EIGHT WINS, FIVE LOSSES, IN BALLOT ACCESS FIGHTS

National: on September 20, a Superior Court in Washington County, Maine, ruled that Ralph Nader is entitled to a trial in his lawsuit against the Democratic Party over what it did to his campaign in 2004. Nader will be allowed to try to prove that the challenges to his ballot position (1) had an ulterior motive besides just protecting voting integrity; (2) abused the challenge process, and the judicial process, by filing actions that they knew lacked merit.

Nader is now entitled to use the discovery process to gather more evidence. This lawsuit is unique in U.S. history. Minor party and independent presidential candidates in the past have experienced some of the same treatment that Nader received, but none of them ever fought back by filing a lawsuit similar to this one. Nader v The Maine Democratic Party, the Democratic National Committee, Kerry-Edwards 2004, The Ballot Project, Dorothy Melanson, Terry McAuliffe and Toby Moffett, cv-09-57. The case against the Ballot Project was dismissed because it no longer exists.

Washington County is the eastern-most county in Maine, and has a population of 32,856. The case was filed here because one of Nader’s co-plaintiffs lives in the county. In 1992 Washington County cast 33.2% of its vote for Ross Perot, making it one of Perot’s best counties in the nation.

Illinois: On September 5, U.S. District Judge Joan Gottschall, a Clinton appointee, denied the state’s motion to dismiss the Libertarian Party’s lawsuit against the infamous "full-slate law." She wrote a 17-page opinion that virtually says the law is unconstitutional. Libertarian Party of Illinois v State Board of Elections, 12-c-2511, northern district.

The law requires newly-qualifying parties to nominate a full slate of candidates. In this particular case, the Libertarian Party wanted to run a candidate for Auditor of Kane County, but did not want to run for the other partisan county offices. The Judge noted that no other state has ever had a law like this, that the law does not apply to the established parties, and that none of the state’s justifications for the law is convincing.

Iowa: On September 4, a state trial court in Polk County ruled that Gary Johnson should remain on the ballot .Mazza v Schultz, cv-9348. The issue was whether the method used by the Libertarians to get on the ballot for President is proper.

Iowa lets unqualified parties qualify for statewide office either by holding a convention with 250 delegates, or by submitting a petition signed by 1,500 voters. The Libertarians had used the former method. The convention was held on one day at the State Fair, and passersby were invited to sign as Delegates. The judge ruled that the law doesn’t define such terms as "convention" or "delegate", so there is no basis to invalidate the filing. This lawsuit arose as an action against the Secretary of State, the Attorney General, and the Auditor, who had together ruled in favor of the Libertarians in an earlier administrative challenge.

New Hampshire: on September 20, the Ballot Law Commission voted to place Virgil Goode, the Constitution Party presidential nominee, on the ballot. The issue was what to do when some town clerks don’t check petitions in time for the petitioning group to collect them and transport them to the Secretary of State’s office. Another issue was what to do when a town clerk erroneously invalidates signatures that can be shown to be valid.

The Attorney for the Secretary of State tried to persuade the Commission to deny ballot placement to Goode, and said if the Commission put him on, that would create a "bad" precedent.

Pennsylvania: on September 13, a three-judge Commonwealth Court ruled 2-1 that signatures of voters are not invalid just because the signer had moved and wrote the new address on the petition but the voter registration record still has the old address. In re Nomination Paper of Robertson, 507 MD 2012. A few days later, as the challenge process continued, the results were that the statewide Libertarian petition has enough valid signatures, given this ruling.

The same court ruled 2-1 that signatures in which the signer failed to write "2012" in the column for the date are invalid. Both sides appealed to the Pennsylvania Supreme Court, against the part of the ruling that went against them. In the meantime, the state has printed ballots with the Libertarian statewide nominees included. Furthermore, there are still thousands of Libertarian signatures that still haven’t gone through the challenge process, and it is extremely likely that the petition has enough valid signatures even if the Pennsylvania Supreme Court were to reverse the favorable part of the decision.

