MAINE EASES LAW ON HOW A PARTY REMAINS ON BALLOT

On June 17, Maine Governor John Balducci signed HB 1041. It eliminates the 5% vote test for a party to stay on the ballot. Instead, a party stays on the ballot if it has 10,000 registrants who voted in the last statewide general election. The bill does not alter how a group becomes a qualified party, so the only immediate effect is that the Green Party (one of the three qualified parties) need not worry about polling 5% for Governor in 2010. The Green Party has about 31,000 registrants, three-fourths of whom usually vote in November.

The Green Party of Maine tried very hard to pass a similar bill in 2005. That bill, HB 329, actually passed both houses of the legislature, but then it was tabled to see what impact it would have on the budget, and never taken from the table, so it was never sent to the Governor. HB 329 had required a party to have registration of 1%. The new bill that just passed is very similar; in Maine nowadays, 10,000 registrants works out to 1.06% of the number of registered voters.

Another attempt to ease the law had been made in 2007, by the Working Families Party. But the 2007 bill didn't pass either, even though the House Majority Leader sponsored it.

The 2009 bill succeeded because Democratic legislators would really rather that the Green Party not run anyone for Governor. Also, legislators are aware that Maine has budget problems, and the public funding program will save money if no Green runs for Governor. When Greens run for Governor in Maine, they always succeed in getting public funding, which is one reason why they have polled over 5% in each of the last four gubernatorial elections.

Notwithstanding hopes of the major parties, it is quite likely that Lynne Williams, an attorney, will run for Governor in 2010 as a Green.

The new law continues a trend, in which laws are changing to let a party stay on the ballot even if it doesn't run for statewide office. States in which a party can remain qualified, regardless of how many votes it polled in a previous election, include these 16 states: Alaska, Arizona, California, Colorado, Delaware, Florida, Idaho, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Nevada, Oregon, South Carolina, and Vermont. Some of these states have alternate tests; the party stays on either if it polls a certain vote, or if it has a certain number of registrants.

Eliminating mandatory vote tests for statewide office frees up minor parties to concentrate on local partisan offices and legislative seats. Minor parties have won partisan city or county elections, or legislative seats, in 30 states since 1955 (Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and Wisconsin).

The new law may some day be expanded to say that a group that has 10,000 registered members becomes qualified. Although the new law does not do that, if a group were to obtain 10,000 registrants, it would be in a strong position to sue for recognition. Maine keeps a tally of the number of registrants in an unqualified party, if that unqualified party files a form saying that it intends to qualify by petition. If an unqualified party had 10,000 registrants who voted in a recent election, it would be difficult for the state to explain why that group should not be recognized. In Williams v Rhodes the U.S. Supreme Court said that states cannot discriminate against new parties, relative to old parties.

On May 29, U.S. District Court William E. Smith, a Bush Jr. appointee, ruled that Rhode Island may not prevent a group from starting to circulate its petition for qualified party status before January 1 of even-numbered years. This is only the second winning precedent on whether states may forbid such petitions to circulate in odd years. The first had been won in Arkansas in 2001, by the Green Party.

The Rhode Island case was won by the Moderate Party. The case is Block v Mollis, 09-47. The key to the decision is that there really is no state interest in stopping such petitions from circulating in odd years. It is entirely rational for groups to circulate petitions for party status in odd years. Paid circulators have lower rates in odd years, because there is less demand for their services in odd years. Also, the sooner a group becomes a qualified party, the sooner it can attract high-qualify candidates, and the sooner it can build up the number of voters who register into that party. The list of people who register into a party is very useful.

On June 24, the state announced that it will not appeal the decision.

The Moderate Party is only organized in Rhode Island. It started circulating its petition three days after the decision, and already has approximately 2,000 signatures. It needs 23,589 valid signatures by August 1, 2010. If it gets enough valid signatures by June 1, 2010, it will nominate by primary; if it gets them by August 1, 2010, it will nominate by convention. See its webpage at www.moderate-ri.org. Conceivably, former U.S. Senator Lincoln Chaffee might join the party. He was a Republican while in the Senate, but is now registered as an independent.

Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny, by Theresa Amato. Hard cover, The New Press, N.Y., 2009, 379 pages.

If you believe that election laws should treat all voters equally, and you desire to be active in working toward that goal, read this book. There have been other excellent books that document U.S. discrimination against voters who desire to vote for minor party or independent candidates, but this book is the most engaging. It is persuasive partly because the author is such a skilled writer; partly because she has the legal credentials to master the field; and partly because she was on the inside in the 2004 presidential election, the only election in U.S. history when a presidential candidate with significant nationwide support was kept off the ballots used by as many as 50% of the voters.

The author was Ralph Nader's campaign manager in 2000 and 2004. She is an attorney and a former law clerk to a federal judge, and has traveled to many foreign countries and learned a great deal about their elections. She is well-versed in history and political science. The book opens with an eye-witness account of Haiti's historic 1990 election, in which Jean-Bertrand Aristide was elected, a sharp departure from the Haitian status quo.

However, the book is 99.9% about U.S. elections. Two quotes from the book are: (1) "On many of our greatest national problems, we are not even at step one because members of neither major party will expend the political capital to recognize or discuss the full range of issues and solutions during our elections, much less between them." (2) (quoting Ralph Waldo Emerson) "Sometimes a scream is better than a thesis."

Parts of the book are funny, and parts are infuriating, particularly the parts on how certain state, and party, officials maneuvered to prevent voters from voting for Ralph Nader in 2004.

The first half of the book is about ballot access; the second half is about other problems, involving debates, how the major media behave, campaign finance laws and regulations, problems counting votes accurately, and the problem that certain voters who are adult citizens may not vote at all, or that their votes don't get counted. Amato anticipates why some readers might not initially agree with her, and she responds to their attitudes persuasively.

Books on ballot access often overlook the problem that write-in votes may be forbidden, or not counted, but Amato covers that subject very well.

Amato closes the book with a wide-ranging set of recommendations for change. Not every reader will agree with all of those recommendations. Some of her recommendations are on subjects not covered extensively in the book. On ballot access (which, of course, is fully covered in the book), she recommends a federal ballot access law, similar to that introduced repeatedly in Congress during the last 25 years by John Conyers, Tim Penny and Ron Paul.

The June 1 B.A.N. said that the Oklahoma ballot access decision Barr v Zeriax is being appealed to the 10^th circuit. However, at the last minute, the Oklahoma plaintiffs decided not to appeal, because the lobbyist for the ballot access bill advises that if legislators know a lawsuit is pending, they will wait for the outcome of the lawsuit instead of taking action. The bill to ease ballot access, HB 1072, passed both houses earlier this year. The bill is not through the legislature because it needs action by a conference committee. Oklahoma has two-year sessions, so the bill could move ahead in January 2010.

On June 5, Maine Governor John Baldacci signed LD 1169, which makes it easier to cast a write-in vote by removing the requirement that the voter write-in the candidate's town.

Arizona: SB 1091, setting the independent presidential petition deadline in early September, and making it legal for out-of-state circulators to work on independent presidential petitions, passed the State Senate on June 22. Attempts are being made to expand the bill so that it also legalizes out-of-state circulators for other types of petition. SB 1091 is in response to the 2008 winning lawsuit Nader v Brewer.

D.C.: on June 16, City Councilmember Mary Cheh introduced B18-345, a bill making many revisions in the District of Columbia's election laws. The bill makes ballot access worse by giving the D.C. Board of Elections authority to impose "reasonable" filing fees. Logically, if the District wishes to use filing fees, the bill should say that candidates who pay a filing fee should not be required to submit a petition. Efforts are being made to get that idea put into the bill.

Illinois: HB 723, making it more difficult for qualified parties to nominate someone after the February primary is over, was passed by the legislature on May 28. The ballot-qualified Green Party hopes to persuade Governor Pat Quinn to veto the bill. Existing law lets party committees nominate someone if the primary didn't produce a nominee. The bill retains this right but requires a petition for each such nominee. There is no state interest in such a petition. It is rational to require a candidate seeking a place on a primary ballot to petition, to keep the primary ballot uncluttered; but that logic doesn't apply to committee nominations.

