BALLOT ACCESS VICTORIES IN CALIFORNIA, PENNSYLVANIA

During the last six weeks, two important ballot access victories were won in two of the largest states in the nation, California and Pennsylvania.

California: on October 18, U.S. District Court Judge Percy Anderson ruled that the deadline for a group to become a qualified party is too early, and therefore unconstitutional. The deadline is in early January if the 1% registration method is used, and even earlier if the 10% petition is used. The law is so badly worded, it is impossible to know the exact deadline for a group that qualifies by petition.

The case was filed and won by the American Civil Liberties Union of Southern California, on behalf of the Justice Party and the Constitution Party. The state is not expected to appeal. The case is California Justice Committee v Bowen, central district, no. cv12-3956. Judge Anderson is a Bush Jr. appointee.

The decision was not too surprising, because Judge Anderson had enjoined the deadline on May 22, and now he has declared it void. This means the California legislature must pass a bill to re-work the system. It is likely that the same bill will contain other ballot access improvements.

The decision will be helpful as a precedent for other lawsuits now pending against too-early deadlines for groups to qualify as political parties. Such lawsuits are pending in Alabama, Hawaii, New Mexico, North Carolina, Oklahoma, and Vermont.

Pennsylvania: three separate decisions from state courts not only put the Libertarian Party statewide nominees on the ballot this year, but set precedents that will help ballot access in other states.

On October 10, the State Supreme Court unanimously ruled that petition signatures are valid, even if the signer filled in the "Date" column on the petition but failed to put the year. Thousands of signatures had this characteristic. When the Libertarian Party had submitted its statewide petition in August, employees of the State Elections Office had lined through all the signatures in which the year was missing. In re Nomination Papers of Robertson, 43 EAP 2012. This ruling appears to reverse an unfavorable ruling from the State Supreme Court from the past, although that decision concerned primary petitions, not general election petitions.

Also on October 10, the Commonwealth Court ruled that during the challenge process, if the challengers fail to object to a particular signature, they cannot later re-open the matter and argue the signatures is invalid. In re Nomination Papers of Robertson, 507 M.D. 2012. That was the clinching opinion that put the statewide Libertarian candidates on the ballot.

But the most important decision was issued by the Commonwealth Court on September 20. In a 29-page opinion, the Commonwealth Court ruled that the federal "Motor Voter" law, passed in 1993, requires states to accept signatures as valid, even if the signer had moved within the county and had signed with the new address but is still registered at the old address. The case name is the same as the one in the paragraph above.

The ruling only covers petitions that pertain to federal office. The precise federal law is 42 U.S.C. 1973. As far as is known, this is the first court to have interpreted the federal law on this point. The vote was 2-1. This decision also appears to overturn an earlier unfavorable decision of the Pennsylvania state courts.

The court had announced its conclusion earlier, on September 13, but did not explain the ruling until September 20.

The reason this case is named "Robertson" is that Margaret Robertson was the stand-in Libertarian presidential candidate listed on the petitions. The ballot will show the final nominee, Gary Johnson, not Robertson. Pennsylvania permits stand-ins on petitions.

On the evening of September 30, a Sunday, California Governor Jerry Brown vetoed AB 145. It would have outlawed paying registration drive workers on a per-registration card basis. If the bill had been enacted into law, it would have made it far more expensive for a minor party to obtain, or retain, its spot on the ballot. Because of the passage of Proposition 14 in 2010, the only method parties have to be considered "qualified" in California is to have registration membership of approximately 105,000. Getting that many people to fill out a voter registration form is very difficult, but it is prohibitive if groups can’t pay workers on a per-registration card basis.

Minor party activists had urged the sponsor of this bill, Assemblyman Richard Pan, to include in his bill a provision lowering the number of registrations needed, but he had refused to do that. Virtually every Democrat in the legislature had voted for the bill; Republicans opposed it.

