THREE STATES REINSTATE EARLY PETITION DEADLINES THAT HAD BEEN THROWN OUT IN COURT EARLIER

During June, the state legislatures of Alabama, Nevada, and Ohio passed bills setting early petition deadlines for petitions to put parties on the ballot. Remarkably, in all three states, those same deadlines (or somewhat later deadlines) had already been held unconstitutionally early. In the case of Alabama and Nevada, the bills have already been signed into law by the Governor.

Alabama

On June 1, HB 425 became law. It moves the petition deadline for newly qualifying parties, and non-presidential independent candidates, from June to the second Tuesday in March, in presidential election years. The purpose of the bill was not to move the deadline; the purpose of the bill was to move the primary (for all office) in presidential years from June to March. The bill eliminated the February presidential primary.

But because the petition deadline is tied to the date of the primary, by moving the primary three months earlier, the legislature caused the petition deadline to become three months earlier. It is not known if the legislature noticed the effect on minor party and independent candidate petition deadlines.

In Alabama, as in most states, newly-qualifying parties nominate by convention, not by primary. Alabama has a "sore loser" law preventing anyone who ran in the primary from becoming an independent candidate (for office other than President). Therefore, there is no state interest in a petition deadline as early as March.

In 1990, a U.S. District Court ruled that the old petition deadline, 60 days before the primary, was unconstitutional.

In 1991, the 11^th circuit unanimously affirmed that decision, New Alliance Party of Alabama v Hand, 933 F.2d 1568. Thus, that decision struck down an April petition deadline. At the time, the number of signatures was 1% of the last gubernatorial vote, and there had been many minor party and independent candidates on the ballot during the preceding ten years. The court opinion noted that the April deadline has not blocked all minor party and independent candidates from the ballot, but still struck it down because it couldn’t see any good reason for the deadline to be as early as April.

It is very likely that a new lawsuit will be filed against the March petition deadline, perhaps by the Constitution, Green and Libertarian Parties. That case will be stronger than the 1990 case, because in the last eight years, there have been no minor party or independent candidates on the statewide ballot (except that independent presidential candidates have qualified, because they only need 5,000 signatures and that petition is not due until early September). In 2010, Alabama was one of only five states with no minor party or independent candidates on the ballot for statewide office.

Another reason the new lawsuit will be stronger than the 2012 lawsuit is that the 2012 lawsuit involves presidential elections. Precedents against early petition deadlines involving presidential elections are even stronger than precedents involving elections for other office, especially in the 11^th Circuit.

And, of course, a third reason the new lawsuit will be stronger than the 1990 case is that the new deadline, in March, is earlier than the April deadline that had been struck down.

Nevada

On June 17, Governor Brian Sandoval signed AB 81, which moves the petition deadline for a new party to mid-April. The bill itself says the new petition deadline is in mid-May, but there is another law (not amended by AB 81) that says the actual deadline for the petition to be finished is five weeks before the deadline. In other words, there is one deadline for the signatures to be submitted to the county clerks, and then a later deadline for the county clerks to get the results of the validation to the Secretary of State. The true deadline, from the point of view of the petitioners, is the April deadline, because that is when their petition must be completed.

No one in state government seems to have noticed that in 1986, a U.S. District Court in Nevada determined that the old petition deadline was in April (the law had been murky) and that April was too early. The case was Libertarian Party of Nevada v Swackhamer, 638 F.Supp 565. Any new case filed against the Nevada April deadline will be even stronger than the 1986 case, because back then, newly-qualifying parties nominated by primary, so Nevada had an ostensibly good reason for requiring the petition to be submitted that early. Ever since 1987, Nevada law has provided that newly-qualifying parties nominate by convention, so there is even less reason for an early deadline. Also, the 1986 case involved a midterm election. Any new lawsuit against the deadline is likely to be filed in 2012, a presidential election year. As noted above, early deadlines are even less legally defensible if they involve presidential elections. The Green Party is not on the ballot and might bring such a lawsuit.

Ohio

On June 23, the Ohio Senate passed HB 194. It moves the petition deadline for newly qualifying parties from 120 days before the primary to 90 days before, and it moves the primary in presidential election years from early March to early May.

The bill is not completely through the legislature yet. The Senate made some unrelated changes to the bill, so now it must go back to the House. But the bill is overwhelmingly likely to be approved and signed into law. Technically, this bill improves the deadline; nevertheless it is extremely disappointing. The old deadline, November of the year before the election year, had been held unconstitutional in 2006 by the 6^th circuit. That decision was Libertarian Party of Ohio v Blackwell, 462 F.3d 579. The deadline set by the bill will be early February of election years.

