FEDERAL COURT STRIKES DOWN BAN ON SIGNING FOR TWO CANDIDATES FOR SAME OFFICE

On October 8, U.S. District Court Judge William E. Smith struck down a Central Falls, Rhode Island charter provision that makes it illegal for a voter to sign petitions for two candidates for the same office. This was only the second time a federal court had invalidated such a law. The case is Fontes v City of Central Falls, 09-437. Judge Smith is the same judge who, on May 29, 2009, struck down a Rhode Island law that made it illegal for a petition to create a new party to be circulated in an odd year.

The candidate who brought the lawsuit needed 200 signatures. He submitted 333 signatures, but he was told only 197 were valid. He lost 65 signatures because the signers were registered, but they had also signed the petition for Fontes’ only opponent, the incumbent Mayor who was running for re-election at the November 3, 2009 election. The Central Falls law says if a voter signs for more than a single candidate for any particular office, the only signature that counts is the one on the first petition submitted to elections officials. In this particular case, the Mayor filed his petitions first, so the signatures for Fontes were invalid.

The decision says, "The first to file rule contained in sec. 6-110 is not necessary to further the government’s stated interests in reducing ballot clutter or in demonstrating a candidate’s support in the community."

The only other federal court that ever struck down a ban on signing multiple petitions for the same office is the 9^th circuit. In 1975, it struck down a Guam law that said if a voter signs a petition for a candidate running in a primary, then that same voter cannot later sign a petition for an independent candidate running for the same office. That case, Webster v Mesa, is limited to offices for which there are multiple candidates to be elected.

States that limit voters to signing only a single petition for each office frequently do not write these laws very well. They typically codify the restriction, but they don’t say what to do when voters do sign competing petitions.

For example, California Election Code section 8404 says voters can’t sign more than one independent candidate petition for each office. In 1976, four presidential candidates, Eugene McCarthy, Roger MacBride (Libertarian), Peter Camejo (Socialist Workers), and Gus Hall (Communist) were all circulating petitions. State courts refused to let elections officials invalidate any signatures on the basis of the law, because the law didn’t say which signature should be counted. One of the cases was Libertarian Party v Corcoran, Los Angeles Co. Superior Court C173086. It was the first ballot access victory ever won by the Libertarian Party.

Again, in 1980, when John Anderson, Barry Commoner, and the presidential candidates of the Communist Party and the Socialist Workers Party were all circulating independent petitions, a California state court again refused to let elections officials invalidate any signatures on the basis that a voter had signed more than one petition. The 1980 decision was Commoner v Eu, Los Angeles Superior Court C330278. But, the California law was never formally declared unconstitutional, and it continues to be in the law.

Some states say that the first signature counts, but that isn’t easy to administer, even if states ask voters to date their signatures, because sometimes voters sign two competing petitions on the first day. New York and Pennsylvania law says the first signature counts, but if signatures on two competing petitions have the same date, then neither signature counts.

Illinois law, sec. 5/10-3, says the first signature counts, but a State Appeals Court ruled in Watkins v Burke, 461 NE 2d 625 (1984) that unless the challenger to a petition can prove which signature was signed first, no signature can be invalidated on the basis that the voter signed two competing petitions.

Kansas is the only state that forbids a voter from signing more than one candidate petition for the same office and also says in the law itself that if a voter does sign more than one, then none of the signatures count. The problem with that approach is that it isn’t fair to the candidates, because they can’t know if any of their signers have already signed for another candidate, or whether they will in the future. However, the Kansas law has apparently never been challenged.

Kentucky, Massachusetts, and Nevada laws or Attorney General Opinions say that the first signature filed counts. This approach, of course, is what Central Falls used, yet the Central Falls law was invalidated.

Other states that say that voters can’t sign more than one competing petition, but don’t say in their statutes how to handle cases in which voters do sign more than one, are Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming. Arizona lets voters sign for multiple independent candidates, but won’t let voters sign for any independent if that voter signed for a primary candidate for the same office.

Why This Issue is Important

Recently, some nationally-organized minor parties have been arranging to have paid circulators ask voters to sign more than party’s petition. This greatly reduces costs.

However, this approach doesn’t work when states forbid voters from signing more than a single petition.

The philosophy that supports letting voters sign multiple petitions is express in Hall v Austin, 495 F.Supp. 782 (1980). The judge in this Michigan case analyzed the meaning of a signature on a ballot access petition for a candidate. Judge Philip Pratt, a Nixon appointee, 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."

It is logical for a voter to believe that two particular candidates deserve to be on the ballot for a single office, and therefore it is logical to permit such a voter to sign two petitions. Also, the permissive approach makes it easier for elections officials to check petitions.

