OREGON ELIMINATES PRIMARY SCREEN-OUT

On July 23, Oregon Governor Ted Kulongowski signed SB 326. That bill, which passed on June 29, repeals the law passed in 2005 that says people who vote in a primary may not sign an independent candidate’s petition. The House vote was 42-17; the Senate vote 25-5.

As a result, the only states that still prevent primary voters from signing a petition for either an independent candidate, or for a political party, are Texas and Nebraska. Texas applies its "primary screenout" to all independent candidate petitions and petitions to recognize a party. Nebraska only applies its primary screenout to petitions for independent presidential candidates.

States that once had primary screenouts, but which have repealed them (besides Oregon) are Arizona in 1993, California in 1976, Colorado in 1975, Illinois in 1975, New York in 1984, Rhode Island in 1976, Washington in 1977, and West Virginia in 1999. Elections officials generally oppose the primary screenout, because it makes the petition-checking process more cumbersome.

The fight to repeal Oregon’s screenout was helped by editorials in several large newspapers this year, urging the legislature to eliminate the restriction. Those same newspapers had ignored the matter in 2005, when the legislature was passing the restriction.

The motivation for the primary screenout bill in 2005 was anger that Ralph Nader had tried to get on the ballot in Oregon in 2004. Even though he failed to get on that year, many Oregon legislators were so unhappy that he might have got on the ballot that they made ballot access for independent candidates substantially more difficult. The law had already required a petition of 1% of the last presidential vote, and that percentage was not changed.

Proponents of the bill said that the principles of "one man, one vote" dictate that voters be forbidden to both sign an independent candidate petition and vote in a primary. The League of Women Voters of Oregon also made that argument, and asked the legislature to pass the primary screenout.

The flaw in that argument is that signing a petition for an independent candidate is not voting for the independent candidate. A signature on a ballot access petition means the signer feels it is appropriate for that independent candidate, or that political party, to appear on the ballot.

U.S. District Court Judge Philip Pratt explained this in Hall v Austin, 495 F.Supp.782, in 1980, when he put Gus Hall on the ballot as an independent candidate for president. He wrote, "The real question is whether there is enough support for placing a given candidate on the ballot, not whether there is enough support for electing the candidate. A large segment of the public may be determined never to vote for Hall and Davis yet may wish to see them on the ballot and support their efforts to get on the ballot. Another segment of the public may be attracted to Hall and Davis, may find their viewpoint appealing, and may even support their candidacy in various ways. Yet when the members of this sympathetic constituency finally enter the voting booth, they may decide to vote for candidates with a greater likelihood of success."

The primary screenout was challenged in federal court in 2006 by an Oregon voter, Greg Wasson. No decision in that lawsuit was ever made, because the 9^th circuit said Wasson lacked standing. The Oregon Democratic Party filed an amicus curiae brief in that lawsuit, in defense of the primary screenout. The party said that the screenout "provides for one person, one vote".

The party also said that even with the primary screenout, Oregon procedures for independent candidates are "extraordinarily low, by any measure." The Democratic Party statement was not true. No independent candidate for any federal or state office appeared on the Oregon ballot in 2008, and only one (for State Senate) appeared in 2006.

The same Oregon bill that repealed the primary screenout (see first story) also legalized fusion. Although Connecticut had expanded fusion in 2007, Oregon appears to be the first state that actually legalized fusion, after it had been illegal, in at least 80 years, and perhaps forever.

Oregon will use the type of fusion in which a candidate’s name only appears on the ballot once, even if he or she is the nominee of two or three parties. All of the parties that nominated that candidate are listed next to the candidate’s name, on a single line. The voter can’t choose which party label to vote for.

The Oregon legislature had considered bills for the other type of fusion (in which the voter can choose which label to vote for) in both 2009 and 2007, but those bills didn’t pass.

The Working Families, Libertarian, and Independent Parties worked hard for this bill. The Libertarian Party elected its member-nominees to the state legislature of New Hampshire in 1992 and 1994, largely because New Hampshire permits the type of fusion that Oregon now has. The Vermont Libertarian Party also elected a member-nominee in 1998, also via fusion. Most people think of fusion as a way for minor parties to cross-endorse major party member-nominees, but often forget that fusion also enables minor party members to receive major party nominations.

