Ballot Access News -- February 1, 2010

U.S. SUPREME COURT WILL HEAR DOE v REED

CASE HAS POTENTIAL TO END THE "CHALLENGE" SYSTEM

On January 15, the U.S. Supreme Court agreed to hear Doe v Reed, the case from Washington on whether states should or should not release the names and addresses of people who sign petitions. The hearing may be in April 2010. If the Court doesn’t hear it in April, it won’t hear it until October, because the Court doesn’t hear oral arguments during May or June.

This will be the Court’s first ballot access case since 2008, when it upheld New York’s ballot access rules for Delegates to political party judicial nominating conventions.

If the Court rules in favor of privacy, the decision will probably be helpful to parties, groups, and candidates who must petition in order to get themselves or their ballot measures on ballots. This is true for two reasons, described below:

If Petitions Are Private, It Will be Easier to Persuade People To Sign

Some state petition forms ask signers to list information that they don’t wish to make public. Hawaii petitions require the birth date of the signer, or the last four digits of the signer’s Social Security number.

Some people are reluctant to sign petitions because they don’t want to be put on any mailing list. If they know that the information they put on the petition will not be made public, they will be more likely to sign.

Some petitions are for the purpose of putting controversial or unpopular parties or candidates on the ballot. In the past, newspapers have published the names and addresses of people who signed petitions to get the Communist Party on the ballot, or to get Henry Wallace and his Progressive Party on the ballot in 1948. More recently, radio talk shows have broadcast the names of people who signed to put initiatives on the ballot.

If Petitions Are Private, the Challenge System Will Cease to Exist

In most states, election officials check the signatures on petitions for validity. But in a few states, election officials simply assume all petitions are valid, if they have a number of signatures in excess of the legal requirement. But, in these "challenge" states, anyone is free to file a challenge to the validity of the petition. Then, an administrative agency holds hearings on whether the petition does, indeed, have enough valid signatures.

Most states that use the challenge system traditionally see very few challenges. But in New York, Pennsylvania, and Illinois, it is common for a candidate who threatens some other candidate, or some political party, or some other group, to be challenged. Therefore, the challenge system has the perverse consequence that candidates with little or no support are not challenged, because few people care if they are on the ballot or not. But candidates who do have substantial support are likely to be challenged.

For example, in Pennsylvania in 2004, no one challenged the statewide petition of the Green Party, because its presidential candidate, David Cobb, had a very small campaign. The Pennsylvania requirement in 2004 was 25,697 signatures. The Greens submitted fewer than 27,000 signatures, but they appeared on the ballot because no one challenged them. By contrast, independent presidential candidate Ralph Nader submitted 52,398 signatures in Pennsylvania, and he was challenged, and found not to have enough valid signatures. So, Nader, the candidate who placed third in the nation in 2004, was not on the ballot, whereas Cobb, who only received one-fourth as many votes as Nader, was on.

Also, in Illinois in 1948, Henry Wallace submitted 75,268 signatures to meet a requirement of 25,000. But his petition was challenged, and he did not appear on the ballot. But, the Prohibition Party, the Socialist Party, and the Socialist Labor Party, each of whom submitted fewer than 35,000 signatures, were not challenged and appeared on the ballot.

In New York in 1976, independent presidential candidate Eugene McCarthy’s petition was challenged, and he was kept off the ballot. No one challenged the New York petitions of the U.S. Labor Party, or the Socialist Workers Party, or the Libertarian Party, or the Communist Party, so they were all on the ballot. Yet McCarthy nationwide polled between four times as many votes as any other minor party or independent presidential candidate.

If the U.S. Constitution requires that petitions not be made public, then the challenge system can’t work.

There are few court precedents on the issue of privacy for petitions. The West Virginia Supreme Court in 1968 construed the election law to require privacy. In 2000, the 8^th circuit ruled that the U.S. Department of Agriculture should not make public the names and addresses of farmers who had signed a petition, asking for a vote of pork producers on whether to end a compulsory fee system to pay for advertising for pork. There are no other precedents for petition privacy.

However, the U.S. Supreme Court ruled in 1999 that states could not force petition circulators to wear badges showing their name. Also, the Court has struck down laws that require campaign leaflets to include the name of the author, and laws that required the NAACP to make public its membership list.

