2010 WAS BEST MID-TERM ELECTION FOR MINOR PARTY AND INDEPENDENT CANDIDATES IN OVER 75 YEARS

Minor parties and independent candidates did better in the 2010 election than in any other mid-term election since the 1930’s or 1920’s, by virtually every indicator:

Election victories: candidates who were not Republican or Democratic nominees were elected to partisan federal or state office in eleven states: Alabama, Alaska, Georgia, Kentucky, Maine, North Carolina, Rhode Island, South Dakota, Tennessee, Vermont, and Wisconsin. This is the highest number of such states in any year since 1922. In 1922, there were fourteen such states. The smallest number of such states in the last 120 years was in 1954, when Connecticut and South Carolina were the only states in which voters elected anyone who wasn’t a Democratic or Republican nominee to state or federal office. In 2008, there were 7 such states: Arkansas, Maine, Massachusetts, Rhode Island, South Dakota, Vermont, and Wisconsin.

Share of Vote for Top Office: for the top office on the ballot, the share of the vote going to minor parties and independent candidates in 2010 was 5.4%. This is the highest share in a midterm year since 1934. "Top office" is Governor. If a state wasn’t electing Governor, it means U.S. Senate; for the four states that had neither of those offices, it means U.S. House.

Voter Registration: data from the 29 states that ask voters to choose a party on voter registration forms, for October or November 2010, shows only 73.5% of the voters are registered members of the Democratic and Republican Parties. This is definitely the lowest share of voters registered into the two major parties since 1980, and almost certainly the lowest ever. Before the 1910’s decade there was no such thing as registering into a party on voter registration forms.

States with a ballot-qualified party other than the Democratic and Republican Parties: there are now 35 states with a qualified party other than the Democratic and Republican Parties, the highest number of such states immediately following a midterm election since 1918. It is not a modern record for the most states following a presidential election, however; after the 1996 election, 39 states had a ballot-qualified third party.

A trial was to have started on November 15 in Washington state, in the lawsuit against the "top-two" system that Washington has used since 2008. However, on October 28, the judge postponed the trial until January 18, 2011. Neither side had asked for the delay. The judge said he was acting in the interest of judicial economy.

In other news relating to "top-two", California’s Lieutenant Governor, Abel Maldonado, only received 39.2% of the vote. He had been the Republican nominee for that office, and had been endorsed by many newspapers who said they were endorsing him because he was responsible for the "top-two" system. Minor party nominees for Lieutenant Governor polled 10.5% of the total vote for cast for that office, with Pamela Brown, the Liber
tarian, receiving 5.9% of the total vote.

The California lawsuit against two particular aspects of California’s "top-two" law, Field v Bowen, is pending in the State Supreme Court. The lower courts had refused injunctive relief, partly on the basis that "top-two" doesn’t start until 2012. However, since then, three special legislative elections have been announced for early 2011.

On September 20, a U.S. District Court in Tennessee invalidated the state’s ballot access procedure for new and minor parties to get on the ballot. The state did not appeal this ruling. It is very likely that the 2011 legislature will pass a bill for a better procedure. The Tennessee Libertarian Party is already working to find a sponsor for the same bill it supported in the 2007 session of the legislature, SB 288 and HB 626. Those two identical bills required 2,500 signatures and provided that newly qualifying parties should nominate by convention.

Alaska: on October 30, the Alaska Supreme Court ruled that a regulation that forbids polling place officials from showing the list of declared write-in candidates is unlawful, because it contradicts the election code. The election code tells polling place officials to assist voters who ask for it. The lawsuit had been filed by the Democratic and Republican Parties in an attempt to force elections officials to follow the regulation. The lower court had told elections officials not to show the list to voters who ask for it, but the Supreme Court reversed the lower court. State v Alaska Democratic Party, S-14054.

The major parties did not want voters to have any help in writing in the name of Lisa Murkowski.

Colorado: on October 27, a lower state court ruled that write-in votes should be counted when the voter forgets, or doesn’t know, to fill in the oval next to the name written in. Curry v Buescher, 10-cv-8191.

