PRESIDENTIAL DEBATES LAWSUIT FILED
LEVEL THE PLAYING FIELD, LIBERTARIANS, GREENS SUE FEC

On June 22, a lawsuit was filed to expand entry into the general election presidential debates. The plaintiffs include Level the Playing Field, Peter Ackerman, the Libertarian Party, and the Green Party. The combination of those plaintiffs is a striking feature of the lawsuit. Level the Playing Field is a successor organization to Americans Elect, and Peter Ackerman was the chief force behind Americans Elect. This is the first joint venture of the Americans Elect team with any political parties.

The case is Level the Playing Field v Federal Election Commission, U.S. District Court, Washington D.C., 15cv-961. It is assigned to U.S. District Court Judge Tanya S. Chutkan, an Obama appointee.

Americans Elect had been formed in 2010, and it petitioned to qualify itself as a political party all during 2011 and the first five months of 2012. It was well-funded, and hoped to attract a prominent centrist to run for president in the general election of 2012. Although Americans Elect was legally and technically a political party, its goal was not to create a bona fide new party, but simply to ease the ballot access burden for an independent presidential candidate. Americans Elect held an on-line "primary" to choose a 2012 presidential nominee, which was won by former Louisiana Governor Buddy Roemer. However, Roemer did not get nearly enough on-line votes to meet the Americans Elect minimum, and Americans Elect decided not to run any presidential nominee, and disbanded.

In the latter months of 2011, former Utah Governor Jon Huntsman for a while decided to seek the Americans Elect nomination, but then lost interest and instead sought the Republican nomination.

Americans Elect learned from this experience that the exclusionary nature of general election presidential debates was a major reason no truly prominent candidate wanted the Americans Elect nomination, and its leaders then created Level the Playing Field to work for reform of the debates.

The lawsuit depends on the fact that federal campaign finance law, and FEC regulations, require debate sponsors (for federal office) to be truly nonpartisan, and to have objective standards on who may participate.

The Complaint shows why the Commission on Presidential Debates is not truly nonpartisan. The dominant figure in the Commission on Presidential Debates has always been Frank Fahrenkopf, who has been a co-chair of the CPD during its entire existence. He was national chairman of the Republican Party 1983-1989. He has given over $90,000 to Republican candidates since he has been a co-chair of CPD. During the 2012 presidential election, he was head of the American Gaming Association, which spent more than $3,500,000 on lobbying in 2011 and 2012 and which gave over $150,000 to Democratic and Republican candidates in those two years. He has described himself as "the Wizard of Oz" for his "behind the scenes" activities, and he has referred to the CPD as "my commission."

Many of the fifteen Commissioners of the CPD appear to be figureheads. The Board may meet as infrequently as once per year, and generally by conference call. For years, the CPD reported in IRS filings, under penalty of perjury, that its board members devoted zero hours per week to the organization, even in presidential election years.

Many board members do not even attend the debates. Some of the board members are individuals who have given large contributions to Democratic or Republican candidates.

Federal campaign law does not permit corporations to make campaign contributions to political parties or federal candidates (the Citizens United decision did not deal with contributions, only independent expenditures). The CPD receives millions of dollars in contributions to pay for the debates. It does not reveal its contributors, but it is known that the great bulk of contributions come from for-profit corporations, such as Anheuser-Busch, Southwest Airlines, Electronic Data Systems, AT&T, American Airlines, Ford, Philip Morris, IBM, J.P. Morgan, and BBH New York.

The Complaint charges that these corporate contributions are campaign contributions to the Democratic and Republican presidential nominees, and are therefore illegal. The Complaint also points out that the Political Action Committees of these corporations regularly contribute heavily to Democratic and Republican candidates.

The Complaint summarizes social science evidence that the 15% poll standard, in practice, can never be met by any presidential candidate who does not go through the major party primary process, unless that candidate spends more than $250,000,000. In reality, therefore, the criteria are not neutral. The Republican and Democratic nominees, by virtue of going through their party’s presidential primaries, will always meet the 15% polling standard by virtue of a majority of Americans being partisan Democrats or partisan Republicans.