Vermont: on August 27, the State Supreme Court refused to stay the decision of the lower court. The lower court, as noted in the September 1 Ballot Access News, had given Rocky Anderson two more weeks to collect signatures and have them verified by town clerks. The basis was that, just as in the New Hampshire paragraph above, the town clerks had not checked the signatures in a timely manner. Anderson v State.

Virginia: on September 4, the Virginia Board of Elections certified the Libertarian, Constitution, and Green Party presidential candidate petitions. The Board rejected Republican challenges to the Libertarian and Constitution petitions. The challengers had said the notarization on the Libertarian petition was improper, and that fraud had been committed on a few Constitution petition sheets, but the Board rejected the challenges.

The real news, however, was that the Board accepted the Green Party petition. The Green Party only had enough valid signatures if the sheets containing the original list of Green Party presidential elector candidates were counted. The Green Party had had to start all over with a new petition with a revised list of presidential elector candidates, because Virginia requires that one elector live in each U.S. House district. The district boundaries had changed in the middle of the petitioning period. The Green Party submitted the original petition, and the revised petition, and the Board accepted both sets. This action creates a good precedent.

Washington: on August 31, a King County Superior Court ordered the Secretary of State to print "Socialist Altern." on the November ballot, next to the name of the Soc ialist Alternative Party’s nominee for State House, 43^rd district. In re King County General Election Ballot and Party Preference of Kshama
Sawant, no. 12-2-28163-7.

In general, Washington lets any candidate for Congress or state partisan office print any party label that is not obscene and is no longer than 15 characters. However, the state won’t permit labels for candidates who get on the November ballot because they placed first or second in the primary with write-in votes, and if the write-in candidate had not filed a declaration of write-in candidacy.

This decision has favorable implications for somewhat similar battles raging in California over labels for candidates for partisan office.

Losing Battles

Florida: on August 27, the state removed the Socialist Workers Party presidential ticket from the ballot, even though the Socialist Workers Party is a qualified party. The state had received a letter from an attorney for the party, which happened to mention that the SWP is not recognized by the Federal Election Commission as a "national committee." In 2011, Florida had passed a law, saying a ballot-qualified party cannot place a presidential nominee on the ballot unless it either submits 112,174 signatures, or unless the FEC recognizes it as a "national committee."

If the SWP had not said anything about its lack of recognition by the FEC, the state would have printed the party’s nominees on the ballot. In 2011 the Secretary of State had ruled that his office has no official knowledge of which parties the FEC recognizes, and therefore the requirement would not be enforced.

Michigan: on September 6, U.S. District Court Judge Paul Borman, a Clinton appointee, ruled from the bench that he would keep Gary Johnson off the ballot, on the grounds that Johnson’s name had appeared on the February Republicn presidential primary. Libertarian Party of Michigan v Ruth Johnson, eastern district, 2:12cv-12782. The Judge appeared angry with the Libertarian Party for not having filed its briefs sooner. The case had been filed in June, but the first brief had not been filed until August, due to restrictive court rules about filing papers, and about admitting out-of-state attorneys into that district.

Judge Borman didn’t issue his written opinion until September 7, and it erroneously said that John Anderson’s name had not appeared on the Republican primary in Michigan in 1980. This is a key point, because the Libertarian Party argues that the Michigan "sore loser" law was never intended to apply to presidential primaries, and the John Anderson example from 1980 is proof.

On September 10, Judge Borman issued a corrected opinion, lining out his sentence about John Anderson, but adding a footnote that the error had no bearing on his analysis.

On September 7, the Michigan Secretary of State finally responded to the party’s June request that if Governor Johnson could not appear on the ballot, then the party’s presidential nominee is Gary E. Johnson of Austin, Texas should be the party’s nominee. Gary E. Johnson is a former national Libertarian Party official who was happy to be the alternate presidential nominee. But the Secretary of State, after having ignored this idea for three months, denied it. The party then filed a new lawsuit in the western district, Gelineau v Ruth Johnson, 1:12cv-976, to implement that idea, but U.S. District Court Judge Paul Maloney, a Bush Jr. appointee, denied that, mostly because the state said it was already printing the ballots.

