NEW LEGAL ATTACK ON PRIOR-AFFILIATION BARRIER

In 1961, the California legislature came up with one of the worst election law ideas in U.S history. Legendary Speaker of the California Assembly Jesse Unruh introduced a bill to provide that candidates can be forbidden from running for partisan office (except by write-ins), based on how they had been registered to vote in the past. The bill was signed into law by Governor Pat Brown.

The California law said that no one could run in a partisan primary if he or she had been registered in another party for an entire year before filing. And, it said independent candidates could not qualify if they had been registered to vote in a qualified party, an entire year before filing.

A moment's reflection about history should have told the California legislature that this was a bad idea. The Republican Party was formed on July 6, 1854, and many of its candidates in the 1854 congressional and state elections had been members of the Whig Party, the Free Soil Party, or the Democratic Party. Many of them were incumbent members of Congress, or Governors, or state legislators. A law such as the 1961 California law would have crippled the ability of a new broad-based party to be formed in an election year, or even in the second half of an odd year.

It wouldn't have been necessary to look back at the 19^th century to know the idea was a bad one. In the typical session of Congress, on the average, one member of Congress switches parties. For example, U.S. Senator Arlen Specter changed his registration from Republican to Democratic on April 28, 2009. Under the California law, Specter could not have run for re-election in 2010, except as a write-in candidate. The Pennsylvania primary in 2010 is on May 18, and the filing deadline is March 9, 2010. That is less than one year from the date of Specter's party switch.

Unfortunately, in 1974, the U.S. Supreme Court upheld the part of the California law that bars independents from running if they had been registered in a qualified party during the year before filing. That case was called Storer v Brown. It was written by Justice Byron White, who wrote all of the U.S. Supreme Court ballot access decisions that upheld restrictions, 1972-1993.

Also in 1974, both state and federal courts upheld the other part of the California restriction, blocking ballot access in partisan primaries. The U.S. Supreme Court refused to give any relief in Hayakawa v Brown, 415 U.S. 1304. S. I. Hayakawa was kept off the 1974 Republican primary ballot for U.S. Senate because he had been registered as a Democrat at some point in the preceding year. He did win the Republican nomination for the other U.S. Senate seat in 1976, and went on to win in 1976.

After the U.S. Supreme Court upheld the California law, other states began passing similar laws, but the only state that made its restriction as severe as California's was Colorado, which in 1977 imitated California's one-year rule for both partisan primaries, and for independent candidates.

But last month, a new legal attack was launched on Colorado's one-year rule for independent candidates. Joelle Riddle, an incumbent member of the La Plata County Commission, had changed her registration from "Democratic" to "independent" on August 21, 2009. Independent candidates in Colorado must file in June of election years, so Riddle's switch meant that she couldn't run for re-election in 2010 as an independent candidate.

On November 16, Riddle sued to overturn the law. The case is Riddle v Daley, 09-cv-2680. It was assigned to U.S. District Court Judge Marcia Krieger, a Bush Jr. appointee.

One might wonder, what chance does this lawsuit have, given that the U.S. Supreme Court upheld a virtually identical California law in 1974. But, Riddle will use an argument that was not available in the California 1974 case. California, in 1974, was at least consistent, applying the one-year restriction to both kinds of candidate, independents and political party members.

Colorado, by contrast, no longer applies the one-year rule to candidates seeking the nomination of any political party, if that party has its own Bylaw or rule setting a less restrictive rule. So, Riddle will argue that there is no rational state interest in blocking her from being an independent candidate in 2010, when she is free to start her own new political party, get it on the ballot, and then have that new political party pass a Bylaw saying anyone is eligible for its nomination, no matter how they were registered in the past.

In theory, Riddle is free to create the "Joelle Riddle Party", or perhaps the "La Plata County Independent Party." She could do this with 10,000 signatures anywhere in Colorado. Then, the party she had created could pass a permissive Bylaw on prior registration. Then it could nominate her.

The reason Colorado now lets parties create their own Bylaw on prior registration is that in 1988, the Colorado Democratic Party won a lawsuit in state court, in which that court said that the First Amendment's Freedom of Association Clause means that parties are free to decide for themselves who can seek their nomination.