The Complaint also charges that the CPD breaks federal law by failing to disclose its donors.

The Complaint summarizes evidence that polling is no longer accurate, especially when it includes more than two candidates. And it points out that the CPD never announces which polls it will use to measure any candidate’s support.

The Complaint charges that the FEC broke its own rules by ignoring Level the Playing Field’s request for a rule concerning the CPD, for 284 days, when the rules say the FEC should have acted within 120 days. The Complaint asks that the FEC either act within 30 days, or else that the Court itself hear the case against the CPD.

In related news, on June 17 the Annenberg Working Group on Presidential Campaign Debate Reform issued a report, saying that a majority of the Group believes the 15% poll threshold should be lowered to 10%. And on June 3, Independent Voting filed its own petition with the FEC, asking for debate reform.

During June, the U.S. Supreme Court issued two opinions that are not election law decisions, but which will help lawsuits against restrictive and discriminatory election laws.

Content Based Speech Restrictions

On June 18 the Court issued Reed v Town of Gilbert, Arizona, 13-502. It struck down a town ordinance that had different rules for signs posted on private property, depending on the content of the sign. If the sign had an ideological message, it could stay up indefinitely, and be up to 20 square feet. But if it announced the location and time of some public event, it could only be posted no earlier than 12 hours before the event, and had to be removed no later than one hour after the event ended. Furthermore those signs could only be six square feet.

The decision says all signs must be treated the same, regardless of their content, unless there is a compelling state interest not to treat them the same. "A speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter." If one type of sign can remain up indefinitely and be 20 square feet, then all signs can remain up and be that large. The principle applies to speech generally, not just signs.

Voting is speech. Five states ban all write-in votes. Those states are saying, in effect, that the content of a voter’s vote determines whether it can be expressed. These five states (Hawaii, Nevada, South Dakota, Oklahoma, and Louisiana) are letting some views be expressed, and not letting other views be expressed. The U.S. Supreme Court decision from 1992 upholding Hawaii’s ban on write-in voting, Burdick v Takushi, 502 US 428, says, "There is nothing content based about a flat ban on all forms of write-in ballots." That sentence is not true. Write-in bans prohibit votes for candidates who are not strong enough to get on the ballot. Therefore, they prohibit a voter from expressing support for weak candidates, and under the principle set forth in Town of Gilbert, they should be re-examined and overturned.

Facial Challenges

On June 22, the Court issued City of Los Angeles v Patel, 13-1175. It struck down an ordinance that police may inspect any hotel or motel’s check-in records without a warrant, at any time. The Supreme Court struck down the ordinance.

The decision is important for all constitutional challenges to laws, because it makes it easier to win a ruling that the challenged law is unconstitutional on its face. The key sentence is, "The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant."

To show how this is important, consider lawsuits against early deadlines. Four times the U.S. Supreme Court has ruled against early deadlines for independent candidates and newly-qualifying parties. Nevertheless, some lower courts won’t strike down early petition deadlines because these courts want proof that the early deadline has injured the plaintiff. If the candidate or party files the lawsuit before it has missed the deadline, then some lower courts leave the deadline in place on the grounds that there is no evidence that the deadline injured the plaintiffs. But if the plaintiffs wait until after the deadline has passed and then sue, they are in danger that they might lose the case and be off the ballot.

Also, states tend to defend their early deadlines by showing that certain other petitions met the deadline, and they say therefore the deadline is not unconstitutional on its face. The Los Angeles decision clarifies that just because some groups or individuals had no trouble with the challenged law, that does not necessarily defeat a facial challenge. Deadline lawsuits are pending in Arizona, Arkansas, and South Dakota.

On June 15, the Libertarian Party and the Constitution Party filed a lawsuit against the new South Dakota petition deadline for newly-qualifying parties. Libertarian Party of South Dakota v Krebs, 4:15cv-4111. It was assigned to U.S. District Judge Karen E. Schreier, a Clinton appointee. Earlier this year the legislature moved the deadline from the 4^th Tuesday in March to the first Tuesday in March. As is well known, South Dakota has harsh winter weather. The ACLU is representing the plaintiffs. Back in 1984, the ACLU won a lawsuit against South Dakota’s February petition deadline, and the state moved it to April, but in 2007 moved it to late March.