On October 20, the North Carolina Appeals Court upheld the state’s ballot access laws for minor parties, by a vote of 2-1. Because the vote was split, the State Supreme Court is legally required to hear the appeal. The case is Libertarian Party of N.C. v State, 08-1413. The Green Party is a co-plaintiff.

The majority upheld the 2% petition to qualify a new party, even though in 2010 it requires 85,379 signatures, the second highest petition for parties in the nation. Only California requires a larger number. Minnesota has a procedure to qualify a new party of 145,519 signatures, but it is not mandatory; minor parties can also place candidates on the Minnesota ballot with the party label, with a petition of 2,000 signatures.

The majority also upheld the vote test, which requires 2% for either President or Governor. And they upheld the characteristic of the law that makes it impossible for a party to appear anywhered on the ballot, unless it qualifies statewide.

The majority decision erroneously says that the U.S Supreme Court had upheld Texas law in 1974, and that Texas law doesn’t permit a party to qualify in any part of the state unless it is qualified statewide. The truth is that ever since Texas began requiring a petition for parties to get on the ballot (in 1967), it has always had a procedure for a party to get on the ballot in a single county, if it isn’t on statewide.

The majority didn’t even say what the state interest is in requiring so many signatures. The state had argued that the ballot would be too crowded in presidential election years if the law were relaxed, because the state elects ten statewide state officers in presidential election years. The decision does not mention the state’s argument. Ever since December 2000, when the petition requirement jumped above 51,324, the only party that has appeared on the ballot besides the two major parties has been the Libertarian Party, and even it wasn’t on in 2006.

The decision completely forgot to address two other issues in the case. One is the state law that says that qualified parties appear on the state income tax form, so that taxpayers can send a small donation, but only if the qualified party has registration equal to 1% of the state total. The Libertarian Party argued that all qualified parties should appear on the tax form. The party did appear on the 2008 tax form by mistake, and it received $39,691. But it won’t be on the 2009 tax form unless a Court orders relief.

The other forgotten issue is the state’s policy of not letting voters register as members of unqualified parties. Courts in Colorado, Oklahoma, New Jersey, New York, and Iowa have ruled that states must permit this. The Libertarians might possibly have registration of 1% by now if the state hadn’t forced all its registrants to become independents, in 2005, when the party went off the ballot. It is back on now, but must poll 2% in 2012 for President or Governor or it will again go off, unless the law is changed.

The October 1 B.A.N. had reported that a U.S. District Court in Washington had ruled that the U.S. Constitution probably protects the privacy of people who sign Referendum petitions. The case is Doe v Reed. Since then, the case has taken some dramatic new turns.

On October 14, the 9^th circuit heard arguments in the state’s appeal, and the next day, it ruled that the U.S. District Court had been wrong. It gave the Washington Secretary of State permission to reveal the names and addresses of the people who had signed R-71, the Referendum on the civil unions bill passed earlier this year by the legislature. Supporters of the civil unions bill want to post those names and addresses on a webpage called KnowThyNeighbor.

The 9^th circuit said it would explain its reasoning later. But on October 16, the Referendum sponsors asked the U.S. Supreme Court to keep the information private, at least while the case is still alive. On October 19, the U.S. Supreme Court voted 8-1 that the Secretary of State should not release the data while the case is still alive. The dissenter was Justice John Paul Stevens.

On October 20, a state court judge in Washington ruled that since Referendum petitions temporarily enjoy privacy, he was ordering the same treatment for Initiative petitions.

On October 22, the 9^th circuit explained the basis for its order in favor of release of the information. It said petitions aren’t private anyway, because the circulators can see who signed. Also, certain elections officials see the names when they check the petitions for validity. And, the 9^th circuit said, because petition sheets contain 20 lines, someone who signs any particular sheet may glance at the names of others who had already signed that same sheet.

Now the proponents of privacy will ask the U.S. Supreme Court to hear the case on the merits.

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BOOK REVIEW: ONLY THE SUPER-RICH CAN SAVE US!

Only the Super-Rich Can Save Us!, by Ralph Nader. Hard Cover, 733 pages, Seven Stories Press, 2009.

Anyone who has passionate feelings about government is likely to appreciate the idea behind Ralph Nader’s first work of fiction. That sentence is true, no matter whether one agrees or disagrees with Nader on policy. Nader set out to imagine what could ever possibly get a Republican-majority Congress, teamed with a Republican President, to enact Nader’s preferences for public policy into law. He used his imagination to conjure up a scenario, and then describes it in this novel.