Riddle wants to be an independent candidate, not the nominee of a new party, so she hopes to win a ruling that Colorado is denying equal protection to independents. Then she could get on the ballot with a petition of only 2% of the last vote cast in her district.

On November 23, Ohio Secretary of State Jennifer Brunner ruled that the minor parties who were permitted to be on the 2008 ballot will also automatically be on in 2010. They are the Constitution, Green, Libertarian, and Socialist Parties.

The Ohio House did pass a ballot access bill, HB 260, on November 18. If this bill were to pass very quickly, then Ohio would have a valid ballot access law for new parties in place, and parties that wanted to be on in 2010 would be expected to comply with it. The bill requires 10,057 signatures. But, the chances that HB 260 will pass quickly are very dim, so the Secretary of State decided to resolve the uncertainty in favor of the minor parties.

One reason HB 260 is not expected to pass quickly is that all Republicans in the House voted against it. Republicans have a big majority in the State Senate but are in the minority in the House.

HB 260 is several hundred pages long, and changes many election laws unrelated to ballot access. There is a Republican-backed omnibus election law bill in the Senate, SB 8, but it has no ballot access provisions.

The reason Ohio currently has no valid ballot access law for minor parties is that its law was declared unconstitutional in September 2006, and the legislature has not replaced it.

On August 25, Illinois Governor Pat Quinn vetoed HB 723, the bill that makes it more difficult for ballot-qualified parties to nominate candidates by committee, after the February primary is over. Unfortunately, the House overrode the veto on October 14, and the Senate overrode it on October 30, so it becomes law despite the veto.

The new law still lets parties nominate after the primary is over, but their nominees now need a petition.

On November 18, the Green Party sued Arizona over the law that makes it illegal for the party to use petition circulators who don't live in Arizona. The case is Arizona Green Party v Bennett, 2:09-cv-2412. The Green Party is trying to complete the petition for party status for 2010, which requires 20,449 signatures by February 25. The lawsuit argues that the deadline is too early, and points out that when the 2009 legislature made the deadline earlier (it had been in March), it should have made the increase effective in 2011, not 2010, because changing the deadline in the middle of the party's petition drive violates due process. Ralph Nader won a similar lawsuit against West Virginia in 2000, because the 1999 session of the West Virginia legislature had doubled the number of signatures, effective 2000, and the court ruled that the increase should not have been implemented so quickly.

The 9^th circuit ruled in 2008 that Arizona's ban on out-of-state circulators violates the First Amendment. In response, the Secretary of State arranged for the legislature to legalize out-of-state circulators, but only for independent presidential petitions, not for any other kind of petition. The same law firm that won the 2008 Nader case against Arizona is also doing the current Green Party case.

The number of signatures for statewide independent and minor party nominees in Pennsylvania in 2010 will be 19,082 signatures. This is because there was an especially low turnout in the November 3, 2009 statewide election, for the partisan statewide judicial races.

This is the lowest number of signatures needed in Pennsylvania since 1970. Back in 1970, the formula was one-half of 1% of the vote cast for the highest vote-getter in the preceding election, but in 1971 the legislature quadrupled that, to 2%.

Ballot Access News learned recently that one ballot access improvement law did pass in New York this year. On July 28, the Governor signed S.1366. It deletes the requirement that an independent candidate's petition must include language that the circulator is a registered voter in the district that the candidate is running in. This law had been held unconstitutional in Chou v New York State Board of Elections, 332 F.Supp.2d 510 (2004).

Even though the law was void, it still presented a problem, because petitions in New York are state-printed forms, and the state form retained the old unconstitutional language. Sometimes circulators lined out the obsolete language, but that was dangerous. In 2005 the New York State Court of Appeals ruled in McGuire v Gamache, 840 NE 2d 107, that anyone who lines out this wording on a petition, and doesn't explain in the margin why he or she lined it out, has invalidated that petition sheet. Now that the legislature has passed S.1366, the state will print new forms without the bad language.