Both cases have been appealed, but the Sixth Circuit and the U.S. Supreme Court refused to enjoin the ballot-printing process during the appeal. The party’s latest filing asks that even if all the ballots are printed without any Libertarian presidential nominee on the ballot, that voters who use the Libertarian straight-ticket device, and who do not make a separate individual vote for a presidential candidate listed on the ballot, be tallied for the Libertarian Party presidential electors and the party’s vice-presidential nominee. They aren’t "sore losers" and they were validly nominated.

Mississippi: on September 5, two days before the deadline for qualified parties to submit their presidential elector candidates, the Justice Party submitted its list. On September 10, after it was too late to amend the list, state election officials told the Justice Party that one of its presidential elector candidates is not a registered voter. He had thought he was registered, but his registration had been canceled after he was convicted of a crime in 2007, and he was not aware of the cancellation.

The State then started printing ballots without the Justice Party’s presidential nominee on the ballot, even though in past years, Mississippi has printed presidential candidates on the ballot even though they did not submit a complete list of presidential elector candidates. Specifically, in 1972 and 1980 the Socialist Workers Party did not submit a complete list of elector candidates in Mississippi.

Ohio: on September 14, the Sixth Circuit affirmed the decision of a U.S. District Court that Greg Jolivette cannot be on the November ballot as an independent candidate for legislature. He had enough valid signatures, but the state said he had too much association with the Republican Party to be considered eligible to be an independent candidate. Jolivette v Husted, 12-3998. Jolivette argued the law is hopelessly vague, but the Sixth Circuit said it wouldn’t consider that argument because he hadn’t raised it in the court below. The vote was 2-1. On September 26, the Sixth Circuit refused to reconsider. The statutory law only says that independent candidates must not have run in a party primary. Jolivette did not run in a party primary, but he had petitioned to be on the Republican primary ballot, and then withdrawn.

Oklahoma: on September 13, the State Supreme Court ruled that Americans Elect’s state officers may not nominate candidates for presidential elector pledged to Gary Johnson. Lawhorn v Ziriax, 2012 OK 78. The decision merely parrots the state’s brief, and does not even acknowledge the arguments of the Americans Elect state officers.

The decision says the national leaders of Americans Elect don’t want any of their state affiliates to have any nominees this year. The decision mentions that the national Americans Elect officers have a trademark. The decision does not mention the only reported decision about whether parties can trademark their names and thereby overcome state election law.

That decision, from the Ninth Circuit earlier this year, said party trademarks cannot override state election law. Washington State Republican Party v Washington State Grange, 676 F.3d 784.

The decision does not mention the long history of U.S. presidential elections, in which state party officers, not national party officers, have always had control over which presidential nominee is placed on the ballot in that state. When there has been a conflict, in all cases the state party officers have won the fight.

The Justices of the Oklahoma Supreme Court did not even hear the oral argument in this case. They appointed a referee to hear the case, which she did on September 5. The Court’s decision is unanimous.

In at least two states, challenges to ballot position for minor parties were prepared, but then the challengers simply gave up before their cases were heard. In New Hampshire, a group of Republican activists prepared a challenge to the Libertarian Party petition, on the grounds that the petition should not have been circulated until January 1, 2012. The New Hampshire law concerning the party petition, sec. 655:40a, does not say the party petition cannot be circulated earlier than January 1. But another law, 655:40, says that petitions in general cannot be circulated early. The law is thus ambiguous. It is thought that the Se
cretary of State, who had already told the Libertarian Party that it could circulate the party petition during 2011, persuaded the challengers not to file the challenge.

In Ohio, on August 24, a group of Republican activists filed a challenge to the ballot placement of Gary Johnson on the ballot. The challenge was not revealed to the Libertarian Party until August 31. The basis for the challenge is that Ohio bars independent presidential candidates if they ran in a party primary.