On November 16, the First Circuit ruled that Bob Barr should not have been on the Massachusetts ballot in 2008. Barr v Galvin, 09-2426.

Barr was on the ballot in Massachusetts because the Libertarian Party won a lawsuit against Massachusetts before the election. The party had submitted a petition showing George Phillies was its presidential candidate, and then had asked Massachusetts to substitute Barr’s name. Massachusetts had refused, but a U.S. District Court had ruled that the state should accept Barr’s name. Now, that decision has been reversed.

One basis for the U.S. District Court decision was equal protection. Massachusetts, and all states, lets qualified parties make revisions in its nominees for President and Vice-President. For example, in 1972, the Democratic national convention chose Thomas Eagleton for vice-president in July. But in August, the Democratic national committee changed its mind and substituted Sargent Shriver.

Therefore, the Libertarian Party argued, states must let unqualified parties revise their choice as well. Phillies had been listed on the petition because the Libertarian Party wanted to circulate the petition early in 2008, and the party’s national convention wasn’t until late May 23-26. The party couldn’t predict who its presidential nominee would be until after the convention.

Equal Protection

The First Circuit said equal protection does not apply in this case because the Libertarian Party was not a qualified party in Massachusetts in 2008. The decision says that states only need to treat qualified parties equally, and if the Massachusetts Libertarian Party wanted equal treatment, it should have seen to it that it became qualified. The decision says the party could have done that if it had increased its registration membership to 1% of the state total.

The decision does not reveal that the Massachusetts law that lets an unqualified party become a qualified party by holding registration of 1% has been in existence since 1990 and has never been used. No party other than the Democratic and Republican Parties has ever held registration membership in Massachusetts equal to 1% (the 1% registration law requires 42,000 registered members by February). Also, that argument is inapplicable to groups that are backing an independent ticket.

More fundamentally, the U.S. Supreme Court has ruled that states may not discriminate in favor of qualified parties, and against unqualified parties. The First Circuit did not discuss any of these U.S. Supreme Court opinions:

Williams v Rhodes: in 1968, the U.S. Supreme Court struck down Ohio’s petition requirement for new parties, which was 15% of the last gubernatorial vote. The Court said one reason it was striking down the 15% petition was that Ohio required a lesser percentage for an old party to remain ballot-qualified. Ohio permitted an old party to remain on the ballot if it polled 10% for Governor.

Communist Party of Indiana vWhitcomb: in 1974, four concurring justices of the U.S. Supreme Court said that a loyalty oath for new parties was unconstitutional because Indiana did not require the qualified parties to sign the oath. Justice Leroy Powell wrote, "In Williams v Rhodes, this Court held that a discriminatory preference for established parties can be justified only by a compelling state interest…It follows that the appellees’ discriminatory application of the Indiana statute denied appellants equal protection under the 14^th Amendment."

Socialist Workers Party v Rockefeller: in 1970, the U.S. Supreme Court summarily affirmed a 3-judge U.S. District Court opinion, Socialist Workers Party v Rockefeller, that said if a state gives a free list of the registered voters to qualified parties, it must give the list free to unqualified parties that are trying to get on the ballot.

Anderson v Celebrezze: in 1983, the Supreme Court said that if states let the qualified parties have until the late summer to make a final decision as to whom they are running for president and vice-president, they must give the same timing flexibility to supporters of non-major party presidential candidates.

Vagueness and Estoppel

Another reason the U.S. District Court had said Barr should be on the ballot is that Massachusetts had permitted presidential or vice-presidential substitution in the past, and the law had not changed.

Massachusetts let John B. Anderson’s independent campaign for the presidency in 1980 list Milton Eisenhower on his petition for vice-president, and then let Eisenhower withdraw and be replaced by Patrick Lucey, a former Governor of Wisconsin.