During the last thirty days, alternate voting systems made gains through the courts. On November 6, a U.S. District Court ruled that Port Chester, New York, should use Cumulative Voting for its elections for village trustee. On November 13, the U.S. Justice Department said that it would not appeal an earlier decision by another U.S. District Court that said Euclid, Ohio, should use Limited Voting for its School Board elections. And on October 29, still another U.S. District Court ruled that Lake Park, Florida, should use Limited Voting for its city commission elections. All three cities have substantial racial and ethnic minorities who hadn't been able to win when those cities used at-large elections under winner-take-all rules.

On October 28, President Obama signed S.1390 into law. It tells the states they must mail foreign absentee ballots no later than 45 days before any federal primary or election. It is now virtually certain that the ten states with September primaries for Congress will now move them to August. The bill will also put pressure on the major political parties not to hold presidential conventions as late as September, as the Republicans did in 2004 and 2008.

States can request a waiver for the 2010 election, if they make a case that they can't comply that quickly. Hawaii has already applied.

Activists should monitor bills on this subject in 2010, especially in Minnesota, New Hampshire, and Rhode Island, states that say non-presidential independent candidates must submit petitions a certain number of days before the primary. If the legislatures in those states pass bills to move the primary to an earlier date, and those bills don't address independent candidate petition deadlines, the indirect consequence will be earlier petition deadlines for independents.

Courts in Alabama, Alaska, Arkansas, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Missouri, New Jersey, North Carolina, Ohio, Pennsylvania, and South Carolina have struck down laws that say non-presidential independent candidates must file before the date on which party primaries are held. A Montana case on this issue is pending.

The reason for these decisions is that equal protection protects independents from having to file earlier than the date of primary elections. States can require independent candidates to file on primary day (or the day before, because elections offices are busy on primary day), but not earlier. Also, early petition deadlines make the petitioning process unduly difficult, if the state has harsh weather during winter and early spring, or if the number of signatures for independents is quite high.

The Rhode Island legislature adjourned and didn't pass the ballot access bill, SB 203. It had passed the Senate but never got a vote in the House. It would have lowered the new party petition from 23,589 signatures, to 10,000 signatures.

Inactive voters are voters who have moved since they last registered to vote. Election officials find out about them when the post office returns postal mail, saying the address is no longer good.

On November 13, a South Dakota Circuit Judge ruled that inactive voters may sign petitions. Trucano v Nelson, Hughes Co., 32-cv-09-306.

This was not the first such decision. Maryland's highest state court had ruled in 2003 in Maryland Green Party v Board of Elections that inactive voters may sign petitions. A lower state court in Oregon had ruled in 2000 in McIntire v Bradbury that inactive voters may sign petitions unless the state had notified them that they had been put on the inactive list. A Puerto Rican court had ruled in 1985 in Puerto Rican Renewal Party v Elections Commission that inactive voters may sign petitions.

California: on November 19, a Superior Court tentatively ruled that a ballot measure for public fundingshould remain on the June 2010 ballot. The money would come from increasing fees on lobbyists, from $25 per legislative session, to $700. Lobbyists had filed the lawsuit, arguing that the First Amendment prohibits states from setting fees on lobbying that are higher than needed to cover the costs of keeping a state list of lobbyists. The Judge said that the case should be filed after the June 2010 election, in case the measure passes. Institute of Governmental Advocates v Bowen, 34-2009-80000305, Sacramento.

Maryland: on November 13, a state court heard arguments in a case on whether signatures on petitions must be a perfect match with that voter's signature on the voter registration record, as to middle initials or abbreviations. Election officials in Howard County had invalidated a referendum petition by disqualifying signatures if the voter, for example, signed "Wm." but his registration record shows "William." Norman v Howard County, 13C-09-76855.

Mississippi: on November 4, the 5^th circuit heard arguments in Moore v Hosemann, 09-60272, the case over whether 2008 Socialist Party presidential candidate Brian Moore should have been on the ballot, even though his presidential elector paperwork was ten minutes too late. One judge seemed to lean toward the state; one judge seemed to lean toward Moore; and one judge said little. State election laws only give a date on which that type of paperwork is due, not an hour.

