist Party may not be on the ballot. That law was declared unconstitutional in 1973 but still sits in the statutes.

No one has introduced a bill in Arizona yet to ease the independent candidate petition deadline, which was declared unconstitutional last July. Arizona is appealing this decision to the U.S. Supreme Court. That Court will probably say in mid-February whether it will hear the case, which is now called Bennett v Nader. The deadline for introducing new bills is February 9.

The state chair of the Constitution Party is seeking a legislative sponsor for a bill to lower the number of signatures for a new party.

Arkansas: Rep. Richard Carroll (Green-No. Little Rock) has introduced a bill to ease the definition of "political party", from a group that polled 3% for Governor/President, to one that polled 3% for any statewide office. He has also introduced a bill to expand the petitioning period for a new party from 60 to 90 days. The bills don't have bill numbers yet because the bill-drafting office is still working on them.

California: the Libertarian Party is mulling over the idea of seeking a legislative sponsor for a bill to let the party nominate by convention. The party had similar bills in 1987 and 1994, but they did not pass.

Connecticut: the Libertarian Party will soon make a motion for summary judgment in the lawsuit Libertarian Party v Bysiewicz, pending in U.S. District Court. The case had originally been filed to place Bob Barr on the ballot. Now, it is about the state's cumbersome procedures for receiving and checking ballot access petitions. Each town seems to have its own standards for determining the validity of signatures. Also, since the state has its own statewide database of registered voters, the ancient custom of submitting petitions (for statewide office) to each town, instead of to the Secretary of State, seems to lack a state interest. No statewide petitions succeeded in Connecticut in 2008, except for the Ralph Nader petition.

District of Columbia: the Libertarian Party is about to file a lawsuit to require the Board of Elections to count write-ins received by Bob Barr for president last year. Barr filed as a declared write-in, and submitted the names of three qualified candidates for presidential elector, yet the D.C. Board feels that it doesn't need to tally write-ins, even for declared write-in candidates, despite a court order in 1975 that ordered the Board to do count such votes.

Georgia: both sides have submitted briefs in Coffield v Williams, the case in U.S. District Court that challenges the number of signatures required for an independent candidate for U.S. House. No such candidate has met the 5% petition hurdle since 1964. Furthermore, back in 1964, the signatures were not due until October, they were not checked and were presumed valid. Also, back then, Congressional district boundaries followed county boundaries, which made it easy for circulators to know which signers live in the relevant district.

Hawaii: Ralph Nader's lawsuit from 2004, contesting the number of signatures required for independent presidential candidates, is still pending in the 9^th circuit. Nader argues that it is irrational for the state to require six times as many signatures for a single independent candidate than for an entire new party. It is possible the legislature will lower the number of signatures for an independent presidential candidate, in order to settle the lawsuit.

Idaho: on January 20, a lawsuit was filed against a state law that makes it a crime for an out-of-state circulator to work in Idaho. The case is Daien v Ysursa, 1:09-cv-22. The plaintiff, Donald Daien, lives in Arizona and wanted to collect signatures for Ralph Nader in 2008 as a volunteer; also he wants to be able to do that work for similar candidates in the future.

Illinois: Senator Chris Lauzen will introduce a bill to let an unqualified party submit a single petition to qualify itself for all partisan office in the state. Then, if the petition succeeds, that party could nominate by convention. Illinois is one of eleven states with no procedure for a group to transform itself into a qualified party, before any particular election. Instead, all it has are petitions to qualify candidates, and only if the candidates poll enough votes does the group then become a "party."

Indiana: legislative rules say that no legislator can introduce a bill for the 2009 legislative session, unless it was submitted to the bill-drafting office by December 15, 2008. However, Senator Sue Landske has said she may introduce a bill to reduce the number of signatures in 2010.

Maine: Senator Peter Bowman (D-Kittery) will soon introduce a bill to provide that the names of qualified write-in candidates should be posted at polling stations. Last year, the Secretary of State had instructed town clerks not to post the list. In many states, the list of qualified write-in candidates is posted in each polling place.