On July 23, U.S. District Court Judge Mark Fuller, a Bush Jr. appointee, upheld the number of signatures required for an independent U.S. House candidate in Alabama. Shugart v Chapman, m.d., 2:08-cv-1016.

Alabama requires 5,000 signatures for an independent presidential candidate, but 6,155 for an independent U.S. House candidate in the 6^th district (in both 2008 and 2010). Alabama is the only state that ever requires an independent candidate for U.S. House to collect more signatures than an independent presidential candidates needs in the entire state.

In 1979 the U.S. Supreme Court unanimously ruled in Illinois State Board of Elections v Socialist Workers Party that a state may not require more signatures for an office in just part of the state than it requires for a statewide office. Specifically, an independent candidate for Mayor of Chicago could not be required to get 35,947 signatures, when an independent candidate for statewide office needed 25,000. Relying on that case, U.S. District Courts then struck down Colorado and Iowa laws that required more signatures for an independent for U.S. House than were needed for a statewide independent.

Judge Fuller didn’t follow their lead, nor did he mention those other District Court cases. He said the 1979 U.S. Supreme Court precedent doesn’t apply, because "While Illinois State Board addressed the difference between requirements to be on a statewide ballot and those to be on a municipal ballot within that same state, this lawsuit challenges differences between requirements to be on the ballot for a U.S. Congressional District and U.S. President."

Actually, the U.S. Supreme Court didn’t say that its common-sense holding was confined only to a contrast between municipal petition requirements and statewide requirements. This is obvious when one considers that in 1992, the U.S. Supreme Court again struck down the number of signatures for independent candidates in Illinois.

In 1992, the U.S. Supreme Court said Illinois could not require more signatures for Cook County office than for statewide office. Judge Fuller did not mention the 1992 case, Norman v Reed. An appeal is likely.

The plaintiff-candidate who was trying to get on the Alabama in the 6^th district was Andy Shugart. One reason he was motivated to run is that no Democrat has run in that district since 1998. The incumbent Republican, Spencer Bachus, only had a Libertarian opponent in 2000 and 2002. Bachus was the only name on the ballot the last three elections. It is ironic that Democrats could run with zero signatures, but don’t, whereas the state blocks an independent candidate.

On June 25, the Rhode Island Senate passed SB 203, which lowers the petition to create a new party from 5% of the last vote cast (now, 23,589 signatures) to exactly 10,000 signatures. The legislature then adjourned, but the House expects to return in early August, and the House may also pass the bill.

Meanwhile, the state decided not to appeal the Moderate Party’s court victory of May 29, striking down the limit on when a party may begin to circulate this type of petition. SB 203 deletes the start date (January 1 of even-numbered years) that had been struck down. If the bill passes, there will be no limit on how long a group may take to finish this petition. This type of petition has only existed in Rhode Island since 1994, and no group has ever successfully completed it, although the Moderate Party believes it will succeed in time for the 2010 election.

On June 24, the Delaware House passed the National Popular Vote bill, 23-12. The legislature has gone home for the year, but Delaware has two-year sessions, so the bill may pass the Senate next year.

On July 10, Arizona Governor Jan Brewer signed SB 1091 into law. It moves the independent presidential petition deadline from early June to early September. It also lets out-of-state residents circulate for an independent presidential candidate.

On July 13, she signed SB 1074, which moves the primary one week earlier than it would otherwise be. The 2010 primary will be held August 24, the earliest non-presidential primary ever held in Arizona. One indirect result is that petitions for non-presidential independent candidate are now due in late May instead of early June. Also, petitions for a new party are due in early March instead of mid-March.

Also on July 13, she signed SB 1123, which requires that all cities use non-partisan elections for their own officers. Tucson will now be forced to stop using partisan elections.

The Arizona legislature didn’t pass SCR 1025, which would have asked the voters in 2010 if they wish to repeal public financing for campaigns. On the other hand, the legislature didn’t pass SB 1087, which would have repaired the public funding program so that it is more likely to stand up to court scrutiny. Part of the law that gives extra public funding to candidates who have privately-funded opponents is likely to be struck down in U.S. District Court.