Also on September 30, Governor Brown vetoed SB 1233, which would have required that initiative circulators must carry copies of proposed measures in various foreign languages.

The Commission on Presidential Debates won’t invite presidential candidates into their debates unless those candidates average at 15% in at least five national polls. But the CPD rules say nothing about which candidates need to be listed in these polls.

During late September and early October, the Johnson campaign commissioned five national public opinion polls from respected polling companies. Respondents in these polls were asked if they prefer President Obama or Gary Johnson for President. No mention was made of Mitt Romney. Not too surprisingly, Johnson easily met the 15% threshold, polling as much as 35% in some of these polls. The Johnson campaign then presented these poll results to the CPD, and asked that he be included in the October 22 debate, the foreign policy debate held in Boca Raton, Florida.

Also, on October 18, the Johnson campaign filed a lawsuit in federal
court in D.C., Johnson v Commission on Presidential Debates, 1:12-cv-1711. However, the campaign did not ask for injunctive relief at that point, because the CPD refused to say for two days whether it would honor Johnson’s request, and one can’t ask a court for relief until the agency responds. The CPD did not refuse Johnson until Saturday, October 20. At that point, the judge informally made it clear that there was no time for injunctive relief, and therefore the campaign did not formally ask for it.

Prior to the October 22 debate, Frank Fahrenkopf, one of the two heads of the Debates Commission, told the press that "a certain candidate" had asked for injunctive relief but had withdrawn it, but this was not accurate. The lawsuit will continue. However, the Commission is free to alter its rules for 2016 to close the loophole that the Johnson campaign found.

Meanwhile, the Commission continues to lose the public relations war. Johnson, Jill Stein, Virgil Goode, and Rocky Anderson debated each other in Chicago on October 23, in a debate sponsored by Free & Equal. There have been minor party presidential debates in most presidential elections during the last 36 years, but they seldom attract much attention. But the 2012 debate attracted considerable attention. The PBS News Hour with Jim Lehrer (himself a host for the first CPD debate this year) gave the minor party debate 5 minutes and 38 seconds of air time, and the Washington Post not only covered the debate, but went to the trouble to "fact-check" statements made by the candidates.

The Commission lost three of its ten corporate sponsors this year. The three who withdrew are the YWCA, Phillips Electronics, and Bartle Bogle Hegarty (BBH New York), an advertising agency. They withdrew after so many complaints against the CPD for its exclusionary policy. For more about the struggle to persuade the other seven corporate sponsors to withdraw, see opendebates.org.

Arizona: on October 15, the U.S. Supreme Court said it will hear Arizona v InterTribal Council of Arizona, 11-71. This is the case over whether Arizona can require extra information from newly-registering voters when they use the federal Voter Registration form. Arizona wants the applicant to prove he or she is a citizen. The federal form just asks applicants to sign over penalty of perjury that he or she is a citizen. The lower courts had ruled that Congress never intended to let states add supplementary requirements to the federal form.

Kansas: the Constitution Party has not been ballot-qualified in this state since 2002. On September 18, the 10^th circuit ruled that the state need not let voters register as members of the Constitution Party.

Kansas is in the 10^th circuit, and the 10^th circuit ruled in 1984 that states with registration-by-party must let voters register into unqualified parties. However, the 10^th circuit in 1984 had confined its ruling to unqualified parties that place nominees on the ballot. The recent decision of the 10^th circuit said the Kansas Constitution Party doesn’t meet that criterion. Although the party did complete the independent candidate petition for its 2004 presidential nominee, Michael Peroutka, that was too long ago to count. Constitution Party of Kansas v Biggs, 11-3152.

New Jersey: on October 10, a lower state court enjoined a state law that requires petitioners for local office to be residents of that locality. Empower Our Neighborhood v Guadagno, Mercer County, L-3148-11. In-district residency requirements for candidates for U.S. House and state legislature had already been struck down in 2007.