The bill may also say that when a candidate complies with the legal deadline for submitting petitions to the town clerk, the petitions must either be checked, or the petitions are presumed valid. Last year an independent candidate for U.S. Senate, Laurie Dobson, turned in signatures on time, but because the town clerks didn't have time to check her signatures, she was kept off the ballot.

Two lawsuits filed in 2008 over Maine's petition-checking procedures are still alive. They are Libertarian Party of Maine v Dunlap and Hoffman v Dunlap. In the Libertarian case, discovery is continuing. In the Hoffman case, the judge is expected to rule soon on whether the case should be dismissed on grounds that an earlier unfavorable State Supreme Court case preempts the federal case.

Missouri: SB 70, the bill to delete the requirement that a petition to create a new party must include the party's candidate for president, has been assigned to the Senate Financial, Government Operations, and Elections Committee.

Montana: briefs are due by mid-June in Kelly v Johnson, the lawsuit challenging the March petition deadline for non-presidential independent candidates. The ACLU tried to get a bill introduced in this year's legislative session moving the deadline to a more reasonable month, but could not find any legislator to sponsor the bill.

Nebraska: the state Election Director was unable to find a legislative sponsor for a bill to improve ballot access for minor parties. The bill would have changed the definition of "party" so that if it met the vote test, its qualified status would then be extended for two more elections instead of just one more election. The 5% vote test is fairly easy for minor parties to meet in midterm years, but difficult to meet in presidential years.

New Hampshire: discovery will soon begin in Libertarian Party v Gardner, over whether the Constitution requires a state to permit presidential substitution. The basis is that all states permit qualified parties to substitute their presidential candidates, so each state ought to treat unqualified parties the same way. No bill was introduced in this year's legislative session to improve ballot access.

North Carolina: Discovery is proceeding in Greene v Bartlett (the case against the 4% petition requirement for independents for U.S. House). In Libertarian Party v State Bd. of Elections, the plaintiffs have filed their brief in the State Appeals Court. Soon, Senator Jim Jacumin will introduce a bill to lower the number of signatures for minor parties and statewide independents to 1,000 signatures; district independents to 250 signatures; and eliminate the need for declared write-in candidates to file any petition at all.

North Dakota: the Constitution Party was unable to find a sponsor for a bill to repeal the law that requires candidates to poll a minimum number of votes in the primary, and the deadline for new bills has passed. The problem was that Secretary of State Al Jaeger opposes any change. Current law requires a legislative candidate to receive about 120 votes in the primary. Minor parties don't have that many voters in their primaries. North Dakota legislative districts are so small, they only have about 4,000 primary voters in each district. North Dakota is the only state that requires ballot-listed primary candidates to not only defeat all their opponents, but meet a minimum vote test.

Ohio: the new legislature convened on January 5, but there is still no bill to replace the old, unconstitutional procedure for new and minor parties to get on the ballot. The Secretary of State recently ruled that all the parties that were put on the ballot in 2008 are still considered ballot-qualified, at least for the purposes of participating in the few partisan local elections the state has in 2009.

Oklahoma: bills to lower the number of signatures for a new party to 5,000 are pending in both houses of the legislature. They are SB 359 and HB 1072. The legislature convenes February 2. Discovery is proceeding in the federal lawsuit against the independent presidential petition, Barr v Zeriax.

Pennsylvania: the ballot access improvement bill still has not been introduced, but in the Senate the chief sponsor, Senator Mike Folmer, has found 6 co-sponsors.

Rhode Island: Senator David Bates says he will introduce his bill, easing the petition requirement for new parties from 5% of the last vote, to 1%, as soon as the ACLU lobbyist finishes reviewing the proposal.

Tennessee: over a year ago, the Libertarian, Green, and Constitution Parties filed a lawsuit against the state's definition of "political party", which is so severe, only the Democrats and Republicans have qualified since 1972. Six months ago the state submitted Interrogatories to each of the three plaintiff parties, asking a great many questions about those parties. The parties answered them, but the state has done nothing since. The attorney for the parties will soon ask for summary judgment if the state continues to be dormant.