Alabama: on June 4, the legislature passed SB 148, which moves the independent presidential petition deadline from September 6 to 82 days before the general election, which would be August 18 in 2016. The Governor did not sign the bill but he did not veto it either, so it is now law. The change will create some hardship, because Alabama doesn’t permit stand-ins for president, so minor parties can’t start this petition until they know who their presidential nominee will be, and they now have less time to finish.

California: on June 3, the Senate passed SB 163, which sets up a pilot project for all-postal voting. It would only pertain to Los Angeles County for 2018 and then would be repealed. The goal is to test the idea. States that already send a ballot in the mail to all registered voters are Colorado, Oregon, and Washington.

California(2): on June 22, the Senate Elections Committee passed SB 49, which lets the Governor cancel a special legislative election when only one candidate files to be on the ballot.

Kansas: on June 8, the Governor signed HB 2104, which repeals the presidential primary, to save money.

Maine: on May 5, the legislature passed LD 176. The Governor did not sign it, but he did not veto it either, so it is law. It makes it illegal for an out-of-stater to ask a voter to sign an initiative petition. It had already been illegal for an out-of-state to sign off as the petition circulator.

Nevada: on June 10, the Governor signed SB 499, which moves the petition deadline for newly-qualifying parties from April to June, and the deadline for non-presidential independents from February to June. This bill only passed because the Green Party had a lawsuit pending. The lawsuit will now be dropped because its goal has been met.

New Hampshire: on June 5, the Governor signed HB 503. It requires the names of presidential primary candidates to be rotated, so that each candidate has an equal chance to be listed first on the ballot in some locality. The state already had ballot rotation for all elections other than the presidential primaries.

New Jersey: on June 22, the Assembly Appropriations Committee passed AB 4574, which provides for early voting, online voter registration, and automatic registration for everyone who obtains a drivers license or state ID. It had originally also include election-day registration, but that was dropped.

New York: on June 24, the legislature passed SB 5958, which moves the presidential primaries from February 2 to April 19.

North Carolina: on June 18, the legislature passed HB 836. It relaxes the state’s strict law requiring voters at the polls to show government photo-ID. Someone who doesn’t have such ID can still vote by revealing the last four digits of the Social Security number, the birthday, and a sworn statement that the voter has had difficulty getting an ID. This bill was a surprise, and passed to avoid the upcoming trials in both federal and state court on the old law’s constitutionality.

North Carolina (2): on June 12, the Governor signed HB 222, which eliminates non-partisan candidate-versus-candidate elections for State Supreme Court Justices, except that new justices must undergo one election. Instead voters will have a chance to vote "yes" or "no" on retaining a particular justice.

Ohio: on June 8, the Governor signed HB 153, which moves the primary (for all office) in presidential years from the first Tuesday after the first Monday in March, to the second Tuesday. The change also automatically gives non-presidential independent candidates a petition deadline that is one week later.

Pennsylvania: Representative Keith Greiner (R-Lancaster) has introduced HB 1318, to move the primary for all office in presidential years from April to the third week in March.

The June 1 BAN reported that a U.S. District Court had struck down three Pennsylvania ballot access barriers. The state has decided not to appeal. The three laws were: (1) the ban on out-of-state circulators; (2) the ban on a voter signing for two minor parties, even if they are running for the same offices: (3) the law requiring each petition sheet to be notarized.

The Libertarian and Green Parties are appealing the points they lost: (1) whether voters from different counties can sign the same petition sheet; (2) whether only registered voters may sign, or whether individuals who are eligible to register may also sign.

American Samoa: on June 5, the D.C. Circuit ruled that the Constitution does not require that the government automatically bestow citizenship on persons born in American Samoa. Tuala v USA, 13-5272.

Guam: on May 8, the Ninth Circuit ruled that a resident of Guam is entitled to get a ruling on whether an existing law discriminates against him. The law says if there is ever a vote on the territory’s future political status, only descendants of people who were living in Guam in 1898 may vote. Davis v Guam, 13-15199. The lower court had refused to decide the case, on the grounds that no one knows if such a vote will be held. The law says it won’t be held until a certain number of people have registered to vote in it. So far most residents of Guam have not bothered to register for that election.