On July 7, the Assembly Elections Committee passed SB 34, which makes it illegal to pay initiative circulators on a per-signature basis. The bill had already passed the Senate. However, at the Assembly hearing, the Governor’s office indicated he opposes the bill, so it is very likely it will be vetoed.

On July 13, the Senate Elections Committee passed AB 1121, which lets ten non-charter cities or counties use Instant Runoff Voting for their own elections. It will be in the Senate Appropriations Committee on August 17.

D.C.: on July 13, City Councilmember Mary Cheh amended her Omnibus Election Law bill, 18-345, so that it no longer imposes filing fees on candidates. D.C. already requires petitions for all candidates. Activists had complained that if the Council was going to add filing fees, it should drop mandatory petitions, and those complaints worked. The bill is still undergoing study and it is possible it will make some improvements. The District currently requires a higher number of signatures for an independent or minor party presidential candidate than any state, except Oklahoma, North Carolina, and Wyoming, when the requirements are compared on a percentage basis.

Louisiana: on July 6, Governor Bobby Jindal signed HB 420. It gives independent presidential candidates three more days to file, and also clarifies the deadline for qualified parties to file their presidential elector candidates.

This year has been good for ballot access improvement bills. Major improvements have been signed into law in 2009 in Arkansas, Maine, Oregon and West Virginia, and minor ones in Louisiana, Texas and Utah.

Arkansas: on July 18, the Green Party held its state convention and voted to bring a lawsuit against the state’s definition of "political party". The party was removed from the ballot in November 2008 for failing to poll 3% for President, yet it polled over 20% for U.S. Senate, averaged over 19% for its three candidates for U.S. House, and elected a state legislator. In the entire history of U.S. ballot access laws, no state (except Arkansas in 2008) had ever removed a party from the ballot while it was electing a state legislator.

Florida: on June 25, the 11^th circuit upheld a state law that permits exit polling within 25 feet of the polls, yet won’t permit petitioning within 100 feet of the polls. Citizens for Police Accountability Pol. Comm. v Browning, 08-15115.

Iowa: on June 26, the Green Parties of Iowa and Wisconsin jointly filed a federal lawsuit against Davenport, Iowa, for blocking petitioners from its annual street fair. Bussiere v Davenport, 3:09-cv-101. This is an ACLU case.

Ohio: on July 13, a U.S. District Court ruled that Euclid, Ohio, should use Limited Voting for its School Board elections. Euclid is 45% black, but no blacks have ever been elected to the School Board. Limited Voting is a system in which three candidates are to be elected, but each voter may only vote for one candidate. It enables political minorities of all types to unite behind a single representative and elect him or her. U.S. v Euclid City School Board, n.d., 08-cv-2832.

Washington: on June 24, the 9^th circuit struck down a Seattle regulation that makes it illegal for anyone to engage in "speech activities" within 30 feet of a "captive audience" at the Seattle Center, the outdoor park that includes the Space Needle. A "captive audience" is "any person or group of persons (1) waiting in line to obtain tickets or food; (2) attending or being in an audience; (3) seated where foods or beverages are served." The Center is 80 acres and has 10,000,000 visitors annually.

West Virginia: the July 1 B.A.N. said that the Constitution Party had won a ruling from a U.S. District Court, striking down unbridled discretion for state park officials to approve or deny a permit to petition. B.A..N. said the state was not appealing. However, the state is appealing.

Federal law: on June 29, the U.S. Supreme Court surprised everyone and didn’t issue an opinion in Citizens United v FEC, 08-205, the case over how the McCain-Feingold Law applies to corporations that wish to show a movie that mentions a federal candidate, within 60 days of an election. The law bans corporations from mentioning such candidates in broadcasts in that period. The Court will hear more oral arguments on September 9. Normally the Court doesn’t sit during the summer.