New Jersey: on October 23, a U.S. District Court judge issued an injunction, forcing the state to let exit pollsters work at the polls closer than 100 feet. ABC v Wells, 09-cv-5275. Yet on September 30, the New Jersey Supreme Court had ruled that exit polling should not be permitted, in a case called In Re: Attorney General's Directive of Exit Polling. The case in the State Supreme Court had arisen because the ACLU wanted to hand out "voting-rights" cards to voters on their way out. The ACLU had complained that the Attorney General was letting exit pollsters work, but not the ACLU. The State Supreme Court's response was to say that no one should be within 100 feet.

Pennsylvania: on November 7, Ralph Nader again asked the State Supreme Court to hear his appeal on whether he must pay $80,000 to the people who challenged his 2004 petition. The latest appeal points out that some of the people who challenged him had just pleaded guilty for using state resources to work on the challenge to Nader's petition. In re Nomination Paper of Nader, 94 MAP 2008.

Reforming State Legislative Elections, by William M. Salka. Hard Cover, 205 pages, Lynne Rienner Publishers, 2009. $55.00.

William M. Salka is associate professor of political science at Eastern Connecticut State University. He writes on page two, "This book is primarily an investigation into why states differ in how expensive and electorally competitive their (legislative) campaigns are. If we are able to explain why campaigns are cheaper or more competitive in some states, we may also begin to understand what other states might do to improve their own legislative elections."

The values underlying the book are: (1) competitive elections for state legislative seats are good public policy; (2) it is desirable if candidates can run and win without spending very large amounts of money. Salka doesn't make the second goal explicit, but it is implicit.

Salka's research goals required him to do difficult work, because the states vary so widely. Variables include a state's culture, its wealth, whether it has weak or strong major parties, whether it has strong interest groups, whether the two major parties are closely balanced or not, and whether primary contests are common or rare. Other variables are whether the legislators are full-time or part-time, whether there are many members of the legislature or relatively few, and whether the state uses any of these ideas: term limits, multi-member districts, public funding, or severe campaign finance rules.

Although this is a book of political science research, and although it has many tables, the text and the tables are very clear. The reader is not required to be proficient in statistics in order to understand and enjoy the book.

Even though the book does not delve into ballot access laws, it has useful information for any activist who is working for easier ballot access.

This is because the book has five charts, comparing each state on how competitive its legislative elections are. The chart that summarizes all the competition variables is on page 35, and it finds that the six states with the least competitive legislative elections overall are South Carolina, Massachusetts, Arkansas, New Mexico, Illinois, and Georgia. All six of those states have repressive ballot access laws.

Massachusetts laws are particularly bad for ballot access to the primary ballot. It has the sixth highest percentage requirement to get on a primary ballot for the legislature, even before taking into consideration restrictions on which voters can sign such petitions. Unfortunately, Salka didn't do a comparative study of ballot access laws, nor a statistical analysis, and he naively says that Massachusetts ballot access laws seem easy. This causes him to wonder why Massachusetts has the second least competitive legislative elections among the 50 states.

Salka's data was gathered from elections 2001 through 2007. The only state he didn't study is Louisiana. Therefore, there is no data about "top-two" elections in the book, because Washington didn't start using "top-two" until 2008, and Louisiana data is excluded, and those are the only states that have ever used "top-two."

America Votes 28: 2007-2008, by Rhodes Cook, CQ Press, 532 pages, 8.5 inches by 11 inches. $200.

The people who publish America Votes have been faithfully putting out a new version every two years, starting in 1956. This latest volume includes election returns by county for 2007 and 2008 for President, U.S. Senator, and Governor. The county tables also include the total vote cast in that county and that county's population. It also has totals for all U.S. House seats (but not by county). It includes primary returns as well as general election returns. It includes maps of the U.S. House districts.

The book also lists everyone who appeared on the ballot in a general election for President, with the Vice-Presidential nominee, for all presidential elections starting in 1960, and gives their vote total. The authors of America Votes have traditionally done their own audits of official election returns, and in the past found errors in official state returns, and corrected them. Such errors by states are less frequent nowadays, due to computers, but because of this tradition of care, America Votes is the gold standard for accuracy for U.S. election returns.

