TEXAS CHANGES PRIMARY DATE AND ACCIDENTALLY CREATES ABSURD RULES FOR INDEPENDENT CANDIDATES

On December 16, the Texas Democratic Party, and the Texas Republican Party, reached an agreement to hold the state’s primary in 2012 on April 3 instead of March 6. In Texas, parties administer the primaries, and are reimbursed by the state for their election-administration expenses, so the parties are free to make this change. The run-off primary will be June 5.

Later on December 16, a 3-judge U.S. District Court approved the new primary dates. This all came about because the U.S. House, and state legislative district boundaries, cannot be finalized in time for a March primary. The legislature’s redistricting plan may violate the Voting Rights Act, and the U.S. Supreme Court will hear the dispute on January 9, 2012.

No one in Texas government, or in the federal court that approved the date changes, seems to have noticed that the new primary dates, combined with other pre-existing laws, make for an absurd set of rules for independent candidates.

Independent presidential candidates will now have only 41 days to collect 80,778 valid signatures, from voters who are registered but who didn’t vote in the primary. That works out to 1,970 signatures per day.

But independent candidates for other statewide office, such as U.S. Senate, will have 93 days, and only need 49,729 signatures of voters who didn’t vote in the primary. That works out to 535 signatures per day.

The existing law ties the date of the petition deadline for non-presidential independent candidates to the primary date. So moving the primary date later means that non-presidential independent candidates have a later deadline.

But the existing law does not tie the petition deadline for presidential independent candidates to the date of the primary. Instead the law simply says that deadline is the second Monday in May. No one remembered to change this law. And because no one can petition for an independent candidate (for any office), until after the primary, the start date for independent presidential candidates moves from March to April, eliminating almost half the time permitted for independent presidential petitions.

Even before the primary date changes, the Texas law was irrational. Why should an independent presidential candidate need 62% more signatures than an independent candidate for other statewide office? The U.S. Supreme Court ruled in Anderson v Celebrezze in 1983 that states have a diminished interest in strict ballot access laws for presidential candidates, relative to candidates for other office.

Furthermore, the main holding of that decision is that petition deadlines for independent presidential candidates cannot be earlier than the summer of election years. Even before the recent primary date changes, Texas law appeared to be unconstitutional, because Texas has the only independent presidential petition deadline earlier than June. All the other states have such deadlines in June, July, August or September.

Date Change Helps Minor Parties

The Texas date change will make it easier to qualify minor parties for the Texas ballot. Parties will still have 75 days to collect 49,729 signatures. But now they
can do so in the period April 4-June 17, whereas under the old system, the period was March 6-May 20.

The new period is better for several reasons: (1) minor parties typically have more financial resources later in the election year than earlier; (2) the weather in the April-June period is better than the weather in the earlier period; (3) no one can sign who voted in the primary. The turnout for an April primary is likely to be lower than it would have been in March, because it is more likely that suspense over the Republican presidential nominee will be gone by April. Of course, this is not a certainty.

The Libertarian and Green Parties are already on the ballot in Texas. Parties that have told the state they intend to petition include Americans Elect, the Constitution Party, and the Justice Party.

No one can appear on a presidential primary ballot in Virginia unless the candidate submits 10,000 signatures. Although the Republican Party recognizes seven contenders for its presidential nomination, only two of them qualified on the December 22 deadline. Michele Bachmann and Rick Santorum did not even attempt to petition. Jon Huntsman did petition, but he failed to get 10,000 raw signatures, so he did not submit them. Rick Perry and Newt Gingrich did each submit a petition with more than 10,000 signatures, but when the signatures were checked, each petition had fewer than 10,000 valid. Only Mitt Romney and Ron Paul will appear on the ballot.

Virginia does not permit write-ins in primaries, and excludes out-of-state circulators. Ironically, the State Constitution protects write-ins, but only in general elections.

Any day now, the Alabama Constitution, Green, and Libertarian Parties will file a lawsuit in U.S. District Court, arguing that the Alabama petition deadline of March 13 is too early. Stein v Chapman, The 2011 legislature moved the deadline from June to March.

In 1991, the 11^th circuit struck down the old Alabama ballot access law for new parties, which required a petition of 1% of the last gubernatorial vote, due in April. The existing law requires a petition of 3% of the last gubernatorial vote. No minor party has completed the Alabama statewide petition since 2000, when the Libertarians did it. At the time, the deadline was in July.