New Mexico: on October 11, the Democratic Party sued the Secretary of State, demanding that she put a straight-ticket device on the ballot. The State Supreme Court sent the case to federal court, which has not done anything meaningful with the case so far. The law does not authorize a straight-ticket device, but the Democratic Party quotes a law that says a logo should be placed next to the party’s "ticket", and says this means a straight-ticket device.

Washington: on October 1, the U.S. Supreme Court refused to hear the Democratic-Libertarian Party lawsuit against the top-two system. The 9^th circuit had upheld Washington’s law. The Republican Party had been part of the case when the case was in the 9^th circuit, but did not participate in the appeal to the U.S. Supreme Court. The Republican Party wanted to be part of the appeal, but Attorney General Rob McKenna, the Republican candidate for Governor this year, exerted his influence to keep the Republicans off the U.S. Supreme Court brief. Washington State Democratic Central Committee v Washington State Grange, 11-1263.

Independents Rising: Outsider Movements, Third Parties, and the Struggle for a Post-Partisan America, by Jacqueline S. Salit, 238 pages, 2012 by Palgrave Macmillan.

The author is a key leader of a tightly-knit group of friends and associates, mostly residents of New York, who have been striving for influence and power since the mid-1970’s. The group, under the leadership of Fred Newman, originally held itself out as a Marxist political party named the International Workers Party. In 1979 the IWP leaders, with some insurgent Democrats, formed the New Alliance Party. At first it contested elections only in New York city. In 1982 it went statewide, and in 1983 it launched itself as a national political party. It ran Dennis Serrette for President in 1984, and Lenora Fulani for President in 1988 and 1992.

Then the group dissolved the New Alliance Party and formed the Patriot Party, in combination with some Ross Perot supporters who wanted to build a new political party. In 1995, when Perot formed his Reform Party, the Patriot Party folded itself into the Reform Party.

In late 1999, the Newman-Salit group agreed to support Pat Buchanan for the Reform Party nomination, with the understanding that he would run a non-ideological campaign. But even before he got the nomination, he reneged, and the Newman-Salit forces then tried to prevent Buchanan from gaining the nomination. Although they could not stop him, they did help to lead the New York branch of the Reform Party (which was always called the Independence Party of New York) out of the Reform Party.

Factionalism in the Independence Party of New York caused the Newman-Fulani forces to lose influence in the state party in 2006. But they retained control of the New York city party.

The city organization of the Independence Party played a key role in helping Mayor Mike Bloomberg be elected Mayor in 2001, and to be re-elected in 2005 and 2009.

Because Salit has been in the top leadership of her group for 30 years, she is well-placed to write the history of the group. This book fulfils the need for a history of the group, but it only covers the period starting in 1992, and reveals very little about the New Alliance Party itself.

Chapters five, six and seven cover the group’s role in helping elect and re-elect Mayor Bloomberg. The details of the group’s interaction w
ith the Mayor and his top campaign consultants are fascinating.

Chapter four is also very interesting; it covers how the Independence Party maneuvered in New York statewide politics in 2000, especially the complex process by which Hillary Clinton strove to get the Independence Party’s cross-endorsement for U.S. Senate, but failed to receive it.

Chapter two describes the creation of the Patriot Party. Chapter three, another riveting part of the book, describes how the group interacted with Pat Buchanan during 2000. As far as is known, Independents Rising is the only book in existence to give us the story of Buchanan’s 2000 Reform Party nomination. Chapter nine contains a general summary of the relationship of blacks to the Democratic Party. Chapter one describes the 1992 Perot campaign.

The book’s introduction, and chapters eight and ten, set forth the group’s current ideology, which is that political parties are bad for society and that the nation would be better off with non-partisan elections. These chapters disappoint. The key fact these chapters emphasize is that in many public opinion surveys, if respondents are asked if they are Democrats, Republicans, or independents, 40% will respond that they are independents. This statistic has remained fairly constant over the last 20 years.