The book is set in 2006. Nader imagines that nineteen very wealthy individuals decided to come together and use all their skills, their money, their knowledge of how Congress really works, and their fame, to cause the federal government to enact the laws that Nader desires. Nader uses the names of actual billionaires, including Ross Perot. Of course these billionaires face stiff resistance, and the names of the opposing characters are not actual names, but poorly disguised stand-ins, such as Bush Bimbaugh and Brovar Dortwist.

In the book, Congress passes bills for public funding, limited free access to radio and TV for candidates, federal standards for ballot access laws, Instant Runoff Voting, and a binding "None of the above."

One of the many devices that the billionaires use to pressure Congress is the creation of a new party, the Clean Elections Party, which ends up winning seats in the House.

California: the Governor signed two election law bills: AB 30 lets a 17-year-old submit a voter registration, although it remains dormant until that voter is 18; AB 1396 deletes from the Election Code the laws that tell the Democratic Party who should be on its state central committee.

California (2): the Governor vetoed SB 34, which would have made it illegal to pay initiative circulators on a per-signature basis.

Connecticut: on October 22, the Government Administration and Elections Committee held a public hearing on whether the state’s public funding law should be amended, to take account of the U.S. District Court decision that invalidated it. The Attorney General encouraged the committee to trust in his hope that the 2^nd Circuit will overturn the decision. The representative from the State Elections Enforcement Commission seemed to lean in favor of amending the law now.

Dist. of Columbia: on October 6, the City Council passed the Omnibus Election Law bill, 18-345, on first reading. No Council member suggested making any improvements to ballot access, despite the earlier testimony that D.C. requires more signatures to get an independent presidential candidate on the ballot than any state, as a percentage of the electorate, except for Oklahoma, North Carolina, and Wyoming. But there is a second hearing on November 3.

Illinois: Governor Pat Quinn vetoed HB 723, the bill to make it more difficult for qualified parties to nominate candidates after the primary is over. But the House overrode his veto on October 14, by a vote of 107-9. The Senate will probably also override the veto; the vote is set for October 28.

New Hampshire: earlier this year, the legislature passed HB 623, which makes it illegal for candidate petitions to be circulated in an odd year, and the Governor signed it into law. New Hampshire is among the few states in which the legislature has never eased the ballot access laws. Every time those laws change, they get more restrictive. HB 623 was suggested by the Secretary of State.

North Carolina: State Senator Andrew C. Brock, a Republican, says he will introduce a bill in 2011 to ease the ballot access laws, assuming he is re-elected in 2010. The 2010 session is too short for such bills.

On October 22, Congress passed S.1390, which includes a provision that requires states to mail overseas absentee ballots no later than 45 days before the election. The law only applies to federal elections. It also outlaws any state requirement that the ballot must be notarized.

President Obama is expected to sign it. One indirect consequence will probably be that states with September primaries will be forced to move them to August. The states with September Congressional primaries are Delaware, Hawaii, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Wisconsin.

For years, New Mexico elections officials have refused to let minor parties have blank petition forms to begin qualifying the party, until October 1 of the odd year before the election. However, recently New Mexico’s Assistant Secretary of State submitted an affidavit saying that those petition forms are available any time. This affidavit came into existence because the Libertarian and Green Parties are suing the state over its ballot access laws. The new policy is too late to help anyone this year, but it will help in the future.

The California "top-two" ballot measure, to be voted on in June 2010, would seal off all routes to the November ballot for candidates who don’t file by early March. The chart on page four shows the cut-off date for candidates to enter races in 2010, for each state. If the California "top-two" measure passes, California would have one of the three earliest cut-offs. Furthermore, the California measure bans write-ins at the general election, thus creating a very inflexible system. Under existing California law, an independent can enter the race in August of election years.