Texas: on June 20, Texas Governor Rick Perry signed HB 1193. It lets relaxes the deadline for qualified parties to certify their presidential candidates to the state, a deadline both major parties failed to meet in 2008.

Nevada: on May 28, Governor Jim Gibbons signed SB 162, which moves the primary from August to June. It also moves the non-presidential independent deadline from May to February.

Better Parties, Better Government, a Realistic Program for Campaign Finance Reform, by Peter J. Wallison and Joel M. Gora. Paperback, 172 pages, The AEI Press, 2009.

Peter Wallison is a scholar at the American Enterprise Institute and Joel Gora is a former legal counsel to the ACLU. They advocate a repeal of federal campaign finance laws that restrict how much money political parties may spend on campaigns for their own candidates, and also how much money individuals may give to parties. They take a libertarian approach to campaign finance law.

Their arguments are easy to understand. They say, "If campaign finance restrictions on parties are eliminated, we expect that the parties will become the principle financing sources for their candidates."

Also, "If we really want to protect candidates and officeholders from corruption or the appearance of corruption we could construct a system of campaign finance that did not put candidates and officeholders in the position of supplicants. Instead – assuming that we reject the idea of a government-financed campaign – we would insist that most financing come from a group that meets 3 tests: it has a strong incentive to support candidates, it collects funds from so many different sources that no one source could reasonably be viewed as controlling, and its purposes are broadly related to the interests of the public at large and not any narrower or special interest. The one institution that meets these tests is the political party."

The U.S. Supreme Court has upheld both the law that limits how much money individuals can give to political parties, and the law that limits how much money the national committee of a political party can spend on its federal candidates (parties can only spend unlimited amounts of money on behalf of their candidates if they don't coordinate with that candidate, which is very impractical).

Therefore, the purpose of the book is to rebut the U.S. Supreme Court decisions that upheld limits on parties: FEC v Colorado Republican Party, 533 U.S. 431 (2001) and McConnell v FEC, 540 U.S. 93 (2003). Both were 5-4 decisions.

The book would have more appeal to a wider audience if the authors had been willing to acknowledge the existence of parties other than the Democratic and Republican Parties, and of independent candidates. The authors constantly refer to "the parties" instead of "the major parties" when they are referring only to the Democratic and Republican Parties. For example, page 122 says, "Given their essential contributions to a functioning democracy, it is understandable that scholars and others worry about the continued survival of the political parties in the United States. A CBS News poll in June 2007, for example, found that 53% of Americans thought there should be a third party ‘to compete with the Democratic and Republican Parties.' This suggests that rather than worrying about whether the two parties will become too powerful – the result, perhaps, of giving them too much power to finance their candidates – the real question is whether their continued decline will deprive our democracy of some elements essential to its effective operation."

"The weakening of the political parties in the United States since the Progressive Era should be a matter of concern. The two-party system in the United States must be made more relevant to the American people so that the two parties regain the confidence and loyalty of the voters."

The authors thus cripple their argument by seeming to base the validity of their thesis on the need for voters to have more faith in the Democratic and Republican Parties. At a time when polls show that only 22% of the electorate identifies with the Republican Party, and only 37% with the Democratic Party, that is a losing argument. The authors should have made a pro-political party argument with seeming to endorse the Democratic and Republican Parties.

The federal campaign finance laws that restrict political parties are arguably more harmful to the nation's minor parties, and any parties that may come into existence in the future, than they are to the Democratic and Republican Parties.

Other statements that will make many readers grit their teeth are: "The choice of a president is binary – that is, there are generally two candidates" (page 129) and "If our government functions effectively with only two parties, then each of them has to include within it a huge number of special interests" (page 130). Even the history in the book is skewed. A brief discussion of the 1912 presidential election on page 117 implies that the Progressive Party was not a party, although it placed second in the presidential election, ran candidates for the U.S. House in 56% of the districts and elected nine of them, and elected state legislators in 30 states.

Arizona voters passed an initiative for public funding of candidates for state office in 1998. The law does not discriminate for or against any political parties. Any candidate (regardless of partisan affiliation) who collects enough small donations is entitled to public funding. Money for the program comes from a surcharge on criminal and traffic fines, plus a voluntary donation on state income tax forms.