Salit assumes that because 40% of people self-identify as independents, therefore they are opposed to political parties. This assumption does not follow logically.

If one had asked New York city residents during the 1950’s if they were Brooklyn Dodgers fans, New York Yankee fans, or neither, chances are 30% would have said they are Dodgers fans, 30% would have said they are Yankees fans, and 40% would have said "neither." But because 40% of the population might have expressed little or no interest in either of these teams, it does not follow that they are "anti-baseball"; it just means that don’t care about it.

A great deal of political science research has been done on independent voters, and invariably the conclusions are that, for the most part (there are many exceptions), independent voters are less interested in politics and government, less likely to vote, and less likely to closely follow news about politics.

Independents Rising assumes that independent voters are becoming self-conscious soldiers in a crusade to convert U.S. elections from partisan elections to non-partisan elections. The book’s only evidence for the idea that independents are "anti-party" is a quotation from Fred Newman.

Anyone who wishes to make a case that political parties do more harm than good faces a heavy burden. Political parties exist in every nation in the world that has a population of at least 100,000. They even exist when they are illegal and must be formed underground. Parties are groups of like-minded people who come together to support a common goals. Ordinary individuals who are not wealthy are virtually powerless if they don’t band together in groups.

Political science research, for over a century, has demonstrated that in the absence of political parties, special interests exert more control over government than they would otherwise.

Sociologists agree that voluntary associations, including parties, are needed for a well-functioning society. As long ago as 1830, Alexis deTocqueville said the U.S. is a success because its citizens form so many voluntary organizations.

Every book that relates history invariably has factual errors, but Independents Rising has more than its share. Page five says Ross Perot re-entered the 1992 presidential race in August, but actually he got back in on October 1. Page 25 says Perot was leading in the polls in 1992 in "late April", but actually the first poll that showed him winning appeared in early June.

Page 39 says that the Patriot Party in California in 1995 had 8,000 registrants, but official California data show the Patriot Party never had as many as 900 registrants.

Page 64 says Pat Buchanan "had virtually no impact on the 2000 election", but actually Buchanan votes in Iowa, New Mexico, Oregon, and Wisconsin, were all greater than the narrow margin by which Al Gore defeated George W. Bush in those four states. It is ironic that Ralph Nader only "tipped" two states from Gore to Bush (according to the convention wisdom, which has the ring of truth) but Buchanan tipped four states the other way.

Page 127 says the Reform Party was only on the ballot in 2004 in Colorado, Kansas, Mississippi, and Montana, but actually the party was also on in Florida, Michigan, and South Carolina.

Page 127 says that the Green Party "ran David Cobb only in states that were so firmly ‘red’ or ‘blue’ that the Green vote could not possibly impact the outcome." Actually, Cobb appeared on the ballot in these swing states: Colorado, Florida, Iowa, Nevada, New Mexico, and Wisconsin.

Page 157 says the Independence Party showing for Mayor of New York city in 2009 was "the highest independent vote in a city Mayoral race since 1949."

Actually, in 1969 Mayor Lindsay had been re-elected entirely on minor party lines, and Vincent Impelliteri has been elected in 1950 as an independent candidate.

Page 174 says that when California passed the top-two primary ballot measure in June 2010 with 54% of the vote, that was "the highest margin for a political reform initiative in California in more than a dozen years." Actually, prop. 43, in 2002, which said that all valid votes must be counted, had passed with 71.6% of the vote. Also, of course, the top-two measure was not an initiative; the legislature put it on the ballot.

The most serious error in the book concerns election law. The book says (pages 7 and 10) that in 2008, independent voters could vote in presidential primaries and caucuses in 33 states. Actually, independents could only vote in Democratic presidential primaries and caucuses in 27 states: Alabama, Arkansas, California, Georgia, Idaho, Illinois, Indiana, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, Ohio, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. If one were listing the states in which independents could vote Republican presidential events, the list would be even shorter.