Furthermore, the 11^th circuit decision, New Alliance Party of Alabama v Hand, concerned ballot access in a mid-term year, not a presidential year. The U.S. Supreme Court said in 1983 in Anderson v Celebrezze that states have a diminished interest in keeping presidential candidates off their general election ballot, than candidates for other office.

The state will probably argue that the minor parties should qualify their presidential candidates using the independent petition procedure, which only requires 5,000 signatures, due in September. But in Storer v Brown, in 1974, the U.S. Supreme Court said that the minor party and independent candidate approaches to politics are "entirely different", and states must have adequate procedures for both.

Pennsylvania will require 20,601 signatures for statewide independent candidates in 2012. This number could not be known until after the November 2011 election. The 2012 requirement is 2% of the highest vote-getter’s vote for a statewide judicial race in 2011.

On December 14, Massachusetts Supreme Court Justice Robert Cordy referred Libertarian Association of Massachusetts v Galvin, sj2011-0348,to the full State Supreme Court. This makes it very likely that the Court will hear the case. The Massachusetts Supreme Court has a system under which a single justice, serving on a rotating basis, decides which cases are serious enough to be set before the full court.

The issue is whether Massachusetts election laws permit unqualified parties to use a stand-in presidential candidate on their ballot access petitions. Massachusetts has no petition procedure for a group to transform itself into a qualified party in advance of any particular election. Instead, petitions must carry the names of the group’s nominees. That is a problem for a party that wants to circulate its petition before it has chosen its presidential nominee.

The Massachusetts Secretary of State permitted stand-ins for President or Vice-President in 1980, 1996, 2000, and 2004. In 2007 he told the Libertarian Party that he would prepare a form for a stand-in procedure. Then, when the party relied on that, and used a stand-in, he refused to accept the petition, even though the law had not changed in the meantime. The party sued and won a decision in U.S. District Court that the Constitution requires that stand-ins be permitted. But after the election over, the state appealed and the First Circuit reversed that decision, but said that it is possible that a state court would construe the law to permit stand-ins.

The Secretary of State has fought this case every step of the way, and has been trying to persuade the State Supreme Court not to hear it. The American Civil Liberties Union of Massachusetts has been sponsoring the lawsuit.

On December 28, the Arizona Libertarian Party, and the Arizona Green Party, filed a lawsuit in federal court against the new voter registration form.

According to a law passed in 2011, only the two largest parties should be listed on the voter registration form with their own checkbox. Anyone who wants to register into any other party must check the "other" box and write in the name of that party.

The exclusion from the voter registratrion form is especially damaging to minor parties in Arizona, because the commonest method for minor parties to rem
ain ballot-qualified in Arizona is to have registration membership of at least two-thirds of 1%. The Arizona Libertarian Party regularly meets this test, although not by a big margin. The Arizona Green Party has never been able to get its registration up that high, so that it is forced to petition time after time.

If the qualified minor parties were listed on the registration form, their registration would rise substantially. We can know this is true, by the example of other states. For instance, when California started printing the names of the qualified parties on voter registration forms in 1976, the Peace & Freedom Party registration jumped from 12,851, its 1975 tally, to 27,893, at the October 1976 tally.

On December 16, the Ohio legislature passed HB 369, which combines the two Ohio 2012 primaries into a single primary, to be held March 6 for all office. The Governor signed the bill the same day. As a result, the filing deadline for candidates running in the presidential primary moved to December 30. The Green Party had been hoping to use its presidential primary, but now won’t be able to get the 500 signatures needed to enter anyone in that primary.

California: on December 22, the 9^th circuit ruled that Alan Keyes did not have standing to challenge the validity of Barack Obama’s election as President in 2008. Keyes had been the American Independent presidential nominee in California that year. He had filed a lawsuit against President Obama on January 20, 2009, a few hours after Obama was sworn in. The decision says Keyes might have had standing if he had filed the lawsuit before the election. Keyes believes Obama does not meet the constitutional qualifications to hold the Presidency. Drake v Obama, 09-56827. Other plaintiffs were Reverend Wiley Drake, the vice-presidential nominee of the AIP in 2008, and Markham Robinson, an AIP party official.

Florida: on December 8, a former state legislator filed a lawsuit against the 2011 law that says no one may run in a partisan primary if that person had been a registered member of another party during the year before the election. Nancy Argenziano, the plaintiff, wants to run as a Democrat for Congress in 2012, but during the period year, she was a registered member of the Independent Party. Argenziano v Browning, Leon County Circuit Court, 2011-ca-3484. She had been a Republican State Senator earlier. This lawsuit would be stronger if the Florida Democratic Party were to join the lawsuit, but the party refuses to do that.