On June 22, the Arizona Senate passed SCR 1025 by 17-12. It would put a measure on the November 2010 ballot asking the voters if they wish to repeal the program. The vote was party line, with Republicans supporting the bill and Democrats opposed.

The Arizona law is also under attack in U.S. District Court, in McComish v Brewer, cv-08-1550. The case challenges the provision of the law that gives extra funding to candidates using public funding, if that candidate's opponent is using private funding that exceeds the normal public funding grant. Briefs are being filed.

On June 3, U.S. District Court Judge John P. Bailey, a Bush Jr. appointee, ruled that a West Virginia regulation that gives state parks officials unbridled discretion to exclude petitioners from state parks is unconstitutional. Although requiring a permit is not per se unconstitutional, state officials cannot deny such permits merely because they don't approve of petitioning, or because they may not approve of the group that wants to petition. Constitution Party of West Virginia v Jezioro, 2:08-cv-61. The state is not appealing.

National: on June 9, the U.S. Court of Appeals, D.C. Circuit, ruled that Ralph Nader filed his lawsuit against the Democratic National Committee a few months too late, and that the Statute of Limitations requires that he should have filed it by mid-2007 instead of late 2007. The Statute allows such torts three years after the plaintiff discovers, or should have discovered, that he was being injured. Nader had sued the Democratic National Committee for its behavior in 2004. The Statue of Limitations is very ambiguous, especially in cases like this one.

California: on June 17, a California State Appeals Court agreed with a lower court, that when electronic vote-counting machines without a paper trail are used, and someone requests a recount, the government must disclose full information about that vote-counting machine. Specifically, it must provide all audit logs, all redundantly stored vote data, the complete chain of custody for the machine, and all logic and accuracy vote tests. Americans for Safe Access v County of Alameda, A121390. The case had arisen in 2004 over a very close vote in Berkeley on a local initiative. The result is somewhat moot in California, since all California machines now have a paper trail. But the precedent may be useful in other states.

Florida: on June 17, the Florida Supreme Court ruled 4-2 that a 2007 law letting signers remove their names from initiative petitions, even after the initiative has already submitted its petitions, violates the State Constitution. Florida Hometown Democracy v Browning, SC08-884. The Court only issued a two-page order announcing its conclusion, and will explain its reasoning soon.

Minnesota: on June 11, the Minnesota Supreme Court ruled that nothing in the State Constitution stops any city from using Instant Runoff Voting for its own elections. Minnesota Voters Alliance v City of Minneapolis, A09-182. As a result, Minneapolis will use IRV this year for its own city elections, and St. Paul will let the voters vote on whether to use IRV.

Texas: Congressman Dennis Kucinich will not appeal Kucinich v Texas Democratic Party to the U.S. Supreme Court. He had lost the case early this year in the 5^th circuit. The issue is whether the party may keep people off its presidential primary ballot if they refuse to sign a pledge to "fully support" the party's nominee. The pledge must be signed by January 2 of the election year, before anyone can even know who the nominee will be. The 5^th circuit upheld the oath because it isn't binding, except in a moral sense.

Federal law: on June 22, the U.S. Supreme Court issued its opinion on Section 5 of the Voting Rights Act. That law, in existence since 1965, requires certain states and certain parts of other states to get permission from the Justice Department before changing any election laws. The Court ducked the issue of whether that part of the Act is constitutional, but ruled that the Texas special district that brought the case is free to "bail out." A "bailout" is part of the law and it permits a covered jurisdiction to be exempt from preclearance, if it can show that no one has complained about its voting rights policies in the last 10 years. The Act had been ambiguous about whether small subdivisions of government can use the "bailout." Northwest Austin Municipal Utility Dist.v Holder, 08-322.

On June 5, Oklahoma Governor Brad Henry vetoed HB 2246, which would have expanded the petitioning period for initiative petitions from 90 days to one year. As reported in the June 1 B.A.N., earlier he had signed another bill to ease the process for initiatives. That other bill, SB 800, allows an initiative to be circulated after all challenges to the validity of the substance of the initiative have been settled.