Solutions to Political Polarization in America, edited by Nathaniel Persily, Cambridge University Press Books, 2015, 304 pages.

This book contains chapters written by twenty social scientists and two law professors, most of them presenting their individual ideas on how to ease political polarization in the United States.

The authors do not agree with each other and sometimes even disagree about the data, e.g., whether the number of independent voters is higher now than in the past, or whether political elites are more polarized than ordinary voters. But, that is part of the value of the book; it presents different perspectives.

The introduction defines "polarization" to include hyperpartisanship, gridlock, and incivility when people are talking about politics or are engaged in political activity.

Arend Lijphart has the book’s boldest idea: abolish primary elections. It is very rare for any U.S. academic or journalist to express this opinion, even though it should be an obvious idea. No other nation in the world has government-administered primaries for political parties to nominate candidates, and the United States didn’t have them either, until the 1900’s decade.

Lijphart also suggests proportional representation or instant runoff voting, public financing of election campaigns, an end to the U.S. Senate filibuster, full voting rights for the District of Columbia, and other ideas.

Gary C. Jacobson suggests top-two primaries, although he calls them open primaries. He acknowledges that this idea in California hasn’t actually done much to reduce polarization, but says "they may be worth pursuing for want of better options."

One of the odd things about Jacobson’s chapter, and several other chapters that mention top-two systems, is that they don’t mention that Louisiana has used a type of top-two for forty years now. The word "Louisiana" does not appear in the book anywhere. Nor do the authors discuss Washington state’s top-two system.

Elaine C. Kamarck suggests holding primaries in all states on the same day, and also suggests requiring supermajorities for selection of congressional leadership. She also suggests top-two systems, yet she is so poorly informed about the California top-two system (the only one she mentions) that she says California had a closed primary before the top-two system started. Actually California had semi-closed Republican and Democratic primaries in the decade before top-two started.

Jonathan Rodden, along with several other authors, suggests either compulsory voting or lottery-style payments to increase turnout. He also recommends the German type of proportional representation.

Editor Nathaniel Persily recommends strengthening political parties, and makes a convincing case. Nolan McCarty’s chapter also recommends strengthening parties. Richard H. Pildes also advocates strengthening parties, especially putting more power into the hands of party leaders in each house of Congress.

Bruce Cain advocates two ideas: a voucher system of public financing of campaigns, and a particular type of filibuster reform called a "storage votes" scheme, in which members of Congress would have a limited number of chances to delay votes.

Markus Prior and Natalie Jomini Stroud advocate organized efforts to persuade moderate voters to vote, and encouraging the media to develop tools to broaden the minds of closed-minded voters who rarely entertain arguments against their own political beliefs.

Adam Bonica advocates educating voters about the ideology of candidates that appear on their ballots.

Alan Abramowitz recommends concurrent elections for Congress and President, i.e., four-year terms for all members of Congress, held simultaneously with presidential elections. He also recommends making it easier for resident non-citizens to become citizens.

David Karol writes, "Once it is accepted that parties will not and should not be reformed away and that polarization is normal and natural, prospects for institutional reform may improve…discussion of constitutional reform is a prerequisite to change, and educating Americans about the unusual nature of our system and its attendant dysfunctions is a worthwhile activity for scholars and public-minded foundations." He favors a parliamentary system, which would generally end divided government.

Steven E. Smith favors reform of the U.S. Senate rules, and better journalism.

Russell Muirhead believes that if a centrist party could elect some members of Congress, who might even hold the balance of power, Congress would improve.

Sarah A. Binder and Frances E. Lee want to improve the ability of members of Congress to negotiate successfully with each other, and suggest ideas for that. The chapter by George C. Edwards III is similar, with a special emphasis on the advantages of negotiations being conducted out of the public eye. Jane Mansbridge also suggests ideas for better negotiation; she praises multi-party systems, which foster better negotiating skills; and she mentions that long-term members of Congress are better negotiators.