Illinois: on December 23, the Green Party asked the State Supreme Court to hear its ballot access case. The issue is whether the Green Party is still ballot-qualified, and entitled to its own primary, in the four U.S. House districts and six state representative districts where it got over 5% of the November 2010 vote. The law says parties are ballot-qualified in any such district. But the state says the district boundaries changed in 2011, so the party lost its status in those districts. Illinois Green Party v Illinois State Board of Elections. The lower courts had denied any relief.

Indiana: on December 21, a state Circuit Court in Indianapolis ruled that Secretary of State Charlie White should be removed from office, because he registered to vote at his ex-wife’s residence instead of his own residence. Indiana Democratic Party v White. He had been elected in November 2010. A separate criminal case against him is also pending. The decision means that the Democratic nominee for Secretary of State will automatically take the office, unless the decision is reversed by the State Supreme Court. That Court is expected to take the case.

New York: on December 12, U.S. District Court Judge Gary Sharpe said he will choose a primary date for New York (for office other than President) within the next 30 days. He said he doesn’t trust the legislature to ever set a new primary date. Since 2009 the state has been in violation of a federal law that tells them they must mail overseas absentee ballots at least 45 days before the election. The statutory primary date, the second Tuesday in September, makes it impossible for the state to comply with the federal law. The state got a waiver in 2010. The State Senate wants an August primary date and the Assembly wants a June date.

North Carolina: on January 12, a lower state court will hear oral arguments in two lawsuits that challenge the redistricting plans for U.S. House and state legislature. Dickson v Rucho, and also North Carolina State Conference of NAACP v North Carolina. If the state’s motion for summary judgment fails, then a trial will be held in March. North Carolina’s primary is set for May, but it may need to be postponed. If that happens, the state will also be required to extend the petition deadline for independent candidates for all office. In 2004, when North Carolina redistricting was challenged, the state had to postpone the independent deadline to July 20, for all office, not just district office.

Texas: on December 17, the Democratic Party voluntarily dismissed its lawsuit against the Green Party. In 2010, the Green Party had successfully petitioned for a place on the ballot, after an anonymous donor paid for the petition drive through his own corporation. The Democratic Party had then sued to remove the party from the ballot, on the grounds that Texas law prohibits parties from receiving donations from corporations. The Green Party defended itself by pointing out that the law allows such contributions for "normal operating expenses" of a political party, and pointed out that in the United States, petitioning is a "normal operating expense."

Vermont: the lawsuit against the state’s June petition deadline has received enough contributions from readers of this newsletter so that it can go to the State Supreme Court. The case, Trudell v Markowitz, 2011-311, lost in lower state court. The appeal will go forward, despite the financial burden of preparing a transcript of the trial, because enough of you contributed to the Coalition for Free & Open Elections (COFOE), which then contributed the money to the plaintiff.

Federal law: on December 22, U.S. District Court Judge John D. Bates upheld section Five of the federal Voting Rights Act. LaRoque v Holder, 10-0561. Section Five of the Act won’t let certain states change their election laws without approval of the U.S. Justice Department. The case started when the voters of Kinston, North Carolina, voted to switch city elections from partisan to non-partisan elections. The Justice Department wouldn’t approve that change, because it said the change would injure black voters, who can usually dominate the Democratic Party primary. The city council refused to
appeal, so some voters in the city filed a lawsuit to overturn the Voting Rights Act.

Originally, Judge Bates had said the voters didn’t have standing, but the U.S. Court of Appeals had reversed that, and sent the case back.

No Holding Back: The 1980 John B. Anderson Presidential Campaign, by Jim Mason, 563 pages, paperback, 2011 by University Press of America.

This book, which took over ten years to research and write, is the definitive book on the Anderson presidential campaign of 1980. The author spent thousands of hours interviewing people who were leaders of the Anderson campaign, including Anderson himself. The book contains previously unpublished information about the campaign. It even reveals that key figures in the Iran government dangled an opportunity for Anderson to theoretically play a key role in negotiations over the American embassy hostages. Anderson resisted the temptation, because he perceived that any involvement would have undercut the U.S. government’s efforts to win freedom for the hostages.

Probably the general perception nowadays about Anderson’s campaign is that he peaked in June (much as Ross Perot peaked in June 1992), and it was all downhill from then until November. But No Holding Back makes it clear that this perception is incorrect. There were big disappointments for the Anderson campaign, during the summer of 1980, followed by surprising gains in early September. The 1980 general election presidential campaign was very volatile, and during early September, Anderson had a chance of winning the election.