Utah: HB 56 deletes the requirement that independent presidential candidates must file their declaration of candidacy, in person. The bill also restores a deadline for independent presidential candidates to file. The bill sets that deadline as August 15. The old deadline was accidentally repealed in 1994, so ever since, the state has been accepting petitions up until September 1.

Washington: the Libertarian Party recently found a new attorney for the lawsuit against the "top-two" system, so that case can proceed in U.S. District Court. The former attorney did a very good job, but he is no longer willing to work for very little pay. The case is called Washington State Republican Party v Logan. However, the remaining issues in the case are mostly issues that relate to the Libertarian Party, not the two major parties.

West Virginia: the legislature convenes on February 11, and Delegate Barbara Fleischauer's bill to lower the number of signatures from 2% of the last vote, to 1%, will be introduced then. The bill will also move the non-presidential petition deadline from May to August.

On January 21, the 10^th circuit refused Oklahoma's request for a rehearing in Yes on Term Limits v Savage. On January 22, Oklahoma's Attorney General dropped charges against Paul Jacob, Susan Johnson, and Rick Carpenter. They had faced 10 years in prison, for allegedly conspiring to bring out-of-state circulators into Oklahoma to circulate an initiative petition.

Also on January 22, the Attorney General said he will not appeal Yes on Term Limits v Savage to the U.S. Supreme Court.

Oklahoma's brief to the 10^th circuit, asking for a rehearing, argued, "It is the circulator who ascertains that signers are, in fact, who they say they are and that they are registered to vote…Oklahoma has long viewed the circulator as serving a legislative role within the State…The Secretary of State does not independently verify signatures. Oklahoma law assigns these duties to the circulator."

This argument is not convincing. Circulators do not carry the list of registered voters. The petition for rehearing was submitted on January 5, and was rejected 16 days later, a rather quick response from the Court.

On January 21, Free & Equal, a new organization, held a press conference in Springfield, Illinois, to announce its founding. Christina Tobin is the Founder and Chairman of the Board, and Christopher Thrasher is the Executive Director. The group will lobby for better ballot access, and help with ballot access lawsuits, and one arm of the organization will conduct petition drives for independent candidates and minor parties. See the webpage www.freeandequal.org.

Tobin is the daughter of James Tobin, who was the Libertarian Party candidate for Governor of Illinois in 1998. Tobin was kept off the ballot by a challenge to the Libertarian statewide petition, even though the petition-checking process showed that he had enough valid signatures and was otherwise qualified. Tobin, a teen-ager at the time, got very interested in ballot access as a result. In 2008 she was Ralph Nader's national ballot access coordinator. She also arranged the only televised minor party and independent presidential and vice-presidential debates that took place in 2008.

Thrasher was Deputy National Campaign Coordinator for Mike Gravel's campaign for the Libertarian Party nomination.

Very recently, Tobin persuaded Illinois Senator Chris Lauzen to introduce a ballot access improvement bill. Thrasher is lobbying in North Carolina.

Free and Equal has already obtained 501(c)(4) status, and has a Facebook page.

Federal law: on January 9, the U.S. Supreme Court agreed to hear NAMUDNO v Mukasey, 08-322, the case over whether Section 5 of the Voting Rights Act is constitutional. Section 5 requires certain states to get permission from the U.S. Justice Department before changing any election laws..

California: on January 7, backers of Proposition 8 (to eliminate same-sex marriage) filed a federal lawsuit to keep the identity of small contributors from being made public. ProtectMarriage.com v Bowen, 2:09-cv-58 (eastern district). The case depends on a 1982 U.S. Supreme Court decision that said the Socialist Workers Party need not make public the names of people who contribute to the party's campaigns, since those people are likely to be harassed.