For primaries for office other than President, the book makes the opposite error; it understates the number of states in which independents can vote in primaries. Page ten says that independents can only vote in non-presidential primaries in 25 states, but actually, they can do so in 32 states: Alabama, Alaska, Arizona, Arkansas, California, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.

For Republican primaries, the number of states is 29. This list is applies to 2010, the last election before the book was written.

These errors are significant. The book argues that independent voters are responsible for Barack Obama’s victory over Hillary Clinton in the 2008 primaries and caucuses. The book also says that independents are unjustly locked out of major party nomination processes. Obviously, these two arguments are somewhat contradictory. But the book, by exaggerating the extent to which independents can participate in the Democratic presidential selection process, and minimizing the extent to which they can vote in non-presidential primaries, seems to explain the contradiction to a certain extent. It would be awkward for the book to tell the voters the truth, which is that independents have fewer opportunities to help the major parties pick a presidential nominee, than they do for other office.

Salit never explains how she feels about the year
s she devoted to building a political party. Were they all wasted years? Did the parties she participated in improve the nation? Did they provide satisfaction to her personally? If so, that would seem to undercut her thesis that political parties are harmful. I hope that she writes a new edition of this book, or an entirely new book, that will tell us.

Political science Professor Seth Masket recently delivered a paper about California’s 2012 primary, the first regularly-scheduled primary to use a top-two system. He concludes that the system does not injure the two major parties, and that they are finding ways to retain as much, or more, control over who appears on the general election ballot than they had before. The paper was presented in Ventura, California, at Cal State University Channel Islands.

~	# seats	Rep.	Dem.	Lib’t.	indp.	Green	Consti	other(1)	other(2)	oth(3)
Alas	59	55	46	0	4	0	0	0	0	0
Ariz	90	68	67	5	3	4	0	0	0	0
Ark	135	100	99	5	7	2	0	0	0	0
Cal	100	81	93	0	1	0	0	3	0	0
Colo	85	85	73	52	4	1	10	0	0	0
Ct	187	162	172	1	4	10	0	0	1	2
Del	62	40	53	13	0	0	0	0	0	0
Fla	160	134	101	3	9	1	0	2	0	0
Ga	236	174	116	0	1	0	0	0	0	0
Hi	70	44	68	1	0	2	0	0	0	0
Id	105	104	82	3	6	0	3	0	0	0
Ill	177	122	134	0	2	0	1	0	0	0
Ind	125	109	99	11	0	0	1	2	0	0
Iowa	126	114	103	1	9	0	0	0	0	0
Kan	165	159	120	13	2	0	0	0	0	0
Ky	119	84	88	0	2	1	0	2	0	0
Maine	186	180	174	0 < /font>	17	6	0	0	0	0
Mass	200	87	180	1	13	2	0	0	0	0
Mich	110	110	108	17	3	5	3	0	0	0
Minn.	201	198	200	0	2	0	2	1	12	0
Mo	180	147	122	6	3	0	1	0	0	0
Mont	126	117	110	9	3	0	0	0	0	0
Nev	54	48	48	0	0	0	7	0	0	0
NH	424	389	387	6	9	0	0	2	0	0
NM	112	80	86	1	4	0	0	0	0	0
NY	213	156	192	2	4	13	0	21	6	3
NoC	170	137	130	8	1	0	0	0	0	0
NoD	75	70	67	0	0	0	0	0	0	0
Ohio	117	108	108	6	1	0	0	0	0	0
Okla	125	104	65	1	2	0	0	0	0	0
Ore	76	70	65	15	0	1	5	2	0	0
Pa	228	175	171	3	4	0	1	0	0	0
R I	113	51	109	1	33	0	0	2	2	0
So C	170	120	75	1	36	3	1	0	0	0
So D	105	94	75	0	4	0	0	0	0	0
Tenn	115	99	74	1	12	5	0	0	0	0
Tex	181	143	104	50	0	15	0	0	0	0
Utah	91	90	73	7	2	1	11	1	0	0
Vt	180	101	145	0	25	1	0	13	1	3
Wash	124	99	103	0	6	1	0	1	0	0
W Va	117	92	102	0	2	5	3	1	0	0
Wis	115	88	109	9	5	1	0	0	0	0
Wyo	75	71	24	4	1	0	2	4	0	0
TOTAL	5984	4859	4720	256	246	80	51	108	20	8

