FOURTH CIRCUIT ISSUES FIRST FAVORABLE MINOR PARTY OR INDEPENDENT CANDIDATE RULING IN 21 YEARS

On July 6, the U.S. Court of Appeals, 4^th Circuit, issued a 14-page ruling that virtually guarantees that the Virginia residency requirement for circulators will be held unconstitutional. The decision is Lux v Judd, 10-1997. It overrules two U.S. District Court decisions issued last year, the one in this case, and one in a case with identical issues called Libertarian Party of Virginia v Virginia State Board of Elections.

The two lower courts last year had upheld the Virginia law that makes it illegal for anyone to circulate a candidate petition outside of his or her home U.S. House district. Both U.S. District Court decisions, the Lux decision, and the Libertarian Party decision, had said the law is needed to prevent the ballot from being too crowded. This conclusion ignored the evidence in these cases that in the entire history of government-printed ballots in Virginia, there has never been a U.S. House race with more than six candidates on the general election ballot, even though before 1936, independent candidates, and the nominees of unqualified parties, did not need any signatures or any fee to get on the ballot.

The July 6, 2011 decision of the 4^th circuit rebuts the "crowded ballot" argument. It says that the requirement that an independent or unqualified party nominee obtain 1,000 signatures to run for U.S. House is sufficient to keep the general election ballot from being too crowded. It also says that the restriction cannot be justified by the need to prevent fraud. It said that possibly a requirement that the circulator live in Virginia would help combat fraud, but the law doesn’t just require residence in Virginia, it requires it inside the congressional district.

The 4^th circuit remanded the case back to the U.S. District Court, to see if the state wishes to present any new rationale on why the requirement is necessary. However, it is difficult to imagine what new interest Virginia may suggest. Constitutional lawsuits on residency requirements for circulators have been fought in at least 17 other states (Arizona, California, Colorado, Connecticut, Idaho, Illinois, Kansas, Nebraska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, West Virginia, and Wisconsin), and none of these states has ever come up with any state interest in a residency requirement for circulators, other than the two rejected by the 4^th circuit.

Fourth Circuit Had Been a Desert for Minor Party & Independents

The Lux decision is the first election law lawsuit with a favorable outcome for minor party or independent candidates in the 4^th circuit since 1990. Every other circuit had given minor party or independent candidates an election law victory in the last twenty years, other than the 4^th circuit. The 4^th circuit had struck down ballot access laws in 1989 and 1990, and that had been the end of such victories in that circuit, for minor parties and independents, until the Lux opinion came down.

The most recent victory in an election law lawsuit filed by a minor party or independent candidate, in each circuit, is listed here, along with a list of states and territories in that circuit:

D.C. Circuit (covers the District of Columbia): in 2008, in Unity08 v Federal Election Commission, struck down a rule that individuals could not contribute more than $5,000 to a new political party.

First Circuit (Maine, Massachusetts, Puerto Rico, Rhode Island, and Vermont):
in 2003, in Perez-Guzman v Gracia, struck down a law saying only notaries could circulate a petition to put a new party on the ballot.

Second Circuit (Connecticut, New York, Vermont): in 2004, in Green Party of New York v State Board of Elections, struck down a law saying voters could not register into unqualified parties.

Third Circuit (Delaware, New Jersey, Pennsylvania, Virgin Islands): in 2003, in Belitskus v Pizzingrilli, struck down a mandatory filing fee for candidates; the plaintiff was with the Green Party.

Fourth Circuit (Maryland, North Carolina, South Carolina, West Virginia): in 1990, in Cromer v State, struck down a law that independent candidates file a declaration of candidacy in February.

Fifth Circuit (Louisiana, Mississippi, Texas): in 1996, in Texas Independent Party v Kirk, struck down a law requiring independent candidates to show the voter registration affidavit number of each petition signer on the petition.

Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee): in 2006, in Libertarian Party of Ohio v Blackwell, struck down an early petition deadline for new parties.

Seventh Circuit (Illinois, Indiana, Wisconsin): in 2006, in Lee v Keith, struck down an early petition deadline for independent candidates.

Eighth Circuit (Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota): in 1996, in Forbes v Arkansas Educational TV, ruled that public broadcasting stations must invite all ballot-listed candidates into their debates.

Ninth Circuit (Alaska, American Samoa, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington): in 2008, struck down an early petition deadline for independent candidates.

Tenth Circuit (Colorado, Kansas, Oklahoma, Utah, Wyoming): in 2004, struck down a law telling a party that it couldn’t invite all voters to vote in its primary; this had been a Libertarian Party case.

Eleventh Circuit (Alabama, Florida, Georgia): in 1992, struck down a law requiring minor parties to pay to have their petitions checked).