State	Deadline to Get on November Ballot	Deadline to File for Write-in Status
Alabama	June 1	No filing needed
Alaska	August 24	October 28
Arizona	May 25	September 23
Arkansas	June 30	September 3
California	August 6	October 19
CAL. TOP-TWO	March 12	Write-ins Not Counted
Colorado	June 15	October 28
Connecticut	August 11	October 19
Del.	August 10	September 30
Fla.	July 19	July 20
Ga.	June 13	October 13
Hi.	July 19	Write-ins not permitted
Ida.	March 19	October 28
Ill.	June 21	September 3
Ind.	June 30	October 22
Iowa	August 13	No filing needed
Kan.	August 2	October 25
Ky.	August 10	October 22
La.	August 20	Write-ins not permitted
Me.	May 27	September 18
Md.	August 2	November 1
Mass.	July 27	No filing needed
Mich.	July17	October 29
Minn.	July 20	October 28
Miss.	April 9	Write-ins not counted unless on-ballot candidate dies
Mo.	July 26	October 29
Mt.	March 25	October 18
Neb.	August 24	November 1
Nev.	March 12	Write-ins not permitted
N.H.	June 11	No filing needed
N.J.	June 2	No filing needed
N.M.	June 3	August 31
N.Y.	August 17	No filing needed
No.C.	June 10	August 4
No.D.	September 3	October 12
Ohio	May 3	September 23
Okla.	June 9	Write-ins not permitted
Ore.	August 26	No filing needed
Pa.	August 2	No filing needed
R.I.	June 30	No filing needed
So.C.	July 15	No filing needed
So.D.	June 2	Write-ins not permitted
Tenn.	April 1	September 13
Tex.	January 2	August 24
Utah	March 15	October 27
Vt.	September 10	No filing needed
Va.	June 8	No filing needed
Wash.	May 15	November 1
W.V.	July 30	October 19
Wis.	July 13	No filing needed
Wy.	August 23	November 4

Some deadlines above are Declaration of Candidacy deadlines, not petition deadlines.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB'T	GREEN	CONSTI	WK FAM	Party	Indp.
Ala.	37,513	37,513	100	0	0	0	June 1	June 1
Alaska	(reg) 9,786	#3,128	*9,000	*2,560	0	0	June 1	Aug. 24
Ariz.	20,449	(est) #25,500	already on	*11,000	*1,300	0	*Feb. 25	May 25
Ark.	10,000	10,000	0	0	0	0	June 30	May 3
Calif.	(reg) 88,991	173,041	already on	already on	in court	0	Jan. 6	Aug. 6
Colo.	(reg) 1,000	1,000	already on	already on	already on	0	June 1	June 15
Conn.	no procedure	#7,500	already on	already on	can’t start	can’t start	- - -	Aug. 11
Del.	(est) (reg) 300	(est) 6,200	already on	already on	already on	already on	Aug. 10	July 15
D.C.	no procedure	#3,000	can’t start	already on	can’t start	can’t start	- - -	Aug. 25
Florida	be organized	pay fee	already on	already on	already on	0	Apr. 30	Apr. 30
Georgia	57,582	#44,089	already on	0	0	0	July 13	July 13
Hawaii	692	25	already on	0	50	0	Apr. 1	July 19
Idaho	13,102	1,000	already on	can’t start	already on	can’t start	Aug. 27	March 19
Illinois	no procedure	#25,000	can’t start	already on	can’t start	can’t start	- - -	June 21
Indiana	no procedure	#32,742	already on	0	0	0	- - -	June 30
Iowa	no procedure	#1,500	0	0	0	0	- - -	Aug. 13
Kansas	16,994	5,000	already on	0	0	0	June 1	Aug. 2
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	- - -	Aug. 10
La.	(reg) 1,000	pay $500	already on	already on	500	0	May 20	Aug. 20
Maine	27,544	#4,000	0	already on	0	0	Dec 11, 09	May 27
Md.	10,000	(est) 35,000	already on	already on	already on	0	Aug. 2	Aug. 2
Mass.	(est) (reg) 40,000	#10,000	already on	7,522	80	20	Feb. 1	July 27
Mich.	38,024	30,000	already on	already on	already on	0	July 15	July 17
Minn.	145,519	#2,000	0	0	0	0	July 20	July 20
Miss.	be organized	800	already on	already on	already on	0	April 9	April 9
Mo.	10,000	10,000	already on	0	already on	0	July 26	July 26
Mont.	5,000	#15,359	already on	0	already on	0	Mar. 18	Mar. 18
Nebr.	5,921	4,000	0	0	0	0	Aug. 2	Aug. 24
Nev.	9,083	9,083	already on	0	already on	0	June 11	Mar. 12
N. Hamp.	20,394	#3,000	0	0	0	0	Aug. 4	Aug. 4
N.J.	no procedure	#1,300	0	0	0	0	- - -	June 2
N. M.	4,151	16,764	*350	0	already on	0	Apr. 1	June 3
N.Y.	no procedure	#15,000	can’t start	can’t start	can’t start	already on	- - -	Aug. 17
No. Car.	85,379	85,379	already on	0	0	0	May 14	June 10
No. Dak.	7,000	#4,000	0	0	0	0	Apr. 9	Sep. 3
Ohio	unsettled	5,000	unsettled	unsettled	unsettled	0	unsettled	May 3
Okla.	73,134	pay fee	0	0	0	0	May 1	June 9
Oregon	20,640	(est) 19,000	already on	already on	already on	already on	Aug. 26	Aug. 26
Penn.	no procedure	(est) #25,000	can’t start	can’t start	can’t start	can’t start	- - -	Aug. 2
R.I.	23,589	#1,000	0	0	0	0	May 28	July 22
So. Car.	10,000	10,000	already on	already on	already on	already on	May 2	July 15
So. Dak.	8,389	3,356	0	0	already on	0	Mar. 30	June 8
Tenn.	in court	25	0	0	0	0	unsettled	April 1
Texas	43,991	43,991	already on	can’t start	can’t start	can’t start	May 24	May 10
Utah	2,000	#1,000	already on	0	already on	0	Feb. 15	March 15
Vermont	be organized	#500	already on	0	already on	organizing	Jan. 1	Sep. 10
Virginia	no procedure	#11,000	0	0	0	0	- - -	June 8
Wash.	no procedure	pay fee	0	0	0	0	- - -	May 15
West Va.	no procedure	*#7,250	0	already on	0	0	- - -	May 10
Wisc.	10,000	#2,000	already on	already on	can’t start	can’t start	June 1	July 13
Wyo.	4,988	4,988	already on	0	*2,200	0	June 1	Aug. 23
TOTAL STATES ON			27	16	16	4	``	`