The U.S. Supreme Court had struck down Ohio’s petition deadline for new parties in 1968 in Williams v Rhodes, 393 U.S. 23, and that deadline had been identical to the deadline contained in HB 194. Williams v Rhodes had seemed to invalidate all of Ohio’s old ballot access laws for minor parties and independents, and it is not always easy to analyze Williams as a precedent for specific ballot access restrictions. Nevertheless, the facts of Williams (when one reads the briefs on both sides) make it clear that the early petition deadline was the only barrier standing in the way of George Wallace’s American Independent Party from getting on the Ohio 1968 ballot. The American Independent Party had collected enough valid signatures to be on the ballot in 1968; the only problem was that they were not obtained until July, and the law required them in February.

Another basis for believing that Williams v Rhodes specifically invalidated the February petition deadline is that inanother U.S. Supreme Court ballot access opinion, the Court said that the Ohio deadline in 1968 had been "unreasonably early."

The use of "unreasonable" is very powerful; it means that a February deadline can’t even pass the rational basis test, much less the balancing test, or the compelling state interest test.

It is very likely that a new lawsuit will be filed against the new February petition deadline. Ohio will try to defend its deadline by saying that state policy is to provide a primary for newly-qualifying parties. However, only eight states mandate that newly-qualifying parties nominate by primary, and Ohio itself did not follow this policy in any year before 1947. Furthermore, due to minor parties winning various ballot access lawsuits against Ohio in 1970, 1976, 1996, and 2008, Ohio put various minor parties on the ballot in those years and they didn’t nominate by primary.

It is also theoretically possible for a state that insists that newly-qualifying parties nominate by primary, to arrange a later primary for newly-qualifying parties than for old parties. Such a special, later primary would be unusual, but it need not be unduly expensive for elections officials, especially if the newly-qualifying party volunteers to pay for its own primary, which could be conducted cheaply by postal ballot, if the party has a list of the names and addresses of its members. The internet could facilitate that process.

Why Early Petition Deadlines for New Parties are Unconstitutional

The Supreme Court has not been particularly helpful to minor parties that lack very much voter support, when the Court has considered the constitutionality of ballot access laws. It has let the states impose petition requirements as high as 5% of the number of registered voters. But the Court has always been willing to strike down early petition deadlines, because the Court has noted that in U.S. history, new parties with substantial voter support have often been created during election years.

The Republican Party was created on July 6, 1854. Teddy Roosevelt’s Progressive Party did not even begin to form until after the 1912 Republican national convention held June 18-22. Robert La Follette didn’t launch his Progressive presidential campaign until July 4, 1924. The Union Party of 1936 (the party organized by followers of Huey Long, Father Charles Coughlin, and the Townsend Plan for old-age pensions) was not formed until June, and did not nominate its ticket until August 13, 1936. The States Rights Democratic Party was not formed until after the Democratic convention of July 12-14, 1948.

In 1988, the U.S. State Department charged that Azerbaijan’s new election law, requiring parties to have formed at least six months before an election, was a violation of democratic norms. Generally speaking, democratic nations around the world do not require parties to organize, or to nominate their candidates, more than two months before any particular election. And, before there were any government-printed ballots in the United States, parties were free to organize any time they wished, and a party that organized only a month before an election was not barred from running candidates in that election.

On June 28, the U.S. Supreme Court refused to hear Green Party of Connecticut v Lenge, 10-795. The lawsuit challenged Connecticut’s public funding law, which makes it far easier for a Democrat or a Republican to obtain public funding for state office than for an independent candidate or the nominee of a new party. The Court thus continues its 20-year policy of refusing all cert petitions brought by a minor party or independent candidate (other than an instance in 1996, when a Georgia Libertarian challenged a law requiring candidates to take a drug test).

On June 21, a Maryland state court issued an order in Libertarian Party of Maryland v Maryland State Board of Elections, 02-c-11-160371, Anne Arundel County. The order puts the Libertarian Party and the Green Party on the 2012 and 2014 ballots. The two parties had each submitted a petition to place themselves on the ballot, but the state had checked the signatures and said neither petition had at least 10,000 valid signatures.