Governor Henry said he vetoed HB 2246 because the bill had other provisions that made it a crime for initiative opponents to harass circulators. Another bill is pending in the session that would expand the petitioning period. That bill might pass in 2010.

The chart below lists each state, and identifies which independent or minor party candidate for U.S. House successfully overcame that state's hardest candidate-petition requirement.

An asterisk means that the state has lowered its petition requirement for U.S. House since that candidate met that particular hurdle. A double asterisk means that the state has increased the requirement since the year mentioned.

The chart illustrates how rarely any state has ever required as many as 10,000 signatures. Only five times has anyone overcome a hurdle greater than 10,000 signatures (two in California, one in Florida, one in Ohio, and one in Montana). There are two states, Georgia and North Carolina, which require more than 20,000 signatures in some districts. Since all U.S. House districts in the nation have approximately the same population, one wonders why some states require 20,000 signatures, yet others require none.

For Illinois, where anyone can get on the ballot with only one signature if no one challenges, the entry is limited to petitioning candidates who were challenged and who still got on.

State	Year	Candidate	District	No. of Signatures	Basis for Number
Ala.	2006	Mark Layfield	3	5,437	3% of last gubernatorial vote
Alas.	2006	Bill Ratigan	At- large	3,126	1% of last vote cast
Ariz.	2008	Brent Maupin	1	2,330	3% of registered independents
Ark.	2006	Dale Morfey	3	2,000	Number specified in law
Calif.	2008	Cindy Sheehan	8	10,198	3% of registered voters
Colo.	2008	Bill Hammons	2	800	Number specified in law
Conn.	2006	Philip Maymin	4	2,909	1% of last vote for that office
Del.	1964	George A. La Forest	At-large	750	Number specified in law*
D.C.	2002	Pat Kidd	At-large	3,000	Number specified in law
Fla.	1998	Jack Gargan	5	12,141	3% of registered voters*
Ga.	1964	Milton Lent	1	6,500	5% of registered voters
Hi.	2003	Mark McNett	2	25	Number specified in law
Ida.	1920	Riley Rice	1	1,500	Number specified in law*
Ill.	1974	K. Douglas Lassiter	15	9,698	5% of last vote cast
Ind.	2002	Jeff Melton	9	3,664	2% of last secretary of state vote
Iowa	1982	William Douglas	4	4,373	2% of last vote cast*
Kan.	1984	John S. Ralph	3	2,500	Number specified in law**
Ky.	2008	Jim Holbert	5	400	Number specified in law
La.	1976	John Rarick	1	1,000	Number specified in law*
Me.	1976	Jacqueline F. Kaye	2	4.967	3% of last gubernatorial vote*
Md.	1984	Samuel K. Grove	8	9,100	3% of registered voters*
Mass.	1972	Roger P. Durkin	5	5,530	3% of last gubernatorial vote*
Mich.	2006	Jerome S. White	12	6,083	2% of last gubernatorial vote*
Minn.	2006	Harry Welty	8	1,000	Number specified in law
Miss.	2006	Jim Giles	3	200	Number specified in law
Mo.	1992	Duane Burghard	9	8,184	5% of last gub. vote
Mt.	1994	Steve Kelly	At-large	10,186	5% of winner's vote, last election
Neb.	1970	Clair A. Callan	1	1,000	Number specified in law**
Nev.	1936	Harry H. Austin	At-large	2,085	5% of last U.S. House vote*
N.H.	2008	Robert Kingsbury	1	1,500	Number specified in law
N.J.	2008	Costantino Rozzo	2	100	Number specified in law
N.M.	2008	Carol Miller	3	5,779	3% of last gubernatorial vote
N.Y.	2008	Isaiah Matos	14	3,500	Number specified in law
No.C.	- -	never	- -	- -	4% of registered voters
No.D.	2000	Jan Shelver	At-large	1,000	Number specified in law
Ohio	1954	Frazier Reams	9	12,919	7% of last gubernatorial vote*
Okla.	2008	Forrest Michael	3	1	No petition needed, just pay filing fee
Ore.	1990	Rick Livingston	1	7,757	3% of last presidential vote*
Pa.	2006	David G. Baker	2	5,065	2% of winner's vote, last election
R.I.	2008	Kenneth A. Capalbo	1	500	Number specified in law
So.C.	- -	never	- -	- -	Number specified in law (10,000)
So.D.	1934	C. H. Sharp	1	4,065	2% of last gubernatorial vote*
Tenn.	2008	Joel Goodman	1	25	Number specified in law
Tex.	2008	Roger L. Owen	1	500	Number specified in law
Utah	2000	Steven Voris	2	300	Number specified in law
Vt.	1970	Dennis J. Morriseau	At-large	1,611	1% of last gubernatorial vote*
Va.	1998	Bradley E. Evans	7	1,930	One-half of 1% of registered voters*
Wash.	2006	Linnea S. Noreen	7	1,000	Number specified in law**
W.V.	1982	Adrienne Benjamin	3	1,796	1% of last vote cast for that office
Wis.	2008	Michael La Forest	4	1,000	Number specified in law
Wy.	1940	Lee R. White	At-large	100	Number specified in law**