In 1995, the Legal Counsel to the Elections Division of the Massachusetts Secretary of State wrote a letter saying that presidential substitution is permitted. The letter says, "To avoid an interpretation of the election laws which burdens the constitutional rights of independent and minor party candidates for President to obtain ballot access, this office has permitted substitution before, and will continue to permit substitution."

In 2000, the Massachusetts Secretary of State told the Reform Party, which was not a qualified party, that it could use a stand-in vice-presidential candidate. Oddly, however, the Reform Party never took advantage of this, and left the stand-in vice-presidential candidate, Bill Higgins, on the ballot instead of the party’s actual vice-presidential candidate, Ezola Foster.

In 2004 the Massachusetts Secretary of State was quoted in Boston newspapers as saying that Ralph Nader could replace his vice-presidential stand-in candidate, Jan Pierce, with the actual nominee, Peter Camejo. As it happened, the Nader petition failed to get enough valid signatures in Massachusetts in 2004, so this was never finalized.

Most shocking, on October 26, 2007, the Massachusetts Libertarian Party received an e-mail from Kristen Green, an attorney with the Massachusetts Elections Division, which said, "If the Libertarian Party seeks to substitute a candidate for President who they already got signatures for on nominating papers, our Office can prepare a form that allows members of the party to request the substitution of the candidate." Yet when the party asked for the form, in June 2008, the Secretary of State refused to allow substitution! First the Secretary of State said substitution would not be allowed because George Phillies was not a bona fide candidate for the nomination. But, Phillies was an actual candidate for the nomination. That error was pointed out to the Secretary of State, but to no avail.

What did the First Circuit say about the 2007 e-mail from Massachusetts? The decision says, "It is far from clear that the Secretary has adopted inconsistent positions. After all, a statement that a party would be permitted to request substitution in certain circumstances falls short of an assurance that substitution would be allowed if requested."

As to the past times when Massachusetts said substitution is permitted, the Court said that in those other instances, the independent campaign, or the minor party, didn’t settle on its final ticket until July or August, and therefore it is rational for Massachusetts to permit substitution for such groups. The problem with that argument is that if substitution doesn’t create a problem for the state for groups that don’t finalize their ticket until August, what is the state interest in barring substitution for a group that finalizes its ticket in late May?

Barr will probably ask for an en banc rehearing in the First Circuit. The decision is by Judge Bruce Selya, a Reagan appointee, and is co-signed by Judge Michael Boudin, a Bush Sr. appointee, and Kenneth Ripple, a Reagan appointee. Judge Selya is semi-retired so he can’t vote on the request for a rehearing; and Judge Ripple can’t vote because he is visiting from another Circuit.

Two U.S. District Courts had previously ruled that if states let qualified parties substitute, states must permit substitution for others. Those cases are Anderson v Firestone, from Florida in 1980, and El-Amin v State Board of Elections, from Virginia in 1989. The First Circuit did not mention either of those cases.

Bob Barr received 13,189 votes in Massachusetts in 2008. The First Circuit decision, if it had been rendered before the election, would have injured the voting rights of those 13,189 individuals. The First Circuit does not mention the harm to those voters from its opinion, and seems to have given no thought whatsoever to the rights of voters. The opinion also fails to mention that if Massachusetts really doesn’t like substitution, it is free to authorize a petition procedure for unqualified parties to qualify themselves, with no candidates named on that petition. Most states have such petition procedures.

Judge Selya had written another First Circuit opinion, Werme v Merrill, in 1996. In that case, the New Hampshire Libertarian Party, which was a qualified party with its own primary and its own state legislators, had sued to overturn a New Hampshire law that said only members of the two largest parties could serve as polling place officials. Judge Selya had upheld that law.

On October 25, a California State Appeals Court ruled that the Secretary of State has no right to tell a qualified party whom it may nominate for President. Keyes v Bowen, C062321, 3^rd district. Alan Keyes had sued the Secretary of State for failing to investigate whether Barack Obama meets the constitutional qualifications. The decision says that the Secretary of State has no authority to tell a party whom to nominate for President, and implied that Frank Jordan, who was Secretary of State in 1968, was wrong when he refused to let the Peace & Freedom Party place Eldridge Cleaver on the ballot. At the time, Cleaver was under age 35.