The state had rejected signatures if the middle initial of the signer was missing, and yet that same voter had used his or her middle initial on the voter registration form. Also, if any signer had signed the petition twice, neither signature counted. The state admitted that if it hadn’t used such exacting standards, it could identify at least 10,000 registered voters on each petition.

The state probably won’t appeal, although the state has until July 21 to decide whether to appeal or not.

Delaware: on June 16, the Senate unanimously passed SB 118, which indirectly helps ballot access for minor parties. The only method for parties to become ballot-qualified, or to remain ballot-qualified, is to have registration membership of approximately 625 voters. However, Delaware law won’t let voters switch parties during the months before either the presidential primary, or the primary for other office. Parties are handicapped during periods when voters can’t switch parties, because the only new members they can get are people who not been registered to vote. The bill shrinks the "no-switch" zone, so that voters will be able to switch parties at any time during odd years, and also lets them switch parties in January and February of even-numbered years.

Louisiana: on June 20, the legislature passed HB 533, an omnibus election law bill. Among other things, it lets independent candidates have the ballot label "independent". Current law already gives that ability to independent presidential candidates, but not independent candidates for other office. The bill also removes the names of presidential elector candidates from ballots.

Maine: on June 6, Governor Paul LePage signed LD 142, which eases the organizational requirements for a ballot-qualified party. The old law said a party must hold a caucus in at least one town in each of Maine’s 16 counties. The new law says such caucuses only are needed in any 14 counties.

Maine (2): on June 8, the Senate killed LD 545, even though it had passed the House unanimously. The bill lowered the number of signatures for a candidate to get on the primary ballot of a small ballot-qualified party. Currently anyone needs 2,000 signatures to get on a primary ballot for Governor or U.S. Senator, and only members of his or her party can sign. This law is unfair to small parties that are required to nominate by primary. The only ballot-qualified party currently, besides the Democratic and Republican Parties, is the Green Party, and members of the Green Party face an extremely difficult task, finding 2,000 valid signatures when only 37,000 voters in the state are eligible to sign. The bill would have lowered the requirement to 750 signatures, for small parties.

North Carolina: on June 7, the House passed HB 32, which lowers the number of signatures for minor parties and independent candidates. The legislature adjourned before the Senate could consider it, but the special session starting in July is free to consider election law bills, and the bill might pass the Senate in the special session. Also, even if it doesn’t, North Carolina has two-year legislative sessions, and the bill can be considered by the Senate in 2012.

Nevada: AB 81, described on the front page story, does additional harm to minor parties besides setting an earlier petition deadline. The bill also deletes the easier alternative method for minor parties to appear on the ballot. The bill leaves intact the method that requires a petition of 1% of the last U.S. House vote cast to qualify a new party (that method requires over 7,000 valid signatures). But the bill deletes the easier alternative, that an unqualified party can also place a nominee on the ballot for statewide office, with the party label, with only 250 signatures. That easier alternative had been passed in 1999, but that easier method had never applied to presidential candidates, just candidates for other office.

New Hampshire: on June 8, the legislature killed SB 193, which would have made ballot access more difficult for minor parties. Existing law requires a group to submit a petition signed by 3% of the last gubernatorial vote, to become a ballot-qualified party and nominate by convention. The bill would have said that the petition language would tell potential signers that if they sign the petition, and the petition succeeds, then all the signers would automatically have their voter registration records changed to list them as members of that new party. This would have made it more difficult to get signatures. The existing law is so harsh, no one has used it since 2000.

Texas: on June 17, Governor Rick Perry signed SB 100. It moves the runoff primary from April to the fourth Tuesday in May, which has the indirect result of moving the non-presidential independent candidate petition deadline from May to June. In 2012, that petition deadline will be June 21. Oddly, the independent presidential petition deadline continues to be May 14. It will be difficult for Texas to defend the independent presidential petition deadline, when it is more than five weeks earlier than the independent candidate petition deadline for other office.

California: U.S. District Court Judge Otis Wright canceled oral argument in Chamness v Bowen. Otherwise, the argument would have been on June 13. This is the case that argues that two aspects of the top-two system are unconstitutional:
the provision saying write-in votes can’t be counted in November (even though the law requires write-in space to be printed on ballots); and the provision saying members of qualified parties can list their party on the ballot, but members of unqualified parties can’t. The judge will rule based on the briefs.