There are eight election lawsuits filed by minor parties or independent candidates pending in various circuits, in Arkansas, California, D.C., Kansas, Montana, North Carolina, North Dakota, and Washington.

During the last thirty-five years, most ballot access victories won by minor party and independent candidates have been won in U.S. District Courts. Usually when a state loses in U.S. District Court, it doesn’t appeal. That is why the number of decisions of U.S. Courts of Appeals, has been relatively small. Forty-eight of the fifty states (all but Montana and New Hampshire) have had a ballot access law that pertains to minor party or independent candidates declared unconstitutional, or to violate the Voting Rights Act, during the last forty-five years.

On July 5, the Nevada Supreme Court issued an opinion in Nevada State Democratic Party v Nevada Republican Party, 58404. The issue was whether special U.S. House elections should be partisan elections or non-partisan elections. By a vote of 6-1, the Court ruled that qualified parties may nominate someone in such elections (also, independent candidates can get on the ballot with a petition of 100 signatures).

Because there is no primary election in these special elections, parties nominate by convention. If the Democratic Party had won the case, candidates would have filed as individuals. Democrats tended to prefer that system, because they suspected that many Republicans would file, and only one or a few Democrats would file, and with no run-off, it would have been easier to elect a Democrat. The election is to fill the northern Nevada U.S. House seat, which is a strongly Republican district. The election will be held September 13, and four candidates will be on the ballot: a Republican, a Democrat, an Independent American Party nominee, and one independent.

The case turned on statutory construction. The law is very unclear. The majority added a footnote which says, "That NRS 304.240(1) contained latent ambiguities might not be entirely surprising." Then it quoted from a Nevada Supreme Court 1954 decision which said, "Whether perfection in the election laws could be achieved no one would have the optimism to assert."

The dissenting justice, Michael A. Cherry, wrote "One theory behind the basis for ‘free-for-all’-type elections, recently adopted in states such as California, Louisiana, and Washington, is that modern governmental activity, rather than promoting collective problem-solving and constituent concerns, focuses excessively on the struggle for power between the major political parties…Free-for-all elections can therefore be useful by providing a degree of separation for our elected leaders from party insiders and narrow ideological activists."

Justice Cherry seems unaware that the most extensive political science research on polarization and partisanship in state legislatures has shown no correlation between type of election system and partisanship. This research was conducted by Professor Boris Shor of the University of Chicago. Professor Seth Masket, who wrote a book on polarization in the California legislature, agrees.

HB 32 passed the Senate Rules Committee on July 26. It lowers the number of signatures for minor parties and statewide independent candidates from 2% of the last gubernatorial vote (85,379 signatures) to one-fourth of 1% of the number of registered voters (which will probably be 17,000). The bill has already passed the House.

California: on July 14, the legislature passed SB 168, which makes it illegal to pay initiative, referendum or recall circulators on a per-signature basis, "directly or indirectly." Similar laws have been held unconstitutional, or enjoined, in Colorado, Ohio, Mississippi, Idaho, Washington, and Maine. They have been upheld in North Dakota, New York, and Oregon, although plaintiffs in the latter three states didn’t present evidence that such bans sharply increase the cost of getting a measure on the ballot. By contrast, in the states in wh
ich the lawsuits did strike down the laws, plaintiffs presented substantial evidence, which carried the day. The Sacramento Bee has editorialized that Governor Jerry Brown should veto the bill. He must act by August 2.

Louisiana: on July 1, Governor Bobby Jindal vetoed 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. The Governor said he vetoed the bill because of the part of the bill about labels for independent candidates. His veto message says the law already prohibits a qualified party from being called the Independent Party, a statement that is true but is irrelevant.

On July 14, the legislature passed AB 80, which moves the presidential primary from February to June. On the same day, the legislature passed the National Popular Vote Plan bill, AB 459. And, it passed AB 461, which says write-in votes are valid even if the voter didn’t know, or forgot, to "X" the box next to the name written in. The deadline for Governor Jerry Brown to act on these bills is August 2.

Bills to require initiative petitioners to wear buttons, and to outlaw paying voter registration workers on a per-registration basis, are still pending. The legislature is on a month’s recess.

California: on July 14, U.S. District Court Judge Otis Wright said that he will hold oral argument in Chamness v Bowen, the case that challenges two aspects of the top-two law. The hearing will be August 22 in Los Angeles. However, on July 23, he refused to let a write-in candidate intervene in the case. Wright had earlier canceled the oral argument. He reinstated it because of a legal technicality. He does not have a judicial temperament and he has shown by his remarks in the first oral argument that he is deeply prejudiced against the plaintiffs. The lawsuit challenges the law that lets some, but not all, candidates list their party label on the ballot; and the law that says that write-in space should be on the ballot but that write-ins can never be counted.