On November 2, the voters of New York city passed Charter Revision Two, which lowers the number of signatures for candidates for partisan city office. For independent candidates and the nominees of unqualified parties, the city council requirement drops from 2,700 signatures to 450; the citywide offices drop from 7,500 to 3,750; Borough President drops from 4,000 to 2,000. Petitions for primary ballot access will also require these numbers.

On November 2, Oklahoma voters passed Question 750, to lower the number of signatures for initiatives in mid-term years. The Constitution, before that vote, required signatures of 8% of the last vote cast. The new law will require 8% of the last gubernatorial vote. That change will result in a reducti
on of about 40% in midterm years. This is because voter turnout is always higher in presidential years than in midterm years.

Ironically, in midterm years, the number of signatures for an initiative will now be about the same as the number of signatures for a new party. The petition for a party is 5% of the last vote cast. If State Question 750 had already been in effect in 2010, the initiative requirement would have been 74,117 signatures, and the number actually required for a minor party to be on in 2010 was 73,134.

On November 6, the District of Columbia Board of Elections ruled that if a party polls enough votes to remain ballot-qualified in one election, but then fails to receive enough votes in the following election, it remains ballot-qualified for one more election. Without this ruling, the Republican Party would have been off the ballot in 2012, because none of its 2010 nominees polled 7,500 votes for an office that counts toward the vote test.

~	Dem.	Rep.	Indp, misc	AIP/Const	Green	Libt	Reform	Wk Fam	other
Alaska	74,644	129,810	260,891	?	2,335	8,984	?	?	18,606
Arizona	1,002,937	1,131,802	982,477	?	4,820	24,382	?	?	– –
Calif.	7,620,240	5,361,875	3,603,612	413,032	113,835	91,111	24,402	0	57,776
Colorado	812,389	874,962	771,556	2,731	5,015	10,549	?	?	– –
Conn.	749,889	418,297	842,341	218	1,816	1,295	90	132	7,993
Delaware	293,415	183,301	141,600	287	566	858	124	624	2,673
Dt. Col.	336,118	29,728	74,607	?	4,333	?	?	?	– –
Florida	4,631,068	4,039,259	2,186,246	1,112	5,827	17,888	2,473	?	333,511
Iowa	663,215	618,614	701,320	– –	624	1,416	– –	– –	– –
Kansas	460,243	766,422	486,979	– –	– –	10,088	1,280	– –	– –
Kentucky	1,624,361	1,067,537	191,458	180	458	1,661	72	?	48
Louis’na	1,484,697	768,786	673,116	?	1,292	3,877	1,441	?	– –
Maine	322,848	272,871	345,694	?	32,442	?	?	?	– –
Maryland	1,957,989	925,722	567,732	608	8,403	8,996	?	?	– –
Mass.	1,528,974	474,798	2,162,840	83	5,619	15,857	290	46	2,400
Nebraska	380,292	549,274	212,532	?	?	345	?	?	– –
Nevada	470,919	410,811	179,029	48,997	3,013	6,807	?	?	– –
N. Hamp.	268,336	272,780	382,825	?	?	?	?	?	– –
N. Jersey	1,755,501	1,074,364	2,441,291	136	1,001	1,387	65	?	348
N. Mex.	570,659	367,638	207,077	115	5,271	2,240	?	?	2,188
N. York	5,853,921	2,920,366	2,390,178	?	22,959	2,680	?	40,878	616,637
No. Car.	2,763,164	1,949,972	1,451,257	?	?	8,683	?	?	– –
Okla.	1,000,763	847,465	239,138	?	?	?	?	?	– –
Oregon	865,084	665,780	441,549	3,222	8,710	13,469	?	3,187	65,333
Pennsyl.	4,311,570	3,132,447	978,274	2,631	16,686	38,035	?	?	– –
Rhode Is.	286,612	72,603	340,081	?	?	?	?	?	330
So. Dak.	194,204	237,809	85,932	336	?	1,080	?	?	– –
Utah	136,423	613,969	775,126	2,879	?	4,110	?	?	– –
W. Va.	656,689	350,357	207,857	102	1,120	1,360	?	?	– –
Wyo.	63,594	170,719	34,482	?	?	1,288	?	?	– –
TOTAL	43,140,758	30,700,138	24,359,097	476,669	246,145	278,446	30,237	44,867	1,107,843
Percent	42.98%	30.58%	24.27%	.47%	.25%	.28%	.03%	.04%	1.10%