This review doesn’t have space to mention all the ideas of each author, much less their arguments. The book should be read by everyone interested in U.S. politics, especially people interested in political parties.

STATE	REQUIREMENTS		SIGNATURES OR REGIS. OBTAINED			DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	Full Party	Pres Party	Pres. Indp.
Ala.	35,413	5,000	0	0	0	*Mar. 1	*Mar. 1	*Aug. 18
Alaska	(est) (reg) 8,400	#3,005	already on	*1,716	*finished	May 2	Aug. 10	Aug. 10
Ariz.	20,119	(est) #36,000	already on	already on	0	March 3	Sep. 9	Sep. 9
Ark.	10,000	#1,000	*already on	*700	0	*Sep 2 ‘15	Aug. 1	Aug. 1
Calif.	(es) (reg) 61,000	178,039	already on	already on	355	Jan. 4	July 11	Aug. 12
Colo.	(reg) 1,000	#pay $1,000	already on	already on	already on	Jan. 8	Aug. 10	Aug. 10
Conn.	no procedure	#7,500	can’t start	can’t start	can’t start	– –	Aug. 10	Aug. 10
Del.	(est.) (reg) 650	(est.) 6,500	already on	already on	366	Aug. 20	Aug. 20	July 15
D.C.	no procedure	(est.) #4,600	can’t start	already on	can’t start	– –	Aug. 10	Aug. 10
Florida	be organized	119,316	already on	already on	already on	April 15	Sep. 1	July 15
Georgia	51,912	#49,336	already on	can’t start	can’t start	July 12	July 12	July 12
Hawaii	707	#4,347	already on	already on	*50	Feb. 24	Aug. 10	Aug. 10
Idaho	13,047	1,000	already on	can’t start	already on	Aug. 30	Aug. 30	Aug. 24
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	– –	June 27	June 27
Indiana	no procedure	#26,654	already on	0	0	– –	June 30	June 30
Iowa	no procedure	#1,500	0	0	0	– –	Aug. 19	Aug. 19
Kansas	16,960	5,000	already on	0	0	June 1	June 1	Aug. 1
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	– –	Sep. 9	Sep. 9
La.	(reg) 1,000	#pay $500	already on	already on	185	May 21	Aug. 19	Aug. 19
Maine	(reg) 5,000	#4,000	*500	already on	0	Dec 1 2015	Aug. 1	Aug. 1
Md.	10,000	(est.) 38,000	already on	already on	0	Aug. 1	Aug. 1	Aug. 1
Mass.	(est) (reg) 45,000	#10,000	10,920	already on	96	Feb. 2	Aug. 2	Aug. 2
Mich.	31,519	30,000	already on	already on	already on	July 21	July 21	July 21
Minn.	98,770	#2,000	0	0	0	May 2	Aug. 23	Aug. 23
Miss.	be organized	1,000	already on	already on	already on	Feb. 1	Sep. 9	Sep. 9
Mo.	10,000	10,000	already on	*500	already on	July 25	July 25	July 25
Mont.	5,000	#5,000	already on	0	0	Mar. 17	Aug. 17	Aug. 17
Nebr.	5,395	2,500	already on	0	0	Aug. 1	Aug. 1	Aug. 1
Nev.	5,431	5,431	already on	300	already on	*June 3	*June 3	July 8
N. Hamp.	14,556	#3,000	can’t start	can’t start	can’t start	Aug. 10	Aug. 10	Aug. 10
N.J.	no procedure	#800	0	0	0	– –	Aug. 1	Aug. 1
N. M.	2,565	15,388	already on	already on	already on	June 30	June 30	June 30
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	– –	Aug. 23	Aug. 23
No. Car.	89,366	89,366	already on	5,442	0	May 17	May 17	June 9
No. Dak.	7,000	#4,000	already on	0	*4,000	Apr. 16	Sep. 5	Sep. 5
Ohio	30,560	5,000	in court	already on	0	July 6	July 6	Aug. 10
Okla.	*24,745	40,047	*200	*200	0	March 1	July 15	July 15
Oregon	22,046	17,893	already on	already on	already on	Aug. 30	Aug. 30	Aug. 30
Penn.	no procedure	(es) #25,000	can’t start	can’t start	can’t start	– –	Aug. 1	Aug. 1
R.I.	16,203	#1,000	0	0	0	Aug. 1	Sep. 9	Sep. 9
So. Car.	10,000	10,000	already on	already on	already on	May 8	May 8	July 15
So. Dak.	6,936	1,075	0	0	*600	*Mar. 1	*Mar. 1	Aug. 2
Tenn.	33,816	275	0	in court	in court	Aug. 10	Aug. 10	Aug. 18
Texas	47,086	79,939	already on	already on	can’t start	May 16	May 16	May 9
Utah	2,000	#1,000	already on	200	already on	Feb. 15	Aug. 15	Aug. 15
Vermont	be organized	#1,000	already on	0	0	Dec 31 ‘15	Aug. 1	Aug. 1
Virginia	no procedure	#5,000	can’t start	can’t start	can’t start	– –	Aug. 26	Aug. 26
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	– –	July 23	July 23
West Va.	no procedure	#6,705	already on	already on	*5,000	– –	Aug. 1	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	April 1	Aug. 2	Aug. 2
Wyo.	3,302	3,302	already on	can’t start	already on	June 1	June 1	Aug. 30
TOTAL STATES ON			31*	21	13	“	“	“