Illinois: on June 6, the U.S. Supreme Court refused to hear Burris v Judge, 10-367. This is the lawsuit brought by former U.S. Senator Roland Burris, who wanted to run in the special election for U.S. Senate in November 2010, for the two-month term. The 7^th circuit had ruled that a special election should be held, but that the only candidates who could be on the ballot were the four candidates who were already on the ballot for the regular term. Burris wasn’t running for the regular term. The Supreme Court obviously considered taking this case, because it had been before them since late last year.

Maine: on June 9, a 3-judge U.S. District Court ruled that the state must draw new boundaries for its two U.S. House districts in time for the 2012 election. Maine had felt it could postpone doing that until 2013. Desena v State, 1:11-cv-117.

Nevada: on June 28, the State Supreme Court heard oral arguments in Nevada State Democratic Party v Nevada Republican Party, 58404. The issue is whether the special U.S. House election in September 2011 should be one in which qualified parties nominate candidates (also independent candidates could get on with 250 signatures), or whether the election should be held without any party nominees, and individuals run as individuals (but with party labels).

New Hampshire: on June 20, a state court ruled that there will be a trial in Blevens v Gardner, probably in January. The state had tried to get the case dismissed without a trial. The issue is whether the state must rotate the names of all candidates on the general election ballot so that they each get an equal opportunity to appear in the top spot on the ballot.

New York: on June 15, the Libertarian Party’s lawsuit in state court, Redlich v New York State Board of Elections, was dismissed on procedural grounds (the court said the lawsuit had been filed too late). This is the case in which the party argued that it might have polled 50,000 votes for Governor (and thus become a qualified party) if the state hadn’t squeezed the statewide Libertarian nominees into the same party column with the nominees of another minor party.

Pennsylvania: on June 2, the Constitution, Green, and Libertarian Parties asked for a rehearing, in the 3^rd circuit, in Constitution Party of Pennsylvania v Cortes. In May the 3^rd circuit had said the parties lack standing to challenge the state’s unique system of charging fees of up to $110,000, if they submit a petition that turns out not to have enough valid signatures. The decision also says they also don’t have standing to sue over the requirement for ongoing ballot status, that they have registration of 15% of the state total; and that they don’t have standing to challenge the policy in some counties to discard all write-in votes.

Vermont: a state court will hold a trial July 14-15 in Trudell v Markowitz, the lawsuit over the constitutionality of the June petition deadline for independent candidates.

Washington: the Republican, Democratic and Libertarian Parties have all filed briefs in the 9^th circuit in Washington State Republican Party v Washington State Grange, the case that argues the "top-two" system is unconstitutional. The other side will file briefs in July.

On May 25, Wisconsin Governor Scott Walker signed AB 7, which repeals the straight-ticket device.

In New Mexico, there is nothing in the election law authorizing the device, and the new Secretary of State, Diana Duran, has told the public that she will not put it on future ballots.

In North Carolina, the Senate passed SB 411, and it repeals the law authorizing the device. The bill did not pass the House before the legislature adjourned, but it could pass in the special session during July.

On June 13, South Dakota Election Director Aaron Lorenzen ruled that out-of-state petition circulators may work on a petition to place a party on the ballot. The Libertarian Party had sought this ruling, and expects to begin petitioning to get itself on the ballot soon, using professional circulators. South Dakota law prohibits out-of-state circulators for all other types of petition.

California: on June 8, the Senate Elections Committee passed AB 459 by a vote of 3-2.

Delaware: on June 7, the House passed HB 55 by a vote of 21-19.

New York: on June 7, the Senate passed S4208 by a vote of 49-10. The New York Senate is the first legislative chamber in the nation with a Republican majority to have passed a National Popular Vote Plan bill. However, on June 24, the New York legislature adjourned for the year, and the Assembly never voted on the bill.

Rhode Island: on June 16, the State Senate passed SB 164 by a vote of 30-4. A majority of Republicans voted for it.