Federal law (2): all briefs have been filed in the U.S. Court of Appeals, D.C., in Unity08 v Federal Election Commission, 08-5526. The issue is whether individuals can give more than $5,000 per year to Unity08, which says that it wants to participate in the presidential election of 2012, although it will change its name to Unity12. The McCain-Feingold Law, passed in 2002, for the first time set limits on how much an individual may contribute to the National Committee of a recognized political party. The only FEC-recognized political parties are Democratic, Republican, Libertarian, Green, Constitution, Natural Law, Reform, and Socialist. The law isn’t clear about political parties that aren’t recognized by the FEC. Back in 1995 and 1996, Ross Perot was permitted to give as much of his own money as he wished, to start the Reform Party.

The chart below lists each state, and tells the most crowded general election ballot that state ever had, for U.S. House of Representatives. Only regularly-scheduled, partisan elections are included. Special elections, and Louisiana’s non-partisan Congressional elections in the years 1978-2006, are excluded. The chart also excludes U.S. House elections in which more than a single winner was to be elected (such elections have not existed in any state since 1967).

The chart also shows how many signatures were required to get on the ballot for U.S. House in the particular year when a state had its most crowded ballot.

The chart shows that if a state requires as few as 200 signatures for a candidate for U.S. House, it will never have a ballot crowded with more than 8 candidates.

The only states that have ever experienced a crowded ballot in an election like that have been Tennessee and New Jersey. Neither state requires any filing fees. Tennessee requires 25 signatures, and New Jersey requires 100.

State and District	Year	Number of Candidates	Requirement (at the time)
Alabama 5	1968	6	Hold a convention
Alaska at-large	2006	5	3,128 signatures
Arizona at-large	1912	5	66 signatures
Arkansas 3	2004	3	2,000 signatures
California 22	1996	6	10,188 signatures
Colorado 1	1896	6	100 signatures
Connecticut 4	1914	6	Hold a convention
Delaware at-large	1976	6	2,431 signatures
Dist. of Columbia at-large	1974	6	3,000 signatures
Florida 1	1912	5	Hold a convention
Georgia 5	1982	3	4,039 signatures
Hawaii 2	1996	5	25 signatures
Idaho 1	2006	5	500 signatures
Illinois 9	1912	6	591 signatures
Indiana 1	1932	6	200 signatures
Iowa 1	1914	6	25 signatures
Kansas 3	1914	5	2,693 signatures
Kentucky 3	1934	6	400 signatures
Louisiana 2	2008	4	Pay $600
Maine 2	1914	5	359 signatures
Maryland 3	1914	6	200 signatures
Massachusetts 15	1936	5	871 signatures
Michigan 16	1936	7	Hold a convention
Minnesota 5	1992	7	1,000 signatures
Mississippi 3	2002	6	100 signatures
Missouri 15	1916	6	Hold a convention
Montana 2	1932	5	Hold a convention
Nebraska 2	1932	7	200 signatures
Nevada 2	2000	7	100 signatures
New Hampshire 1	1896	6	250 signatures
New Jersey 13	1958	11	100 signatures
New Mexico at-large	1932	5	Hold a convention
New York 23	1934	7	3,000 signatures
North Carolina 9	2000	4	51,324 sigs. Statewide
North Dakota at-large	1900	5	300 signatures
Ohio 20	1900	6	299 signatures
Oklahoma 5	1976	6	Pay a fee
Oregon 3	1934	8	Meeting (100 attendees)
Pennsylvania 6	1936	6	1,020 signatures
Rhode Island 1	1996	5	500 signatures
South Carolina 4	2000	5	10,000 signatures
South Dakota 1	1932	5	20 signatures
Tennessee 9	1996	11	25 signatures
Texas 2	1996	5	500 signatures
Utah 2	1998	6	100 signatures
Vermont at-large	2006	8	250 signatures
Virginia 3	1904	6	File declaration of candidacy
Washington 3	1914	6	Meeting (no minimum att.)
West Virginia 1	1914	5	552 signatures
Wisconsin 5	1932	6	1,960 signatures
Wyoming-at-large	1932	5	100 signatures

The chart on page five shows the lowest percentage that any winning gubernatorial candidate has ever received, in each state. The purpose of this chart is to rebut a recent article in the National Standard by Tara Ross, dated July 17. The is titled "How to Win the Presidency…With 15% of the Popular Vote."