*law has been eased since this record was set. **law is harder now than it was then.

On June 9, Nova Scotia held an election for its own legislature. The New Democratic Party won a majority of the seats for the first time. The results were: New Democrats 31 seats, Liberals 11 seats, Progressive Conservatives 10 seats. The share of the popular vote was: New Democratic 45.3%; Liberal 27.2%; Progressive Conservative 24.5%; Green 2.3%; other .7%.

The New Democratic Party is somewhat closer to being a socialist party than either of the two major parties. The results show what can happen in a system which does not use Proportional Representation, but which does have equal ballot access and inclusive rules for candidate debates. Canada is a two-party system, if one defines "two-party system" to mean a system in which only two particular parties, at any given time, have a realistic chance of winning control of the national government. Some might disagree with that definition of "two-party system", but unfortunately few scholars ever bother to define that term, so confusion abounds.

In the last 30 days, the Libertarian Party has increased its voter registration in Alaska by 500, and the Moderate Party in Rhode Island has collected 2,000 signatures. The Arizona Green Party has collected 1,000 signatures. The Constitution Party has collected 400 in Arizona, 120 in Wyoming, and 50 in Hawaii. There are no statewide offices up in West Virginia in 2010, but the West Virginia Libertarian Party has 1,500 signatures on its 2012 petition.

On June 23, California Assemblymember Juan Arambula revealed that he had recently changed his registration from "Democrat" to "Independent". He cannot run for re-election in 2010 because of term limits.

Krist Novoselic is somewhat famous for his participation in the rock band Grunge, but he is also active in politics, especially in FairVote, which works for Instant Runoff Voting and proportional representation. He is also an officer of the Grange, which sponsored the Washington state "top-two" initiative. However, Novoselic opposes the current Washington "top-two" law, because it lets any candidate place a ballot label on the ballot naming a political party, whether the political party approves of that candidate or not. To make his point, on June 5 he filed to run for County Clerk of Wahkiakum County (a partisan office), choosing "Prefers Grange Party" as his ballot label.

The Grange is not a political party, but Novoselic has the right to choose that label. However, on June 16, he withdrew from the race, after garnering considerable publicity.

On June 9, voters in Portland, Maine elected a Commission to rewrite the city charter. Although the election was non-partisan, voters were generally aware of the partisan affiliations of the candidates. Two Greens were elected to the 12-person body, Ben Chipman and Anna Trevorrow.

Except for 1997, at least one party with "Socialist" or "Socialism" has run a candidate for Mayor of Los Angeles in every election since 1945. At the March 3, 2009 election, the two socialists together polled 2.01% of the total. That is the highest in the entire period following World War II. The previous high in that era had been 1.38% in 1957. The two candidates in 2009 were James Harris of the Socialist Workers Party (who got .90%) and Carlos Alvarez of the Party for Socialism and Liberation (who got 1.11%). There were three candidates in the 2009 race with Hispanic surnames, including the incumbent, who was re-elected.

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