#partisan label is permitted on the ballot (other than "independent").
*change from the Aug. 1 2009 chart.
Mississippi, New Jersey, Virginia, and West Virginia have no statewide race in 2010, so the entry is for a full slate of U.S. House nominees.

On October 1, New York state Assemblymember Fred Thiele changed his voter registration from "Republican" to "Independence." He represents Long Island and has been in the legislature since 1995. He joins another Assemblymember, Timothy Gordon of Albany, who is also registered as a member of the Independence Party. Both participate in the Democratic caucus. Thiele said he left the Republican Party because "it stands for nothing."

On October 16, a U.S. District Court told the Virginia Board of Elections to count 2,000 foreign absentee ballots from the November 2008 election. The Board had not counted them because they didn’t arrive in the mail by the state deadline. But the Judge said that the state was at fault for not mailing the ballots out soon enough. Therefore, the final nationwide vote totals for President will change soon. The lawsuit is McCain-Palin 2008 v Cunningham, e.d.3:08cv-709.

Chris Daggett, a leading independent candidate for Governor of New Jersey in the November 3, 2009 race, has performed well in debates, and is now at 20% in some neutral polls. No one other than the Democratic and Republican nominees has polled ever 5% for New Jersey Governor since 1913, when the Progressive Party nominee polled 11.0%. Daggett has been endorsed by the Newark Star-Ledger, the largest newspaper in the state, and some other newspapers as well. His campaign has caused the big newspapers to run feature stories about the badly-designed New Jersey ballots, which (in most counties) have three column headings: "Republican", "Democratic"; and "Nomination by Petition." All the non-major party nominees are squeezed into that last column. Daggett’s lawsuit on the ballot format won’t be heard until after the election.

On November 3, 2009, Pennsylvania holds a partisan statewide election for Judge, Superior Court. Four are to be elected. On the ballot are four Democrats, four Republicans, and one Libertarian. This is the first time a minor party has been on the ballot in a Pennsylvania statewide judicial odd year election since 1993, when the Patriot Party was on. Pennsylvania recognizes the Libertarian Party as a qualified party, because it polled more than 2% of the highest vote-getter’s statewide in 2008. However, a 1986 law says that qualified parties are not automatically on the ballot unless they have over 1,000,000 registered members. But, a loophole says qualified parties are on automatically for special elections, so the Libertarians were able to enter the Superior Court race because one of the openings is a special election to fill a vacancy.

On October 13, Tennessee held a special election to fill the vacant State House seat, 62^nd district. The vote: Republican 55.7%, Democratic 41.4%, Constitution (on as independent) 2.9%. When this seat was last up, in 2008, the vote had been: Democratic 55.0%, Repubican 45.0%.

Eight candidates are on the ballot for New York City Mayor. They are: Michael Bloomberg (Republican, Independence); William Thompson (Democratic, Working Families); Stephen Christopher (Conservative); Francisca Villar (Party for Socialism and Liberation); Dan Fein (Socialist Workers); Billy Talen (Green); Jimmy McMillan (Rent is Too High); Joseph Dobrian (Libertarian).

The Federal Elections Commission has published Federal Elections 2008, a free book of election returns for President and Congress. Call (800) 424-9530.

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