The challengers admitted that Johnson had not run in the Ohio Republican primary in March, but they said the fact that his name had appeared on Republican presidential primary ballots in Florida, Georgia, Michigan, Mississippi, Missouri, New Hampshire, South Carolina, and Tennessee meant that the Ohio law still controls. The challenge was weak because Ohio’s "sore loser" law only applies to independent candidates, and in Ohio and almost all states, Johnson is the nominee of the Libertarian Party. On September 1, Saturday, the challengers withdrew their complaint. It is believed that the Secretary of State informally asked that the challenge be dropped. The fact that he had not notified the Libertarian Party about the challenge until a week had passed would have drawn bad publicity.

California: during the last week of August, a professional petitioner who lives in Wisconsin, but who seeks to work in California, sued nineteen counties to overturn the law that says out-of-state circulators are not permitted to work. His name is Robert R. Raymond. All of his cases are in federal court., in the Eastern District and the Northern District. He sued all the counties that told him they won’t permit him to work. He may soon also sue counties that didn’t respond to his inquiry.

Connecticut: on September 26, the State Supreme Court unanimously ruled that the Republican Party should be listed first on state ballots. The law says the party that got the most votes for Governor should be listed first. The Secretary of State, a Democrat, had interpreted the law to mean that the Democratic Party should be first on the ballot. The Democratic nominee for Governor had been elected in 2010, but only because he was the nominee of both the Democratic Party and the Working Families Party. Republican Party of Connecticut v Merrill, SC 19010.

~	# seats	Dem.	Rep.	Lib’t.	Green	Consti.	SocWk	other(1)	other(2)	indp.
Ala	7	6	7	0	0	0	0	0	0	0
Alas	1	1	1	1	0	0	0	0	0	1
Ariz	9	9	8	6	1	0	0	2	0	0
Ark	4	3	4	4	4	0	0	0	0	0
Cal	53	50	44	0	0	0	0	0	0	4
Colo	7	6	7	7	3	3	0	0	0	3
Ct	5	5	5	1	2	0	0	0	0	1
Del	1	1	1	1	1	0	0	0	0	0
D.C.	1	1	0	1	1	0	0	0	0	0
Fla	27	24	24	1	0	0	0	0	0	16
Ga	14	11	14	0	0	0	0	0	0	0
Hi	2	2	2	0	0	0	0	0	0	0
Id	2	2	2	1	0	0	0	0	0	1
Ill	18	18	18	0	2	0	0	0	0	3
Ind	9	9	9	5	0	0	0	0	0	0
Iowa	4	4< /td>	4	0	0	0	1	0	0	5
Kan	4	2	4	3	0	0	0	0	0	0
Ky	6	6	6	1	0	0	0	0	0	4
La	6	3	6	5	0	0	0	0	0	4
Maine	2	2	2	0	0	0	0	0	0	0
Md	8	8	8	8	2	0	0	0	0	0
Mass	9	9	6	1	0	0	0	0	0	3
Mich	14	14	14	14	7	5	0	1	0	2
Minn	8	8	8	0	0	0	0	2	0	0
Miss	4	2	4	2	0	1	0	2	0	2
Mo	8	8	8	8	0	2	0	0	0	0
Mont	1	1	1	1	0	0	0	0	0	0
Neb	3	3	3	0	0	0	0	0	0	0
Nev	4	4	4	2	0	4	0	0	0	1
N H	2	2	2	2	0	0	0	0	0	0
N Jer	12	12	12	4	2	1	0	2	0	20
N Mex	3	3	3	0	0	0	0	0	0	0
N York	27	27	26	2	8	1	1	2	2	1
No C	13	13	13	3	0	0	0	0	0	0
No D	1	1	1	1	0	0	0	0	0	0
Ohio	16	15	15	7	3	0	0	0	0	0
Okla	5	5	5	2	0	0	0	0	0	4
Ore	5	5	5	3	2	2	0	1	0	0
Penn	18	18	18	1	0	0	0	0	0	5
R I	2	2	2	0	0	0	0	0	0	2
So C	7	6	6	1	2	0	0	0	0	0
So D	1	1	1	0	0	0	0	0	0	0
Tenn	9	8	9	1	5	0	0	0	0	12
Tex	36	26	35	34	13	0	0	0	0	1
Utah	4	4	4	1	0	2	0	0	0	2
Vt	1	1	1	0	0	0	0	1	0	2
Va	11	11	11	0	1	0	0	4	0	4
Wash	10	10	10	0	0	0	0	0	0	0
W Va	3	3	3	0	0	0	0	0	0	0
Wis	8	8	8	1	0	0	0	0	0	1
Wyo	1	1	1	1	0	1	0	1	0	0
TOTAL	436	404	415	137	59	22	2	18	2	104