< td width="10%" valign="TOP">

can’t start

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	AM. ELE	Party	Indp.
Ala.	44,829	5,000	0	0	0	0	*Mar. 13	Sep. 6
Alaska	(reg) 7,406	#3,271	already on	*2,147	*9	finished	June 1	Aug. 8
Ariz.	23,041	(est) #27,000	already on	already on	0	*already on	Mar. 1	Sep. 7
Ark.	10,000	#1,000	*already on	0	0	0	June 30	Aug. 1
Calif.	1,030,040	172,859	already on	already on	in court	*1,100,000	unsettled	Aug. 10
Colo.	(reg) 1,000	#pay $500	already on	already on	already on	0	*Jan. 8	*June 4
Conn.	no procedure	#7,500	can’t start	can’t start	can’t start	can’t start	– – –	July 13
Del.	(est.) (reg) 650	(est.) 6,500	already on	*513	*248	0	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	335,630	112,174	already on	already on	already on	*unsettled	Sep. 3	July 15
Georgia	57,956	#57,558	already on	0	0	0	Aug. 6	Aug. 6
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	finished	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	0	May 17	Sep. 4
Maine	28,639	#4,000	0	already on	0	0	Dec 8, 11	Aug. 8
Md.	10,000	(est.) 35,000	*already on	*already on	0	0	Aug. 6	Aug. 6
Mass.	(est) (reg) 40,000	#10,000	15,857	already on	0	0	Nov. 1, 11	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	0	May 1	Aug. 14
Miss.	be organized	1,000	already on	already on	already on	0	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	already on	*April 13	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	0	Apr. 2	June 6
N.Y.	no procedure	#15,000	*can’t start	already on	can’t start	can’t start	– – –	Aug. 21
No. Car.	85,379	85,379	already on	0	3,000	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	March 1	July 15
Oregon	21,804	18,279	already on	*8,950	already on	0	Aug. 28	Aug. 28
Penn.	no procedure	(es) #25,000	can’t start	can’t start < /td>	can’t start	can’t start	– – –	Aug. 1
R.I.	17,115	#1,000	0	0	0	0	June 1	Sep. 7
So. Car.	10,000	10,000	already on	already on	already on	0	May 6	July 15
So. Dak.	7,928	3,171	0	0	0	0	Mar. 27	Aug. 7
Tenn.	40,042	275	0	0	0	0	April 5	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	– – –	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	0	*1,300	0	June 1	Aug. 28
TOTAL STATES ON			*29	*16	12	*3	“	`

#partisan label permitted (other than "independent").
"AMER ELE" = Americans Elect Party.
*change since June 1 issue.

On May 24, New York filled the vacant U.S. house seat, 26^th district, in the western end of the state. The results were: Democratic 42.77%; Republican 32.15%; Tea Party 9.03%; Conservative 8.18%; Working Families 4.67%; Independence 2.14%; Green 1.06%.

When this same seat had been up in November 2010, the vote had been: Republican 58.99%; Democratic 26.39%; Conservative 9.41%; Independence 5.21%.

At the 2011 election, the Working Families Party had cross-endorsed the Democrat, and the Conservative and Independence Parties had cross-endorsed the Republican.

Twelve states print a party logo on general election ballots, including Michigan. Above is the party logo for Americans Elect, submitted to the Michigan Secretary of State for inclusion on future ballots.

On June 22, the Prohibition Party held a national convention in Cullman, Alabama, and nominated Jack Fellure for President, and Toby Davis for vice-president. Fellure, 79, is a West Virginia retired engineer. Davis, 45, is a Mississippi pastor. Delegates attended from Alabama, Florida, Mississippi, Pennsylvania, Tennessee, and West Vi
rginia.

American Third Position is a political party formed several years ago. It has qualified for the special election in West Virginia for Governor, to be held October 2011. Its gubernatorial candidate is Harry Bertram. He obtained the needed 1,720 signatures. The normal petition requirement was reduced, because the petitioning period was shorter than usual.

American Third Position believes that white people are discriminated against in the United States, and says it will fight this discrimination.

John Hospers, the first Libertarian Party presidential nominee, died on June 12. He was 93, and was a retired professor of philosophy. Although he was only on the ballot in two states in 1972, he received an electoral vote.

Four states elect state legislators in the odd years before presidential elections: Louisiana, Mississippi, New Jersey, and Virginia. This year, the filing deadline has not passed yet in Louisiana and Virginia. In Mississippi, the Libertarian Party has four legislative nominees; the Reform Party has three; and the Constitution Party has one. In New Jersey, the Libertarian Pary has four; the Green Party has two; and the Constitution Party has two.

Besides the parties included in the 2012 petitioning chart, the Socialist Party has collected 2,000 signatures in Michigan, and the Country Party has collected 150 signatures in Wyoming.

---

SUBSCRIBING TO BAN WITH PAYPAL

If you use Paypal, you can subscribe to B.A.N., or renew, with Paypal. If you use a credit card in connection with Paypal, use richardwinger@yahoo.com. If you don’t use a credit card in conjunction with Paypal, use sub@richardwinger.com.