The parties in the "Other” column are: Alaska, 14,240 Alaskan Independence, 2,691 Republican Moderate, 1,675 Veterans; Peace & Freedom in California; in Connecticut, 6,849 Independent Party and 1,073 Independence Party; in Delaware, 2,106 Independent Party, 298 Blue Enigma, 269 Socialist Workers; in Florida, too many to list, including 262,116 Independent Party, 57,761 Independence Party, 514 Tea Party, 584 Socialist, 326 Socialist Workers; Socialist Workers in Kentucky; these Massachusetts parties: Socialist 206, Natural Law 18, Prohibition 7; Conservative in New Jersey; these New York parties: Independence 426,005, Conservative 148,412, Soc. Workers 82; these Oregon parties: Independent 63,396, Progressive 1,937; Moderate in Rhode Island.

Totals October 2008 were: Dem. 43,933,901 (43.62%), Rep. 30,944,590 (30.72%), Indp. & misc. 24,157,259 (23.98%), AIP/Constitution 438,222 (.44%), Green 255,019 (.25%), Libertarian 240,328 (.24%), Reform 32,961 (.03%), other parties 675,980 (.67%).

Totals October 2004 were: Dem. 37,301,951 (42.19%), Rep. 28,988,593 (32.79%), Indp. & misc. 20,471,250 (23.15%), Constitution 320,019 (.36%), Green 298,701 (.34%), Libertarian 235,521 (.27%), Reform 63,729 (.07%), Natural Law 39,670 (.04%), other parties 695,639 (.79%).

Totals October 2000 were: Dem. 38,529,264 (43.84%), Rep. 28,813,511 (32.78%), Indp. &am
p; misc. 18,999,126 (21.62%), Constitution 348,977 (.40%), Libertarian 224,713 (.26%), Green 193,332 (.22%), Reform 99,408 (.11%), Natural Law 61,405 (.07%), other parties 620,668 (.71%).

Totals October 1992 were: Dem. 35,616,630 (47.76%), Rep. 24,590,383 (32.97%), Indp. & misc. 13,617,167 (18.26%), Green 102,557 (.14%), Libertarian 100,394 (.13%), other parties 554,668 (.74%).