Maryland: on July 21, the Board of Elections filed a notice of appeal in Libertarian Party of Md. v Board of Elections, the case in which the lower state court had ruled that the Libertarian Party, and the Green Party, each had enough signatures on their petitions for ballot status. But the Board did not ask for a stay, so the parties are on the ballot now. It is likely that the Appeals Court will agree with the lower court.

D.C.: on July 21, the U.S. Court of Appeals rejected the motion of the Board of Elections to summarily rule against the Libertarian Party, in the party’s lawsuit that says the Board of Elections must count the write-in votes for Bob Barr for President in 2008. Barr was a declared write-in candidate, but even though the Board has procedures for presidential candidates to file as write-in candidates, the Board won’t count the votes. The case will now get further briefs and an oral argument.

New Hampshire: on July 25, the Libertarian Party asked the U.S. Supreme Court to hear its case against the Secretary of State, over party labels. In 2008, the Secretary of State had listed two candidates on the November ballot with the label "Libertarian". The party argues that the undisputed party nominee, Bob Barr, is the only person who should have had the "Libertarian" label on the ballot.

Pennsylvania: on July 13, the Third Circuit refused to reconsider its decision in Constitution Party v Cortes, in which the Constitution, Green, and Libertarian Parties had challenged these laws and practices: (1) the unique Pennsylvania system that puts petitioning groups in danger of paying costs of up to $110,000 if they submit a petition that is found not to have enough valid signatures; (2) the law requiring a party to have registration membership of 15% before it can avoid petitioning; (3) the failure of many counties to tally any write-ins; (4) the failure of the state to tally the write-ins that do get counted. The 3^rd circuit had said the parties lack standing to challenge any of these policies. It is possible that new lawsuits will be filed by the same parties, with a few minor tweaks that guarantee standing.

South Carolina: on July 18, a U.S. District Court ruled that the Republican Party will be allowed to present evidence in its lawsuit that seeks to limit its primary to party members. Greenville County Republican Party v State, 6:10-cv-1407.

Ohio: on July 8, the Socialist Party’s 2010 nominee for U.S. Senate sued the Federal Election Commission for refusing to take action against the Ohio News Organization last year. The Ohio News Organization had sponsored a candidate debate and had not set out any objective criteria on whom should be invited. The case is filed in Washington, D.C.

Tennessee: on July 19, the Constitution and Green Parties filed a lawsuit in U.S. District Court, arguing that the new ballot access law is just as unconstitutional as the old one. The old law was invalidated last year, mostly because the petition deadline was too early. The 2011 session of the legislature moved the deadline from March to April. The lawsuit also challenges a Tennessee law that says the top spot on the ballot is reserved for parties that polled at least 5% of the vote in the previous election for Governor or President. The case is Green Party of Tennessee v Hargett, m.d., 3:11-cv-00692.

Vermont: on July 20, a lower state court upheld the June petition deadline for independent candidates. The decision does not discuss the holdings of the two U.S. Supreme Court rulings that concern early petition deadlines, but instead rests on two U.S. Supreme Court decisions that are not about early deadlines. The decision does not discuss any precedents other than U.S. Supreme Court precedents. Trudell v Markowitz, 612-8-10, Washington County. Plaintiffs will appeal.

New Hampshire: on July 18, Secretary of State Bill Gardner ruled that the Libertarian Party may begin to circulate the party petition as early as it wishes. He had earlier said that petition cannot be circulated until January of the election year.

Rhode Island: the State Board of Elections has decided to remove the names of all q
ualified parties from the voter registration form. Instead, the voter will be expected to write in the party.

This chart shows the most crowded statewide regularly-scheduled general election ballot, in the history of each state. Special elections are excluded.