The book describes the legal steps President Jimmy Carter and the Democratic Party took to keep Anderson off the ballot in certain states. None of these attempts succeeded, and Anderson became the first independent presidential campaign in U.S. history to be on the ballot of all jurisdictions.

I frequently read books in the evening, while in bed. I tend to get sleepy after reading an hour in bed. But while I was reading No Holding Back, I would stay awake for hours.

Even though I lived through the 1980 campaign, I learned a great deal from this exciting, well-written, balanced book. Even though it is lengthy, and has large pages, I read it from cover to cover in four days, simply because it was very good reading.

For more about the book, see www.noholdingbackbook.com.

California Crackup, How Reform Broke the Golden State and How We Can Fix It, by Joe Mathews and Mark Paul. 224 pages, paperback, 2010 by University of California Press.

This book is the first fairly well-read book (in California anyway) to boost proportional representation. It has been in most bookstores in California ever since it came out last year, and libraries have ordered multiple copies; for example, the San Francisco public library has ten copies. Both authors are well-known for their previous books and for their activities as journalists.

Part One, "Building and Breaking California" has these chapters: Crisis Without End; History and the (California) Constitution; Empowering and Shackling Sacramento; Direct Democracy Demotes the Legislature."

Part Two, "The California Fix", has: Budgeting without Shackles; The Architecture of Political Frustration; Remaking Elections and the Legislature; Government from the Bottom Up; A More Direct Democracy; Good Rules to Match its Mountains." The chapter titled "Remaking Elections and the Legislature" contains the explanation and advocacy for proportional representation.

Because the California budget crisis, continues to dominate the headlines, this book continues to receive attention. It is engrossing and not in the slightest bit difficult reading. Every advocate of proportional representation, whether a resident of California or not, will enjoy this book.

Duopoly: How the Republicrats Control the Electoral Process, by Darryl W. Perry. Paperback, 81 pages, Free Patriot Press, 2011.

Although this book is physically small, it has valuable statistical data that is not easy to find elsewhere, in five appendices. Appendix One is "Congressional Re-Election Rates for U.S. House of Representatives" for the entire period 1789-2010. It shows, for each regular election, the number of seats, the number of open seats, the number of members seeking re-election, the number being re-elected, and then shows percentages for each of the last two categories.

This Appendix shows that before the onset of government-printed ballots, and accompanying ballot access restrictions, U.S. House elections were far more fluid. Government-printed ballots began in 1889 and were implemented in all states by 1922 (except South Carolina didn’t get them until 1950). Starting in 1950 there has never been an election with the re-election rate below 85%. However, it was as low as 58.3% in 1874, and below 70% in 1842, 1854, 1862, 1890, 1894, and 1932.

Appendix Two shows re-election rates for the Canadian Parliament, 1869-2011. Canada has never had restrictive ballot access laws, and the Appendix shows that, on the average, only 60% of members of the Canadian parliament who run for re-election are re-elected.