It is true that on January 21, the U.S. Supreme Court upheld two federal election disclosure laws. In Citizens United v Federal Election Commission, the Court ruled 8-1 that sections 201 and 311 of the McCain-Feingold law are constitutional.

Section 201 says any person who spends $10,000 on electioneering communications within a calendar year must file a statement with the FEC ("electioneering communication" means speech advocating a vote for or against a candidate). Section 311 says that televised electioneering communications funded by anyone other than a candidate must include a disclaimer that "__ is responsible for the content of this advertising."

However, there is a big difference between someone who signs a petition, and someone who spends at least $10,000 per year, or who finances a television ad.

Opponents of petition privacy say that when voters sign a petition, they engage in official government business, and therefore privacy should not apply. But when voters vote, they are engaged in official government business, and no one says that the secret ballot is illegitimate.

Opponents of petition privacy say that privacy interferes with an accurate determination that a petition either did, or did not, have enough valid signatures. But California has strict privacy policies in place for petitions, and California officials do a good job of determining whether petitions are valid or not. California probably checks the validity of more petition signatures than any other place in the world, due to the frequency with which initiative petitions (both state and local) are submitted.

Doe v Reed was filed because the Secretary of State was asked to give copies of the I-872 referendum petition to a group that wanted to post the names and addresses of all the petition signers at a web site. I-872 was a referendum to try to block a new law that let same-sex partners enjoy the benefits that Washington state gives to married couples.

ARIZONA VICTORY

On January 15, U.S. District Court Judge Susan Bolton, a Clinton appointee, issued an injunction against an Arizona law that says out-of-staters may not circulate a petition to qualify a political party for the ballot. She also enjoined the February 25 petition deadline, for 2010 only. Arizona Green Party v Bennett, 2:09-cv-2412.

Arizona had lost a similar lawsuit in the 9^th circuit in 2008, called Nader v Brewer. In response to the 2008 decision, the 2009 session of the legislature legalized out-of-state circulators, but only for independent presidential petitions. In the recent Green Party case, Arizona had said that it wouldn’t enforce the residency law for petitions to qualify a new party. However, the state petition form forces circulators to sign that they are qualified to register to vote in Arizona. The decision says, "The petition form creates just the Catch-22 Plaintiffs describe. In order for someone who is not a resident of Arizona to circulate a petition for new party recognition, he or she must choose between falsely signing the petition form or modifying it and risking invalidation of the signatures."

DEMOCRATS FIGHT EARLY PRIMARIES

On December 30, the Democratic Party’s Change Commission finished its report on presidential primaries. The report now goes to the Democratic National Committee. The Commission recommended that the party not recognize any presidential primary earlier than the second Tuesday in March., and no caucuses earlier than February 1. If the Democratic National Committee implements this report, 2012 will be quite different from 2008. In 2008, New Hampshire’s presidential primary was on January 8; Michigan’s primary was January 15; South Carolina’s was January 26; and Florida’s was January 29. Also, 21 states held primaries in February, and 4 on the first Tuesday in March.

COURT TO HEAR NADER BANK ACCOUNT CASE

As long-term readers of Ballot Access News know, Pennsylvania state courts ruled in 2004 that Ralph Nader’s ballot access petition did not have enough valid signatures. In 2005 a Pennsylvania state court ruled that Nader should pay $81,102 to cover the costs of the people who challenged his petition. This was the first time any state had ever imposed such costs on any petitioning candidate.

On May 16, 2007, the Pennsylvania state courts had sent a judgment to three banks in Washington, D.C., telling them to seize money out of Nader’s bank accounts. Nader had then filed a lawsuit in the D.C. court system, asking the D.C. court to countermand the Pennsylvania order. As a basis, Nader presented evidence that the law firm that represented the challengers had not disclosed several conflicts of interest. That law firm had done favors for several members of the Pennsylvania Supreme Court, and had not disclosed this information.

Then, on July 10, 2008, the Pennsylvania Attorney General indicted several Pennsylvania state employees for working on the petition challenge on government time, and with government computers. Notwithstanding this new evidence, the D.C. Superior Court refused to stop the transfer of Nader’s funds to the Pennsylvania challengers. One bank improperly transferred $30,000, but another bank did not, pending any appeal by Nader.

Nader did appeal to the D.C. Court of Appeals. Now, that Court has said it will hear oral arguments in the case, in either March or April. This will be the first time that any court, in either Pennsylvania or D.C., has held an oral argument at which Nader’s attorney will be able to discuss the 2007 and 2008 revelations.