Illinois: on January 8, the 7^th circuit refused to rehear Stevo v Keith, the case over the number of signatures for an independent U.S. House candidate. If money can be raised, Stevo plans to ask for U.S. Supreme Court review. The 7^th circuit had taken almost three months thinking about whether to grant the rehearing.

Indiana: on October 8, 2008, the 7^th circuit handed down a decision in Kozuszek v Brewer, 546 F 3d 485. The issue was whether two particular voters had been unlawfully denied the right to vote in November 2003. Although the Court ruled against the two voters, it rebutted a remark that the U.S. District Court had made. The lower court had said that since the November 2003 election hadn't had any close contests, it didn't really matter if the two voters were unlawfully kept from voting. The 7^th circuit said, "An official who willfully interferes with an individual's ability to express his or her political preferences at the ballot box violates the Constitution."

Minnesota: on January 13, a state court ruled that nothing in the State Constitution bars Instant-Runoff Voting. Minnesota Voters Alliance v City of Minneapolis, 27-cv-08-15. This should make it possible for Minneapolis to implement IRV for its own city elections.

West Virginia: on January 16, a U.S. District Court cleared away procedural objections raised by the state, in Constitution Party v Jezioro, 2:08-cv-61. The case will now go to trial. The issue was whether state park officials unlawfully prevented Constitution Party circulators from working in a state park last year.

`	Libertarian	Wrk Fam	Green	Constitut.	Indpndnce	Indp Pty	Conserv	other(1)	other(2)
Alaska	812	0	0	0	0	0	0	276	0
Arizona	18,047	0	13,304	0	0	0	0	0	0
Arkansas	0	0	8,996	0	0	0	0	0	0
Calif.	171,324	0	6,505	0	0	0	0	33,212	0
Colorado	3,096	0	1,016	2,415	0	0	0	0	0
Conn.	0	29,545	2,311	1,783	0	8,323	0	3,097	0
Del.	243	431	0	0	0	642	0	346	0
Florida	0	0	10,713	0	0	0	0	18,957	0
Georgia	0	0	0	0	0	0	0	0	0
Hawaii	0	0	0	0	0	0	0	0	0
Idaho	9,260	0	0	6,950	0	0	0	0	0
Illinois	0	0	39,758	0	0	0	0	0	0
Indiana	26,655	0	0	0	0	0	0	0	0
Iowa	3,623	0	1,889	0	0	0	0	0	0
Kansas	12,104	0	0	0	0	0	0	0	0
Kentucky	2,754	0	0	0	0	0	0	0	0
Maine	0	0	5,777	0	0	0	0	0	0
Mass.	0	0	0	0	0	0	0	0	0
Michigan	41,637	0	8,403	10,399	0	0	0	0	0
Minn.	0	0	6,648	0	14,601	0	0	0	0
Missouri	9,448	0	0	8,573	0	0	0	0	0
Montana	422	0	0	1,623	0	0	0	0	0
Nevada	17,991	0	0	33,104	0	0	0	0	0
N. Hamp.	5,853	0	0	0	0	0	0	0	0
N. Mex.	0	0	0	0	0	0	0	0	0
N. York	0	150,454	0	0	217,977	0	179,967	0	0
No. Car.	38,740	0	0	0	0	0	0	0	0
No. Dak.	0	0	0	0	0	0	0	0	0
Ohio	8,984	0	0	0	0	0	0	0	0
Okla.	1,161	0	0	0	0	0	0	0	0
Oregon	5,597	0	4,227	709	0	27,027	0	0	0
Penn.	6,522	0	11,366	6,963	0	0	0	4,736	0
R.I.	0	0	0	0	0	0	0	0	0
S.Car.	1,335	0	1,012	2,883	0	0	0	0	0
S.Dak.	0	0	0	317	0	0	0	0	0
Tenn.	2,695	0	0	0	0	0	0	0	0
Texas	318,747	0	0	0	0	0	0	0	0
Utah	2,498	0	0	29,373	0	0	0	0	0
Vermont	513	0	0	0	0	0	0	13,774	72
Wash.	5,017	0	13,683	0	0	0	0	0	0
W.Va.	0	0	5,606	917	0	0	0	0	0
Wisc.	7,627	0	0	0	0	0	0	0	0
Wyoming	1,896	0	0	0	0	0	0	0	0
TOTAL	724,601	180,430	141,215	106,009	232,578	35,992	179,967	74,398	72