#partisan label is permitted on the ballot (other than "independent").
"CONSTI" = Constitution Party.
The number of signatures for new parties is in court in Tennessee; for independents, in New Mexico.
* = change since April 1, 2015 issue.

On June 2, Arkansas Representative Nate Bell said he has switched from being a Republican to an independent.

This is the sixth time this year that a state legislative seat has switched from being held by a Democrat or Republican, to being held by an independent or minor party nominee. The other switches this year have been a Virginia House seat won by an independent candidate on January 13; a Missouri House seat in which a legislator became an independent on January 26; a Connecticut State Senate won by the nominee of the Working Families Party on February 24; a Maine House seat in which a legislator switched to independent status on April 6; and a New York Assembly seat won by the nominee of the Working Families Party on May 5.

There are sixteen Republicans with the stature to qualify as "bona fide" candidates for the party’s nomination. This presents a problem for sponsors of Republican debates. The first debate is August 6. The sponsor, Fox News, originally said only the ten candidates with the highest poll support could participate. On June 10, Fox said it will sponsor a second debate on the same day for candidates who don’t qualify for the first debate but who are at 1% in the polls.

It is likely that Fox added the second debate because New Hampshire’s biggest newspaper, the Union-Leader, had said it was going to host a debate for the Republicans left out of the original Fox debate.

The sixteen Republicans are Jeb Bush, Ben Carson, Chris Christie, Ted Cruz, Carly Fiorina, George Pataki, Lindsay Graham, Mike Huckabee, Bobby Jindal, John Kasich, Rand Paul, Rick Perry, Marco Rubio, Rick Santorum, Donald Trump, and Scott Walker.

In April 2015, Pennsylvania’s elected State Treasurer resigned. Pennsylvania’s Democratic Governor, Tom Wolf, then appointed Timothy Reese to be Treasurer. Reese is an independent and a venture capitalist. However, the State Senate, which has a Republican majority, refused to confirm Reese, so the state still doesn’t have a Treasurer. The office is up for election in 2016.

On June 22, Jill Stein announced that she will seek the Green Party nomination. She was the nominee in 2012. The Green Party hasn’t set the date or site of its national convention. The Socialist Alternative Party is somewhat likely to assist with her campaign and with 2015-2016 Green Party petitioning.

Some Mexican states held gubernatorial elections on June 7. Nuevo Leon elected Jaime Rodriguez, the first Mexican independent candidate to win a gubernatorial election.

On June 3, the Latvian Parliament chose Raimonds Vejonis to be the new President of Latvia. He is a Green Party politician.

Starting in 1872, the Prohibition Party has had a presidential nominating convention before each presidential election. However, the party has cancelled its next convention, which had been set for June 2015 in Helen, Georgia. Instead the party will nominate a candidate by mail ballot.