Peter Camejo, Nader’s 2004 vice-presidential nominee, paid $20,000 of the Pennsylvania judgment in 2005. He died September 13, 2008.

OTHER LAWSUIT NEWS

Alaska: on January 15, the State Supreme Court ruled against a proposed initiative that asks voters if the state should seek changes in existing law to make it legal for a state to secede. The Court said such an initiative can’t be on the ballot because, if it passed, it change the state Constitution, and Alaska initiatives cannot change the state Constitution. Kohlhaas v State, S-13024.

Arizona: on January 21, U.S. District Court Judge Roslyn Silver, a Clinton appointee, enjoined the state from paying public funds to candidates for state office, under the state’s "Clean Elections" program. McComish v Brewer, cv-08-1550. The program was passed in 1998. No one argued that public funding per se is unconstitutional. The problem with the program is that it gives extra amounts of public funding to candidates who have privately-funded opponents who raise a lot of private contributions. On January 22, state filed a quick appeal to the 9^th circuit. The 9^th circuit is expected to act soon.

California: on January 13, the State Supreme Court refused to hear Clark v Bowen, S179046. This was a case filed by a Republican who wanted to run for Attorney General this year. State law won’t let him onto the Republican primary ballot because in the preceding year he was a registered Democrat.

Connecticut: on January 13, the 2^nd circuit heard two hours of oral argument in Green Party of Connecticut v Garfield, 09-3760. The first hour concerned a part of the lawsuit that has no connection with the Green Party, the ban on lobbyists and their relatives on donating to candidates for state office. The second hour concerned the parts of the public financing law that discriminate against independent candidates, and against minor parties, and in favor of Democrats and Republicans. A decision should come fairly soon. The three judges know that most people running for state office in Connecticut in 2010 are eager to know what the rules will be this year.

Florida: on January 20, a group that wishes to circulate initiative petitions at the polls asked the U.S. Supreme Court to hear its appeal. Florida law says exit pollsters may talk to voters leaving the polls, and may stand as close as 25 feet to the entrance of the polling place. But groups that want to ask voters, on their way out of the polling place, to sign a petition, must be 100 feet away. The U.S. District Court had issued an injunction in favor of the circulators, but the 11^th circuit had reversed. The case is Citizens for Police Accountability v Browning, 09-861.

Indiana: on January 25, the State Supreme Court said it will hear the state’s appeal in League of Women Voters v Rokita, the case over whether a state law, requiring voters at the polls to show government photo-ID, violates the Indiana Constitution. The state court of appeals had invalidated the law, on the grounds that the law violates Equal Protection by making exceptions for certain groups of voters.

Louisiana: on January 21, the 5^th circuit issued a 6-page opinion in Libertarian Party v Dardenne, 09-30307, saying the case is moot. Therefore, the court didn’t decide the issue, which is whether the Secretary of State had been wrong to exclude the Libertarian Party’s presidential nominee from the 2008 ballot. That outcome was odd, because the previous month, the 5^th circuit (a different panel of 3 judges) had said a very similar case from Mississippi is not moot, but must go to state court. The party will ask all the judges of the 5^th circuit to reconsider.

Maine: on December 21, a Superior Court ruled that if the Secretary of State doesn’t say within 30 days whether a referendum petition has enough valid signatures, then the petition is deemed valid. The law tells the Secretary to check the signatures within 30 days, but it doesn’t say what to do when the Secretary doesn’t get the job done in time. As a result, a tax referendum petition will now be on the June 2010 ballot. The case is Webster v Dunlap, Kennebec County, AP 09-55.

Nebraska: on January 5, a second lawsuit was filed over state limits on initiative petitions. The new case challenges a law that makes it illegal to pay initiative circulators on a per-signature basis. A case filed in December 2009 challenges the state law that bans out-of-state circulators. The new case is Bernbeck v Gale, 4:10-cv-3001. Both cases are in U.S. District Court.

South Carolina: on January 19, the State Supreme Court issued a brief, unsigned opinion in Tempel v Pratt. The case originated in 2008, when a Green Party nominee for state legislature was kept off the general election ballot because, after he won the Green Party nomination at the party’s convention, he entered the Democratic primary and lost. South Carolina lets two parties jointly nominate the same candidate. But Pratt had to sign an oath before the Democratic Party let him into its primary, and the Court construed the oath to mean that Pratt was contractually obliged not to be the Green Party nominee.