The Green Party elected one representative in Arkansas, Richard Carroll. Five other Green Party nominees for state legislature outpolled their Republican opponents, although these Greens lost to their Democratic opponents. These races included four in Maine and one in Minnesota.

The Libertarian Party's best legislative showing in the nation was one of its nominees in New Hampshire: Lisa Wilber polled 2,242 votes. One of the Democratic nominees in the same district polled 3,516; however the Republican nominees polled more.

See the notes at the bottom of the chart below to know which parties are listed in the "other" column, and for abbreviations.

`	Libertarian	Wrk Fam	Constitn	Green	Indpndnce	Indp Pty	Conserv	other(1)	other(2)
Alaska	0	0	0	0	0	0	0	0	0
Arizona	5,856	0	0	9,167	0	0	0	0	0
Arkansas	0	0	0	0	0	0	0	0	0
Calif.	94,132	0	0	0	0	0	0	26,996	0
Colorado	2,603	0	0	0	0	0	0	0	0
Conn.	700	55,140	0	3,766	0	11,924	0	0	0
Del.	0	0	0	0	0	0	0	0	0
Florida	0	0	31,586	8,528	0	0	0	0	0
Georgia	0	0	0	0	0	0	0	0	0
Hawaii	0	0	0	0	0	3,653	0	0	0
Idaho	0	0	0	0	0	0	0	0	0
Illinois	0	0	0	19,818	0	0	0	0	0
Indiana	9,093	0	0	0	0	0	0	0	0
Iowa	0	0	0	0	0	0	0	0	0
Kansas	6,302	0	0	0	0	0	0	0	0
Kentucky	0	0	1,478	0	0	0	0	0	0
Maine	0	0	0	9,315	0	0	0	0	0
Mass.	0	0	0	3,336	0	0	0	3,080	0
Missouri	15,772	0		0	0	0	0	0	0
Montana	0	0	5,100	0	0	0	0	0	0
Nebraska	0	0	0	0	0	0	0	0	0
Nevada	4,754	0	22,474	0	0	0	0	0	0
N. Hamp.	0	0	0	0	0	0	0	0	0
N. Mex.	0	0	0	0	0	0	0	0	0
N. York	0	135,519	0	0	242,068	0	222,401	0	0
No. Car.	35,359	0	0	0	0	0	0	0	0
No. Dak.	0	0	0	0	0	0	0	0	0
Ohio	9,331	0	0	8,538	0	0	0	0	0
Okla.	0	0	0	0	0	0	0	0	0
Oregon	0	0	0	0	0	0	0	0	0
Penn.	13,987	0	0	0	0	0	0	0	0
R.I.	0	0	0	0	0	0	0	2,494	0
S.Car.	0	0	5,686	0	0	0	0	3,318	0
S.Dak.	0	0	868	0	0	0	0	0	0
Tenn.	0	0	0	0	0	0	0	0	0
Texas	185,537	0	0	0	0	0	0	0	0
Utah	0	0	9,110	0	0	0	0	0	0
Vermont	1,126	0	2,690	0	0	0	0	3,487	0
Wash.	0	0	0	0	0	0	0	0	0
W.Va.	0	0	0	2,682	0	0	0	0	0
Wisc.	0	0	0	0	0	0	0	0	0
Wyoming	0	0	0	0	0	0	0	0	0
TOTAL	384,552	190,659	78,992	65,150	242,068	15,577	222,401	39,375	0

"Wrk Fam" means "Working Families"; "Indpndnce" means "Independence"; "Indp Party" means Independent Party.