Page four shows the number of U.S. House candidates for each party, and the number of independent candidates. Parties in the "other(1)" column are: Arizona, Americans Elect; Michigan, Natural Law; Minnesota, Independence; Mississippi, Reform; New Jersey, Reform; New York, Conservative; Oregon, Progressive; Vermont, Liberty Union; Virginia, Independent Green.

The party in the "other(2)" column is: New York, Working Families Party.

"SocWk" = Socialist
Workers; "Consti" = Constitution. The chart includes the office of Delegate to the U.S. House from Washington, D.C.

The Democratic Party only has candidates on the ballot in 404 of the 436 districts. That is the lowest number for that party since 2004, when it had candidates in 400 districts. The Republican Party only has candidates on the ballot in 415 districts, fewer than in 2010. The Republican Party decline between 2010 and 2012 is largely due to the new California top-two system, which has kept all Republicans off the ballot in 9 U.S. House districts in that state. By contrast, in 2010, the California Republican Party had a nominee in all 53 districts.

Gary Johnson, Libertarian: at least 95.1% of the voters will see his name on ballots. He is on in all jurisdictions except Michigan and Oklahoma, although it is still possible he will be on in Michigan. His label is "Libertarian" in all states except Alabama and Tennessee. He has write-in status in Michigan.

Jill Stein, Green: 83.1% of the voters will see her name. She is on in all jurisdictions except Connecticut, Georgia, Indiana, Kansas, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Oklahoma, South Dakota, Vermont, and Wyoming. Her label is whatever the Green Party’s normal label in each state is, except that her label is "independent" in Alabama. She has declared write-in status so far n Connecticut, Georgia, Indiana, and Missouri.

Virgil Goode, Constitution: 49.9% of the voters will see his name. He is on in Alabama, Colorado, Florida, Idaho, Iowa, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. He has declared write-in status so far in Arizona, Illinois, Indiana, Kansas, Maine, Maryland, Montana, North Carolina, Texas, and West Virginia.

Rocky Anderson, Justice: 28.1% of the voters will see his name. He is on in Colorado, Connecticut, Florida, Idaho, Louisiana, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Tennessee, Utah, Vermont, and Washington. He has declared write-in status so far in Alaska, Arizona, Delaware, D.C., Georgia, Illinois, Kansas, Maine, Maryland, Montana, Nebraska, New York, Texas, West Virginia, and Wisconsin.

Peta Lindsay, Party for Socialism and Liberation: 28.6% of the voters will see her name, or the name of her stand-in, Gloria LaRiva. Either Lindsay or LaRiva is on the ballot in Arkansas, Colorado, Florida, Iowa, Louisiana, Minnesota, New Jersey, New York, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Her party is the only party this year that tried to get on the ballot in more than three states, and which successfully got on the ballot in every state that it attempted.

Roseanne Barr, Peace and Freedom Party: 18.5% of the voters will see her name. She is on in California, Colorado, and Florida. She has declared write-in status so far in Wisconsin.

Thomas Hoefling, America’s Party: 18.5% of the voters will see his name. He is on in California, Colorado, and Florida. He has declared write-in status so far in Texas, West Virginia, and Wisconsin.