Ross says that the Electoral College is the only force that prevents the U.S. electorate from fracturing its votes for president in the general election. She says the National Popular Vote Compact "gives the Presidency to the winner of the ‘largest national popular vote total’…Thus, a presidential candidate could win with only 15% of the votes nationwide."

It is common-place Political Science teaching that when the voters are electing a single individual to an office, most voters deduce which candidates are strong enough to potentially win. Then, they choose to vote for one of those candidates. Evidence for this is overwhelming when one looks at the thousands of gubernatorial elections that have been held in the U.S. since 1789. Never, out of perhaps 5,000 gubernatorial elections, has any state elected someone Governor who got less than 30% of the total popular vote. The chart on page five shows this. The chart excludes Louisiana gubernatorial elections since 1975, because all candidates run in the first round, with a run-off if no one gets 50%. Louisiana voters, knowing a run-off is likely, behave differently in the first round than they would otherwise, so their results aren’t germane to the chart.

State	Year	Winner	Winner’s Party	Winner’s %	Two Highest Runners-Up
Ala.	1865	Robert Patton	Whig	45.2%	Democrat 35.9%, Union 18.8%
Alas.	1990	Walter J. Hickel	Alaskan Indpc.	38.9%	Democrat 30.9%, Republican 26.2%
Ariz.	1986	Evan Mecham	Republican	39.7%	Democrat 34.5%, independent 25.9%
Ark.	1844	Thomas S. Drew	Democratic	47.6%	Whig 38.9%, independent 13.5%
Calif.	1894	James H. Budd	Democratic	39.3%	Republican 38.9%, Peoples 18.0%
Colo.	1912	Elias Ammons	Democratic	42.9%	Progressive 24.9%, Republican 23.7%
Conn.	1994	John G. Rowland	Republican	36.2%	Democrat 32.7%, A Connecticut 18.9%
Del.	1896	Ebe Tunnell	Democratic	44.2%	Republican 31.4%, Anti-Addicks Rep. 20.4%
Fla.	1916	Sidney J. Catts	Prohibition	47.7%	Democrat 36.6%, Republican 12.5%
Ga.	1966	Lester Maddox	Democratic	46.2%	Republican 46.5%, write-in 7.3%
Hi.	1994	Benjamin Cayetano	Democratic	36.6%	Best Party 30.7%, Republican 29.2%
Ida.	1912	John Haines	Republican	33.2%	Democrat 32.2%, Progressive 23.1%
Ill.	1822	Edward Coles	Anti-Slavery	33.2%	Pro-convention 31.2%, Pro-slavery 28.4%
Ind.	1828	James B. Ray	Clay Republican	39.5%	Jackson Democrat 32.0%, Nat. Rep. 28.5%
Iowa	1912	George Clarke	Republican	39.9%	Democrat 39.6%, Progressive 15.6%
Kan.	1932	Alfred M. Landon	Republican	34.8%	Democrat 34.1%, Independent 30.6%
Ky.	1820	John Adair	Democratic-Rep	32.8%	Another Dem-Rep 31.9%, another 20.0%
La.	1831	Andre Roman	Nat. Republican	43.6%	Jackson Democrat 32.8%, Nat. Rep. 18.1%
Me.	1994	Angus King	independent	35.4%	Democrat 33.8%, Republican 23.1%
Md.	1919	Albert C. Ritchie	Democratic	49.1%	Republican 49.0%, Socialist 1.2%
Mass.	1855	Henry Gardner	American	37.7%	Republican 26.9%, Democrat 25.5%
Mich.	1912	Woodbridge Ferris	Democratic	35.4%	Republican 31.0%, Progressive 27.9%
Minn.	1998	Jesse Ventura	Reform	37.0%	Republican 34.3%, Democratic 28.1%
Miss.	1831	Abram Scott	Nat. Republican	30.5%	Jackson Dem. 28.6%, Jackson Dem. 22.4%
Mo.	1856	Trusten Polk	Democratic	40.8%	American 35.2%, Benton Dem. 24.0%
Mt.	1912	Samuel Stewart	Democratic	31.7%	Republican 28.7%, Progressive 23.6%
Neb.	1890	James E. Boyd	Democratic	33.3%	Peoples 32.8%, Republican 32.2%
Nev.	1898	Reinhold Sadler	Silver Rep.	35.7%	Republican 35.5%, Democrat 20.6%
N.H.	1912	Samuel Felker	Democratic	41.1%	Republican 39.0%, Progressive 17.3%
N.J.	1913	James Fielder	Democratic	46.1%	Republican 37.4%, Progressive 11.0%
N.M.	1916	Ezequiel deBaca	Democratic	49.4%	Republican 47.4%, Socialist 3.2%
N.Y.	1854	Myron Clark	Republican	33.4%	Soft Democrat 33.3%, American 26.1%
No.C.	1896	Daniel Russell	Republican	46.5%	Democratic 43.9%, Peoples 9.4%
No.D.	1936	William Langer	independent	35.8%	Republican 34.7%, Democrat 29.3%
Ohio	1912	James M. Cox	Democratic	42.4%	Republican 26.3%, Progressive 21.0%
Okla.	1914	Robert Williams	Democratic	39.7%	Republican 37.8%, Socialist 20.8%
Ore.	1874	La Fayette Grover	Democratic	38.2%	Republican 36.1%, independent 25.7%
Pa.	1910	John K. Tener	Republican	41.3%	Keystone 38.3%, Democrat 13.0%
R.I.	1875	Rowland Hazard	independent	39.2%	Republican 37.6%, Democrat 23.2%
So.C.	1876	Wade Hampton	Democratic	50.3%	Republican 49.7% (only 2 candidates in race)
So.D.	1890	Arthur Mellette	Republican	44.5%	independent 31.7%, Democrat 23.8%
Tenn.	1880	Alvin Hawkins	Republican	42.6%	StateCredit Dem 32.4%, LowTaxDem 23.6%
Tex.	1853	Elisha Pease	Democratic	36.2%	Whig 25.4%, another Democrat 16.5%
Utah	1912	William Spry	Republican	38.2%	Democrat 32.4%, Progressive 21.2%
Vt.	1912	Allen Fletcher	Republican	40.5%	Democrat 30.9%, Progressive 24.1%
Va.	1965	Mills Godwin	Democratic	47.9%	Republican 37.7%, Conservative 13.4%
Wash.	1912	Ernest Lister	Democratic	30.6%	Republican 30.4%, Progressive 24.4%
W.V.	1920	Ephraim Morgan	Republican	47.3%	Democrat 36.3%, independent 15.9%
Wis.	1934	Phillip La Follette	Progressive	39.1%	Democrat 37.7%, Republican 18.1%
Wy.	1958	J. J. Hickey	Democratic	48.9%	Republican 46.6%, Economy 4.5%