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	REF/INDP	Party	Indp.
Ala.	44,829	5,000	0	0	0	0	June 1	Sep. 6
Alaska	(reg) 7,406	#3,262	already on	2,335	50	0	June 1	Aug. 8
Ariz.	23,041	(est) #27,000	already on	4,820	0	0	Mar. 1	Sep. 7
Ark.	10,000	#1,000	0	0	0	0	June 30	Aug. 1
Calif.	(reg) 103,024	172,859	already on	already on	in court	24,402	Jan. 2	Aug. 10
Colo.	(reg) 1,000	#pay $500	already on	already on	already on	0	June 1	June 19
Conn.	no procedure	#7,500	can’t start	can’t start	can’t start	already on	– – –	July 13
Del.	(est.) (reg) 650	(est.) 6,500	already on	563	283	already on	Aug. 21	July 15
D.C.	no procedure	(est.) #3,900	can’t start	already on	can’t start	can’t start	– – –	Aug. 21
Florida	be organized	112,174	already on	already on	already on	already on	Sep. 3	July 15
Georgia	57,956	#57,558	already on	can’t start	can’t start	can’t start	July 10	July 10
Hawaii	691	#4,536	already on	0	0	0	Feb. 22	Sep. 7
Idaho	13,102	1,000	already on	can’t start	already on	can’t start	Aug. 30	Aug. 31
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	– – –	June 25
Indiana	no procedure	#34,195	already on	0	0	0	– – –	June 30
Iowa	no procedure	#1,500	0	0	0	0	– – –	Aug. 17
Kansas	16,776	5,000	already on	0	0	already on	June 1	Aug. 6
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	– – –	Sep. 4
La.	(reg) 1,000	#pay $500	already on	already on	0	already on	May 17	Sep. 4
Maine	28,639	#4,000	0	already on	0	0	Dec 8, 11	Aug. 9
Md.	10,000	(est.) 35,000	2,000	9,000	0	0	Aug. 6	Aug. 6
Mass.	(est) (reg) 40,000	#10,000	15,857	already on	0	0	Feb. 1	July 31
Mich.	32,261	30,000	already on	already on	already on	already on	July 19	July 19
Minn.	105,352	#2,000	0	0	0	already on	May 1	Aug. 14
Miss.	be organized	1,000	already on	already on	already on	already on	Jan. 6	Sep. 7
Mo.	10,000	10,000	already on	0	already on	0	July 30	July 30
Mont.	5,000	#5,000	already on	0	0	0	Mar. 15	Aug. 1
Nebr.	4,880	2,500	already on	0	0	0	Aug. 1	Aug. 28
Nev.	7,013	7,013	already on	0	already on	0	July 2	July 6
N. Hamp.	13,698	#3,000	0	0	0	0	Aug. 8	Aug. 8
N.J.	no procedure	#800	0	0	0	0	– – –	July 30
N. M.	3,009	18,053	already on	0	0	already on	Apr. 2	June 6
N.Y.	no procedure	#15,000	unknown	already on	can’t start	already on	– – –	Aug. 21
No. Car.	85,379	85,379	already on	0	0	0	May 16	June 14
No. Dak.	7,000	#4,000	0	0	0	0	Apr. 13	Sep. 7
Ohio	no law exists	5,000	already on	already on	already on	0	unsettled	Aug. 8
Okla.	51,739	43,890	0	0	0	0	May 1	July 15
Oregon	21,804	18,279	already on	8,710	already on	already on	Aug. 28	Aug. 28
Penn.	no procedure	(es) #25,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 1
R.I.	17,115	#1,000	0	0	0	already on	June 1	Sep. 7
So. Car.	10,000	10,000	already on	already on	already on	already on	May 6	July 15
So. Dak.	7,928	3,171	0	0	0	0	Mar. 27	Aug. 7
Tenn.	no law exists	25	0	0	0	0	unsettled	Aug. 16
Texas	49,729	80,778	already on	already on	can’t start	can’t start	May 20	May 14
Utah	2,000	#1,000	already on	0	already on	0	Feb. 15	Aug. 15
Vermont	be organized	#1,000	already on	0	0	0	Jan. 1	Jun 14
Virginia	no procedure	#10,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 24
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 28
West Va.	no procedure	#7,135	0	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	can’t start	can’t start	already on	can’t start	June 1	Sep. 7
Wyo.	3,740	3,740	already on	can’t start	can’t start	can’t start	June 1	Aug. 28
TOTAL STATES ON			27	14	12	13	“	`

#partisan label is permitted on the ballot (other than "independent").
"REF/INDP" means a centrist ballot-qualified party that is named either Reform, Independence, Independent, or Natural Law. These parties aren’t necessarily part of a national party.

David Nolan, the Libertarian Party’s chief founder, and a much-loved and respected figure in the party, was in a car crash on November 20, and he died on November 21. He apparently suffered a stroke while he was driving, and no one else was in the car to take the wheel. Nolan had continued to be a leader of the party, and was age 66. He had been the party’s nominee for U.S. Senate in Arizona last month, and he had participated in a televised debate with U.S. Senator McCain, as well as their Green and Democratic Party opponents. He had polled almost 5% in that Senate race. He was on the national committee.

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