The chart below shows the highest petition requirement (in terms of number of signatures, not percentages) that has ever been successfully met by any candidate who was seeking to be on a general election ballot. The chart only includes petitions that list a candidate on the petition.

Note that in all U.S. history, there is only one instance at which a candidate petition succeeded, if the requirement was in excess of 102,000 signatures. That was Ross Perot's petition in California in 1992. The second toughest hurdle that has ever been overcome is the old Georgia requirement in 1968, used by George Wallace. Although Wallace had a ballot label of "American Party", his 1968 Georgia petition named him, so it was a candidate petition.

The point of this chart is to illustrate the absurdity of the Connecticut public funding law that was passed in 2005, and which was held unconstitutional on August 27, 2009. The law would have required an independent candidate for Governor in 2010 to submit 224,694 valid signatures in order to receive equal public funding with the Democratic and Republican nominees. The independent would also be required to raise small contributions from the same number of people as are needed by Republicans and Democrats. But the Republicans and Democrats wouldn't need any signatures. The legislature is thinking about revising the law, but the state is also appealing the decision.

State	Year	Candidate	Ballot Label	Office	Signatures Required
Ala.	2008	Chuck Baldwin	independent	President	5,000
Alas.	1982	Dick Randolph	Libertarian	Governor	*4,880
Ariz.	2008	Ralph Nader	independent	President	21,759
Ark.	2006	Rod Bryan	independent	Governor	10,000
Calif.	1992	Ross Perot	independent	President	134,781
Colo.	1992	Ross Perot	independent	President	*5,000
Conn.	1994	Tom Scott	Independence	Governor	*11,412
Del.	1992	Ross Perot	Independent	President	2,880
D.C.	1964	Clifton DeBerry	Soc. Workers	President	*13,319
Fla.	1996	Ross Perot	Reform	President	*65,596
Ga.	1968	George Wallace	American	President	*83,339
Hi.	1992	Ross Perot	independent	President	3,686
Ida.	1980	John Anderson	independent	President	*10,323
Ill.	1975	Willie Mae Reed	Soc. Workers	Mayor of Chicago	*41,403
Ind.	1988	Lenora Fulani	New Alliance	President	31,077
Iowa	2008	Cynthia McKinney	Green	President	1,500
Kan.	2008	Ralph Nader	independent	President	5,000
Ky.	2008	Ralph Nader	independent	President	5,000
La.	1992	Ross Perot	Prudence, Action, Results	President	5,000
Me.	1976	Benjamin Bubar	Prohibition	President	*10,920
Md.	1980	John Anderson	independent	President	*55,517
Mass.	1962	H. Stuart Hughes	independent	U.S. Senator	*72,514
Mich.	2004	Ralph Nader	independent	President	*31,766
Minn.	2008	Bob Barr	Libertarian	President	2,000
Miss.	2008	Ralph Nader	independent	President	1,000
Mo.	1988	Lenora Fulani	New Alliance	President	*21,083
Mt.	1994	Steve Kelly	independent	U.S. House-at-large	10,186
Neb.	2008	Ralph Nader	independent	President	2,500
Nev.	1980	John Anderson	independent	President	*9,533
N.H.	2008	Bob Barr	Libertarian	President	3,000
N.J.	2009	Chris Daggett	independent	Governor	800
N.M.	2004	Ralph Nader	independent	President	14,527
N.Y.	1992	Norma Segal	Libertarian	U.S. Senator	*20,000
No.C.	1992	Ross Perot	independent	President	63,831
No.D.	2008	Ralph Nader	independent	President	4,000
Ohio	1946	Arla Albaugh	Socialist Labor	Governor	*30,953
Okla.	1988	Ron Paul	Libertarian	President	37,671
Ore.	1980	John Anderson	independent	President	*30,897
Pa.	1984	David Bergland	Libertarian	President	49,993
R.I.	2008	Gloria La Riva	Socialism & Liberation	President	1,000
So.C.	2008	Ralph Nader	independent	President	10,000
So.D.	1934	Knute Walsted	independent	Governor	*5,682
Tenn.	2008	Cynthia McKinney	independent	President	275
Tex.	1996	Ross Perot	independent	President	61,541
Utah	2008	Ralph Nader	independent	President	1,000
Vt.	1970	William Meyer	Liberty Union	U.S. Senator	1,611
Va.	1996	Harry Browne	Libertarian	President	*15,168
Wash.	2008	Bob Barr	Libertarian	President	1,000
W.V.	2008	Chuck Baldwin	Constitution	Constitution	*15,118
Wis.	1964	Wayne Leverenz	Socialist Workers	U.S. Senator	*5,000
Wy.	1996	Ross Perot	independent	President	*9,810