Parties in the "other(1)" column are: Ca., Peace & Freedom; Fl, Independent Pty; In, Socialist; Ky, Descendants of American Slaves; Mn, Ecology; NH, Restore the Center; NY, Conservative; Or, Independent Pty; RI, Moderate; Ut, Justice; Vt, Progressive; Wa, Socialist Alternative; WV, American Third; Wy, Country.

Parties in the "other(2)" column are: Ct, Christian Center; Mn and NY, Independence; Vt, Justice.

Parties in the "other(3)" column are: Ct, Independent Party; NY, Working Familes; Vt Liberty Union.

No candidate is counted more than once, even if he or she is the nominee of more than one party.

Page five has a chart that shows how many nominees each political party has this year for state legislative races. 43 states are holding regularly-scheduled legislative elections, and 5,984 seats are up. Democrats lack a nominee for 1,264 seats, and Republicans lack a nominee for 1,125 seats. Those two numbers, added together, equal 39.9% of all the state legislative races.

The U.S. Supreme Court seems persuaded that ballot access laws must be strict because of the danger of over-crowded ballots. But the real danger is under-crowded ballots. The states with the strictest ballot access laws are generally also the states with the fewest major party nominees on the ballot. States in which one or the other of the major parties have nominees for fewer than half the seats are Georgia, South Carolina, and Wyoming (for Democrats); and Massachusetts and Rhode Island (for Republicans). Georgia and South Carolina each happen to require petitions of 5% of the number of registered voters for independent candidates to get on the ballot for the legislature. Massachusetts has the nation’s most severe petition requirements for candidates seeking a place on a primary ballot.

In 2008, when the same seats were up, these parties had this number of nominees: Democrats 4,887; Republicans 4,378; Libertarians 279; Greens 67; Constitution Party 113. The total number of seats up in 2008 was 5,773. The difference in the total number of seats up in 2008, compared to 2012, is that some states have additional State Senate elections in years after redistricting.

On October 24, the Chattanooga Times Free Press endorsed Gary Johnson for President. The daily newspaper has a circulation of 70,000.

The second major party presidential debate was held in Hempstead, New York, on October 16. The Green Party presidential and vice-presidential candidates, Jill Stein and Cheri Honkala, having been barred from the earlier debates, appeared at the event and asked to be admitted to the stage. When they refused to leave the entrance to the hall, they were arrested and kept in shackles for eight hours. The arrest received considerable publicity overseas, and Al Jazeera TV broadcast a long interview with Stein on October 20. Green Parties exist in many countries in the world, and the contrast between Green Party involvement in government and politics in such other nations, and this event in the United States, resonates.

Americans Elect published a Mission Report earlier this year, and included in the report is the statement that the organization spent $1,157,723 for ballot access in 2010, and $10,158,324 in 2011. The report does not have the 2012 figure. Americans Elect qualified as a party in 29 states. It also petitioned in some states but then didn’t submit the petitions. The Report also says the organization will disband itself later this year. However, state ballot a
ccess laws in eleven states provide that the party will be on the ballot automatically in 2014.

Daniel P. Gordon, a Rhode Island state representative who was elected as a Republican in 2010, tried to run for re-election this year as a Libertarian. However, he failed to get enough valid signatures. He is running as a write-in candidate. The only name on the ballot is a Democrat.

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