Gene Amondson, Prohibition Party presidential nominee in 2008, died on July 20 in Washington state. He was 65 and had suffered a stroke the previous day.

The California Moderate Party says it will try to qualify for the California ballot in 2010. It needs 88,991 registered members by January 6, 2010. See www.camod.org.

The Illinois Green Party ran Richard Whitney for Governor of Illinois in 2006. He polled over 10% of the vote, and made the Greens a qualified party (the law requires a party to poll 5% for Governor to be ballot-qualified for all office). On July 15, Whitney said he will run again in 2010.

Virginia elects all 100 members of the House of Delegates in November 2009. On the ballot will be 7 nominees of the Independent Green Party, 3 nominees of the Constitution Party, one Green, and one Libertarian.

New Jersey elects its Governor this November. One independent candidate for Governor, Chris Daggett, has raised more than $350,000. Therefore, he is eligible for public funding, and will be included in gubernatorial debates with his Democratic and Republican opponents.

On July 8, Massachusetts State Treasurer Tim Cahill changed his registration to "independent." He had been elected as a Democrat in 2006. He will probably run for Governor in 2010 as an independent, because he feels the Democratic incumbent (who is expected to run for re-election) is spending excessively.

California held a special election on July 14 to fill the vacant U.S. House seat, 32^nd district. The results: Democratic 61.7%, Republican 33.1%, Libertarian 5.2%. This was the first time the Republicans had run a nominee in this district since 2002. In 2002, the vote had been: Democratic 68.8%, Republican 27.5%, Libertarian 3.7%.

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