The chart refers to petitions that list a candidate running in a general election.
*An asterisk in the "signatures required" column means the law that required that candidate to get that many signatures has since been amended to require fewer signatures.

The Working Families Party, which is already ballot-qualified in Delaware, New York, Oregon, South Carolina, and for all U.S. House races in Connecticut, is about to become a ballot-qualified party in Vermont. The Vermont law requires parties to show that they have town committees in at least ten towns. There is no petition. The Working Families Party has already submitted such paperwork for six towns. The paperwork is due December 31, 2009.

PARTY	N.J. Vote	Va. Vote	N.J. %	Va. %
Constit.	- -	10,337	- -	16.77%
Green	1,549	981	2.35%	4.61%
Indp. Gr.	- -	11,914	- -	8.36%
Lib't.	775	580	2.10%	3.15%
Whig	738	- -	1.22%	- -

New Jersey and Virginia are the only states that held regularly-scheduled legislative elections in November 2009, and even they only held elections for lower house of the legislature, not for State Senate. The only minor parties that had candidates on the ballot for legislature in either of those states are mentioned above. "Indp. Gr." stands for "Independent Green Party", which is not affiliated with the Green Party. The percentages above are each party's share of the vote in the districts in which it had candidates.

Unofficial returns are: Republican Chris Christie 1,004,219; Democrat Jon Corzine 962,130; independent Chris Daggett 120,821; Libertarian Ken Kaplan 4,246; Socialist Greg Pason 1,908. Also these independent candidates: Gary Steele 2,798; Jason Cullen 2,593; Kostas Petris 2,397; David Meiswinkle 2,242; Gary Stein 1,513; Joshua Leinsdorf 919; Alvin Lindsay 695.

On November 3, 2009, Pennsylvania held a partisan statewide election for Judge, Superior Court. One Libertarian ran against four Republicans and four Democrats. The Libertarian, Marakey Rogers, polled 124,733 votes, or 8.0%. Because she exceeded the state's vote test for qualified parties, the Libertarian Party's status as a qualified party, which already was guaranteed for 2010, is now also extended through 2011. However, being a qualified party in Pennsylvania does not help with ballot access, except in special elections.

Percentages are: Michael Bloomberg 50.61% (Republican 37.64%, Independence 12.98%); William Thompson 46.04% (Democratic 43.57%, Working Families 2.47%); Stephen Christopher 1.66% (Conservative); Billy Talen .81% (Green); Frances Villar .32% (Party for Socialism & Liberation); Jimmy McMillan .24% (Rent is Too High); Joseph Dobrian .18% (Libertarian); Dan Fein .14% (Socialist Workers).

Working Families: elected two of its own nominees (who were not the nominees of any other party) to the Hartford, Ct. School Board. Also, the party elected two of its nominees (who, again, were not the nominees of any other party) to the Bridgeport, Ct. School Board.

Green: elected three Constables in New Canaan, Ct.; a Councilmember in Ithaca, N.Y.; a Councilmember in Afton, N.Y.; a Township Auditor in Falls Township, Wyoming Co., Pa.; and a Township Constable in Nippenose Township, Lycoming Co., Pa.

Libertarian: elected five nominees to Township office, in these townships: Licking, Ashland, Victory, Abbott, and Waterford. Also elected a School Director in Oil City, and Borough offices in Emlenton, Polk, and two in Houston. All of these were in Pennsylvania.

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