State	No. of Candidates	Year	Requirement
Alabama	10 for president	1980	hold a convention
Alaska	9 for president	1992	2,035 signatures
Arizona	7 for president	1968	358 signatures
Arkansas	13 for president	1996	hold a convention
California	8 for president	1996	89,007 registrations
Colorado	16 for president	2008	pay $500
Connecticut	7 for president	1996	7,500 signatures
Delaware	7 for president	2008	305 registrations
Dist. of Columbia	9 for president	1992	3,072 signatures
Florida	13 for president	2008	27 members to be pres. elector candidates
Georgia	5 for president	1936	hold a convention
Hawaii	7 for president	2000	602 signatures
Idaho	6 for president	2000	4,918 signatures
Illinois	12 for U.S. Senate	1926	1,000 signatures
Indiana	8 for president	1980	6,982 signatures
Iowa	14 for president	1992	1,000 signatures
Kansas	8 for president	1980	2,500 signatures
Kentucky	9 for president	1976	1,000 signatures
Louisiana	11 for president	1992	pay $500
Maine	7 for president	1996	4,000 signatures
Maryland	6 for president	2008	10,000 signatures
Massachusetts	10 for Governor	1938	1,000 signatures
Michigan	10 for president	1984	file declaration of candidacy with court
Minnesota	11 for president	1996	2,000 signatures
Mississippi	8 for president	1992	1,000 signatures
Missouri	8 for president	1952	hold a convention
Montana	7 for president	2000	5,000 signatures
Nebraska	7 for president	2000	2,500 signatures
Nevada	8 for U.S. Senate	2010	250 signatures
New Hampshire	8 for president	1980	1,000 signatures
New Jersey	19 for Governor	1993	800 signatures
New Mexico	10 for president	1992	2,069 signatures
New York	12 lines for president	2000	15,000 signatures
North Carolina	6 for president	1980	10,000 signatures
North Dakota	11 for president	1976	300 signatures
Ohio	9 for president	1984	5,000 signatures
Oklahoma	8 for governor	1934	pay filing fee
Oregon	8 for president	1996	14,601 signatures
Pennsylvania	10 lines for Governor	1914	2,238 signatures
Rhode Island	10 for president	2000	1,000 signatures
South Carolina	7 for president	2000	10,000 signatures
South Dakota	6 for president	1996	3,117 signatures
Tennessee	16 for Governor	2010	25 signatures
Texas	6 for president	1996	43,963 signatures
Utah	10 for president	1992	300 signatures
Vermont	10 for president	2000	1,000 signatures
Virginia	7 for president	1936	file declaration of candidacy
Washington	12 for president	1976	100 attendees at a meeting
West Virginia	6 for president	2000	6,365 signatures
Wisconsin	11 for president	1976	2,000 signatures
Wyoming	6 for president	2000	3,485 signatures

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	*2,149	*11	*already on	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	*1,650,000	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	*515	*247	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	*112,174	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	*finished	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	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	*finished	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	*600	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	*unsettled	*unsettled	*unsettled	*1,000	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	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	alrea dy on	*2,300	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	0	*1,900	0	June 1	Aug. 28
TOTAL STATES ON			*28	*15	*11	*5	“	`

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

Americans Elect has collected more signatures on its California petition for party status than any other party has ever collecte
d. California lets groups either collect 1,030,040 signatures, or persuade 103,004 persons to fill out a voter registration card showing themselves as members. Americans Elect chose the petition method, and got 1,650,000 signatures. The drive probably cost $3,000,000, and used 1,600 circulators. The signatures will be submitted soon.

On July 3, Fred Newman, 76, founder of the New Alliance Party, died. The New York Times ran an obituary on July 10. In 1988 the party put its presidential nominee, Lenora Fulani, on the ballot in all 50 states. The party also elected a State Senator in Nebraska, Ernie Chambers, who was registered in the New Alliance Party at the time.

Under Newman’s leadership, the New Alliance Party dissolved in 1994 and helped create the Patriot Party. Then, the Patriot Party dissolved in 1995 and joined the Reform Party. Newman achieved his greatest fame in 2000, when he and Fulani endorsed Pat Buchanan for the Reform Party presidential nomination. The New Republic even put Newman and Fulani on the cover of one of its issues.

In recent years, Newman lost interest in the Reform Party, and started the Committee for a Unified Independent Party, which now calls itself Independent Voting. It holds itself out as the leadership of independent voters in the United States, and teaches that the solution to U.S. problems is for all states to require political parties to permit independent voters to vote in partisan primaries.

Michael O’Connor, a township commissioner in Abington Township, Montgomery County, Pennsylvania, has changed his voter registration from "Democrat" to "Working Families." O’Connor will run for re-election this November as the Working Families Party nominee.

On July 12, Ron Paul announced he will not seek re-election to Congress. He has introduced more bills to help minor party and independent candidates than any other member of Congress. In four sessions of Congress he introduced a bill to outlaw restrictive ballot access laws for federal office. He also introduced a bill requiring presidential candidates who receive public funding to participate in general election debates that are open to all candiates who theoretically could be elected.

Ever since 1920, the Clerk of the U.S. House of Representatives has published a book that has the number of votes for each candidate for Congress. The 2010 booklet is now in print. Its title is "Statistics of the Congressional Election of November 2, 2010." Copies are free and the booklet is 60 pages. The back of the booklet contains charts showing the total vote by party for each House of Congress in 2010. To get a copy, call 202-225-1908.

The May 1, 2011 B.A.N. said the new Florida ballot access law requires qualified parties that are not recognized by the Federal Election Commission to submit a petition to place its presidential nominee on the November ballot, and that this petition requires the signatures of 4% of the last presidential vote. The actual bill that was finally passed requires the petition to bear the signatures of 1% of the number of registered voters. The bill was amended and B.A.N. was not aware of the amendment until recently.

---

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.