Tennessee: all the briefs are now filed in the U.S. District Court in Libertarian Party of Tennessee v Thompson, the ballot access case that was filed two years ago.

Washington: on January 5, the 9^th circuit ruled that the federal Voting Rights Act does pertain to state laws that prevent felons and ex-felons from voting. Because the evidence shows that the state’s criminal justice system does discriminate against minority racial groups, the state law that bans some ex-felons and all felons from voting does result in an abridgement of voting rights on the basis of race. Therefore, the state law banning some ex-felons, and all felons, from voting, is void. On January 12 the state asked for a stay of the ruling while it prepares an appeal. The 9^th circuit hasn’t responded yet to the request for a stay.

Washington (2): on January 22, the Democratic, Republican, and Libertarian Parties each filed an amended complaint in the lawsuit filed to invalidate the "top-two open primary" law. A trial will be held in October.

MINOR PARTY AND INDP. CANDIDATE BALLOT ACCESS LAWSUIT WINS

The chart below (in two parts) shows how many ballot access lawsuits that minor parties and independent candidates have won, in each year, starting in 1968. There were very few ballot access victories before 1968.

The total number of lawsuits is 255. Independent candidates won 63 lawsuits. The minor parties that won at least five lawsuits are: Libertarian 53, Socialist Workers 28, Green 15, New Alliance 12, Communist 11, Peoples 8 (that includes state affiliates of the Peoples Party, the Peace & Freedom Party and Liberty Union Party), Constitution Party 7, American Party/American Independent Party 7, Citizens Party 6.

By decade, the wins are: 1960’s 13; 1970’s 66; 1980’s 83; 1990’s 45; 2000’s 48. The fact that the 1970’s and 1980’s had the most wins does not mean that ballot access wins since then have been harder to win. Instead, it is a reflection that many bad ballot access laws were eliminated by courts in the 1970’s and 1980’s, so there aren’t as many targets remaining as they were thirty years ago.

Cases qualify for this list if they were filed by a minor party, or by an independent candidate running for federal office, or state office, but not local office. If election officials put a minor party or an independent candidate on the ballot, and someone opposed to that ballot access sued to get the party or the candidate off the ballot, those cases are not on the list. The intent of the list is to measure the energy and success rate of minor parties and independents, so it tracks the extent to which they took the offensive against bad laws and bad practices.

Lawsuits are on the list if the party or candidate won a decision that the attacked ballot access law is unconstitutional. Lawsuits are also on the list if the party or independent candidate won a decision that an unfavorable construction of a law was wrong, and that the law should be construed more favorably. Lawsuits are also on the list if the court put the party or candidate on the ballot, but then never bothered to make a decision later if the attacked law was unconstitutional.

Lawsuits are only on the list if they were filed in one of the 50 states. If a state changed its law favorably as a result of the lawsuit, while the lawsuit was pending, so that the court didn’t need to decide the issue, those cases are also on the list.

In case there were multiple plaintiff political parties, the party that was named first is credited with the win.

Note that this list does not include ballot access lawsuits filed by Democrats or Republicans, nor lawsuits filed by groups trying to qualify a ballot measure. Many extremely helpful ballot access lawsuits have been won by Democrats and Republicans, and by groups trying to qualify a ballot measure, of course.

The chart shows the last two digits of various calendar years at the top. There is no column for 1987, and no column for 1998, because there were no winning lawsuits those two years. A lawsuit is connected to the year in which the case was finally over, except that if a state dragged a case out by appealing to the U.S. Supreme Court, and that Court refused the case, the year of the Supreme Court refusal is not used.

The list includes cases in which the party or candidate won the right to receive write-in votes. But the list does not include cases on other election law issues, such as the ability of a party to have voters register into it, or campaign finance issues, or free lists of registered voters, or debate entry. The list does not include lawsuits concerned with order of candidates or parties on the ballot, nor cases involving internal disputes.

It is extremely likely that some cases that should be on this list have been inadvertently omitted.

NEXT ISSUE WILL CARRY SPECIAL ELECTION RESULTS

January 2010 has seen many special elections with interesting results for minor parties. Normally those returns would be on this page. The next issue will include them.

February 1, 2010 - Volume 25, Number 9