James Harris, Socialist Workers Party: 12.0%% of the voters will see his name on the ballot. He is on in Colorado, Iowa, Louisiana, Minnesota, New Jersey, and Washington. He has declared write-in status so far in New York.

Stewart Alexander, Socialist: 10.5% of the voters will see his name on ballots. He is on in Colorado, Florida, and Ohio. He has declared write-in status so far in Indiana and Texas.

Tom Stevens, Objectivist: 8.2%% of the voters will see his name. He is on in Colorado and Florida.

Merlin Miller, American Third Position: 6.7% of the voters will see his name. He is on in Colorado, New Jersey, and Tennessee. He has declared write-in status so far in Maryland and West Virginia.

Andre Barnett, Reform: 6.4 % of the voters will see his name. He is on in Florida.

Jerry White, Socialist Equality: 5.6% of the voters will see his name on ballots. He is on in Colorado, Louisiana, and Wisconsin.

Richard Duncan, Independent: 4.3% of the voters will see his name. He is on in Ohio. He has declared write-in status so far in Alaska, Florida, Kentucky, Maryland, and West Virginia.

Samm Tittle, We the People: 3.3% of the voters will see her name. She is on in Louisiana and has declared write-in status in West Virginia.

Jeff Boss, NSA Did 911: 2.9% of the voters will see his name. He is on in New Jersey.

Randall Terry: 2.5% of the voters will see his name. He is only in Kentucky, Nebraska, and West Virginia. He has declared write-in status so far in Colorado.

Jim Carlson, Grassroots: 2.2% of the voters will see his name. He is on in Minnesota.

Dean Morstad, Constitutional Government: 2.2% of the voters will see his name. He is on in Minnesota. He has declared write-in status so far in Utah.

Jill Reed, Twelve Visions: 1.8% of the voters will see her name. She is on in Colorado.

Jack Fellure, Prohibition: 1.5% of the voters will see his name. He is on in Louisiana.

Will Christensen, Oregon Constitution Party: 1.4% of the voters will see his name. He is on in Oregon.

Jerry Litzel, independent. 1.2%% of the voters will see his name. He is on in Iowa.

Barbara Washer, Mississippi Reform Party: 1.0% of the voters will see her name. She is on in Mississippi.

Chuck Baldwin, Kansas Reform Party: .9% of the voters will see his name. He is on in Kansas.

Republican Party: nominated Mitt Romney on August 28. He received 2,061 votes; Ron Paul received 190; Rick Santorum received 9; these three candidates each received one: Michele Bachmann, Jon Huntsman, Buddy Roemer. Also there were 13 abstentions and 10 not recorded.

Democratic Party: nominated President Obama on September 5. The vote was unanimous.

Working Families Party of New York: nominated President Obama on September 5.

Conservative Party of New York: nominated Mitt Romney on September 8.

Independence Party of New York: held its presidential convention on September 22. That was too late for the party to choose anyone; the deadline for that had been September 10. Therefore, the party nominated no one for President for the first time since it has been ballot-qualified. In 2008 it had nominated John McCain.

The South Carolina ballot for the State House, 26^th district, will include only one independent candidate and one Libertarian. The independent is Raye Felder, who had desired to run in the Republican primary, but she was kept off the primary ballot, and since no one else was running in that primary and since South Carolina doesn’t permit write-ins in primaries, the Republican Party was not able to nominate anyone. The Libertarian is Jeremy C. Walters. The district is a new district, with no incumbent, and is centered on Fort Mill, a suburb of Charlotte, North Carolina.

This year, 27 presidential candidates are on the ballot in at least one state (see page five). This is the largest number in U.S. history; the previous record had been 23.

In recent presidential elections, there
are invariably five or six individuals who get on the ballot in just one state. These individuals are best described as independent candiates, even though in some states they are free to choose a label other than just "independent", and some reference books will assume these labels represent actual party organizations, when they don’t.

Another reason for the large number of candidates is factionalism within minor parties. For example, this year the Reform Party of Mississippi and the Reform Party of Kansas, both ballot-qualified, ignored the national convention of the Reform Party and chose their own nominees.

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