Appendices Four and Five show the number of candidates on the ballot in British and Canadian Parliamentary elections is typically five or six. There is no Appendix that has the same data for the U.S., but over the past few decades, the number of candidates on the ballot for U.S. House has averaged approximately 2.5 candidates, and for state legislatures, has averaged fewer than two candidates. http://itunes.apple.com/us/book/duopoly/id473374297?mt=11.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	AM. ELE	Party	Indp.
Ala.	44,829	5,000	*in court	*in court	*in court	*72,000	Mar. 13	Sep. 6
Alaska	(reg) 7,406	#3,271	already on	*2,130	*29	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	*finished	0	already on	April 7	Aug. 1
Calif.	(reg) 103,004	172,859	already on	already on	negotiation	*already on	Jan. 2	Aug. 10
Colo.	(reg) 1,000	#pay $500	already on	already on	already on	already on	Jan. 8	June 4
Conn.	no procedure	#7,500	*0	*0	*0	*0	– – –	Aug. 8
Del.	(est.) (reg) 650	(est.) 6,500	already on	528	finished	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	0	112,174	already on	already on	already on	already on	Sep. 1	July 15
Georgia	50,334	#51,845	already on	0	0	*69,000	Aug. 6	Aug. 6
Hawaii	691	#4,536	already on	500	0	already on	Feb. 22	Sep. 7
Idaho	13,102	1,000	already on	0	already on	*23,000	Aug. 30	Aug. 24
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	0	0	0	0	– – –	Sep. 7
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	finished	Dec 8, 11	Aug. 8
Md.	10,000	(est.) 35,000	already on	already on	*1,000	*8,100	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. 21
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	finished	July 30	July 30
Mont.	5,000	#5,000	already on	0	200	*7,800	Mar. 15	Aug. 15
Nebr.	4,880	2,500	already on	0	0	*5,700	Aug. 1	Sep. 1
Nev.	7,013	7,013	already on	0	already on	already on	April 13	July 6
N. Hamp.	13,698	#3,000	*16,000	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	700	0	*finished	Apr. 2	June 27
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	500	3,000	*83,000	May 16	June 14
No. Dak.	7,000	#4,000	*300	0	0	*2,000	Apr. 13	Sep. 7
Ohio	show support	5,000	already on	already on	already on	already on	unsettled	Aug. 8
Okla.	51,739	43,890	*34,000	0	0	*28,000	March 1	July 15
Oregon	21,804	18,279	already on	*9,025	already on	*35,000	Aug. 28	Aug. 28
Penn.	no procedure	*20,601	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	*16,500	May 6	July 15
So. Dak.	7,928	3,171	finished	0	0	*2,500	Mar. 27	Aug. 7
Tenn.	40,042	275	0	*in court	*in court	*55,500	April 5	Aug. 16
Texas	49,729	80,778	already on	already on	can’t start	can’t start	*June 17	May 14
Utah	2,000	#1,000	already on	0	already on	already on	Feb. 15	Aug. 15
Vermont	be organized	#1,000	already on	*0	0	*already on	Jan. 1	Jun 14
Virginia	no procedure	#10,000	*0	*0	*0	*0	– – –	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	*0	*0	*already on	*0	May 1	*Aug. 7
Wyo.	3,740	3,740	already on	0	*finished	*8,000	June 1	Aug. 28
TOTAL STATES ON			29	16	12	15*	“	`

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

On December 28, former New Mexico Governor Gary Johnson announced that he will seek the Libertarian Party nomination for President. He made the announcement from the steps of the New Mexico State Capitol, and he also filled out a voter registration card, registering into the Libertarian Party.

Although the Libertarian Party has had former members of Congress seek its presidential nomination, never before has a former Governor sought the party’s presidential nomination. Excluding past southern Governors who had a record of supporting racial segregation, the last Governor or ex-Governor who ran for President outside the two major parties was Robert La Follette in 1924.

On December 21, Americans Elect revealed that it has amended its Bylaws, to make it somewhat easier for presidential candidates to seek the group’s nomination. The original rules said that "automatic" candidates need 10,000 clicks to be nominated. A "click" means a computer response from a delegate, nominating someone. Delegates can nominate as many presidential candidates as they wish. The original rules also said "contingent" candidates need 100,000 clicks.

The new rules reduce the requirement for "contingent" candidates to 50,000 clicks. An "automatic" candidate is someone who has served as a Governor, member of Congress, cabinet member, top-ranking general, or leader of a very large business or labor union. A "contingent" candidate is someone who lacks those qualifications.

The new rules also make it somewhat easier for the Delegates to overrule a decision of the Americans Elect board. The old rules required a two-thirds vote, and the new rules require a majority vote, and allow more time for Delegates to vote on a motion to overrule the Board. A delegate is any registered voter who signs up on the AE web page.

On December 22, Donald Trump changed his voter registration from "Republican" to "independent." At the time he announced the change, said he might possibly run for President in 2012 as an independent, or perhaps might seek the Americans Elect nomination.

Trump has entertained the idea of running for President outside the major parties in the past. In 2000, he ran in Reform Party presidential primaries in California and Michigan, and won both of them. By contrast, Pat Buchanan only won one Reform Party presidential primary in 2000, in Missouri (Trump didn’t run in that primary).

Also in 2000, a petition to place a slate of Delegates to the Reform Party national convention was submitted in the New York Independence Party presidential primary. However, the slate petition was challenged, and did not appear on the primary ballot.

On December 16, Rocky Anderson’s Justice Party filed for "political body" status in California. Elections officials will now keep track of how many people register as members of that party. The party needs 103,004 registered members by January 2 to qualify. The party has too little time to meet this goal, but if it meets that goal later in the year, it will file a lawsuit, charging that the deadline is unconstitutionally early.

In November, the Party for Socialism and Liberation announced that it has nominated a national ticket for 2012. The presidential nominee is Peta Lindsay and the vice-presidential nominee is Yari Osorio. Lindsay is age 27 and Osorio is age 26 and was born in Colombia. This is the second time the party has run candidates for national office. In 2008 it received 6,818 votes for its presidential nominee, Gloria La Riva.

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