Parties in the "other(1)" column, on both page 4 and 5, are: Alaska, Alaskan Independence; California, Peace & Freedom; Connecticut, Ct. for Lieberman Party; Delaware, Blue Enigma Party; Florida, British Reformed Sectarian; Massachusetts, Soc. Workers; New York, Conservative; Pennsylvania, Reform; Rhode Island, Socialist; South Carolina, United Citizens; Vermont, Progressive.

The only party in the "other(2)" column is: Vermont, Liberty Union. A Veterans Party candidate had qualified for the Massachusetts legislature, but withdrew and did not appear on the ballot.

After every presidential election, the Federal Election Commission tallies the popular vote for president. On January 22, the FEC released its tally for the recent election. It shows an unusually high number of miscellaneous write-ins for president.

In 2008, even though only seventeen states tallied the number of miscellaneous write-ins cast for president, the FEC found 112,554 such write-ins. Most states only tally the number of write-in votes cast for declared write-in candidates, and therefore the true number was probably three times as high. The FEC miscellaneous write-in total also includes the few write-ins cast for declared write-in candidates who were not on the ballot in any state. The FEC tallies separate figures for each presidential candidate who was on the ballot in even one state (along with all that candidate's known write-ins). But the FEC does not make a separate tally for the handful of people who file as declared write-in candidates and don't appear on any state's ballot. They get lumped in with the write-ins for people who didn't file as declared write-in candidates.

By comparison with 2008, in 2004 the FEC only found 37,240 miscellaneous write-ins; and in 2000 only 20,767. A few states took the trouble to tally the write-ins for people who had not filed as declared write-ins. From that limited data, it is clear that Hillary Clinton and Ron Paul got the bulk of the miscellaneous write-ins.

The FEC's totals for candidates who were on the ballot in at least one state are: Obama: 69,456,897; McCain 59,934,814; Nader 738,475; Barr 523,686; Baldwin 199,314; McKinney 161,603, Keyes 47,694; Paul 42,426; La Riva 6,808; Moore 6,528; Calero 5,127; Duncan 3,902; Harris 2,424; Jay 2,422; Polachek 1,149; McEnulty 828; Wamboldt 764; Stevens 755; Amondson 653; Boss 639; Phillies 531; Weill 481; Allen 477; Lyttle 110.

There were more presidential candidates on the ballot in at least one state in 2008 than in any other election in history, except that 1992 also had 23 candidates.

The FEC will not count write-ins for particular candidates if those write-ins were not tallied by the state. Therefore, the FEC tabulation includes Pennsylvania write-ins for Chuck Baldwin, but no write-ins for Cynthia McKinney. Pennsylvania arbitrarily tallied write-ins for Baldwin but not for McKinney, even though McKinney had filed a list of presidential elector candidates and had asked Pennsylvania for a tally. Pennsylvania will probably be sued over this sometime in February.

Alabama's Secretary of State's office posted write-ins tabulated by some counties on the state web page, but that office did not tabulate a state tally for Cynthia McKinney or any other write-in candidate. Therefore, the FEC refused to include any Alabama write-ins for McKinney or any other particular candidate. The FEC only accepts tallies that were done by state elections offices, not county offices.

See www.fec.gov/pubrec/fe2008/2008presgeresults.pdf for a state-by-state breakdown of the presidential vote, and the addresses and party labels of each candidate.

The Socialist Labor Party recently closed its national office in California, and shipped historical records to several universities. The SLP is the oldest socialist party in the U.S. It has not run candidates for partisan public office since 1981. It has been continuing to publish a bi-monthly newspaper, The People, and hopes that the paper can continue to be published.

The Coalition for Free and Open Elections (COFOE) holds its annual board meeting on February 1 in New York city. A report on the meeting will be in the next B.A.N. COFOE has existed since 1985 and is a loose coalition of the nation's nationally-organized minor parties, as well as organizations that are interested in election law problems for independent and minor party voters and candidates, including the Committee for a Unified Independent Party (CUIP).

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