August 2015 Ballot Access News Print Edition

Ballot Access News
August 1, 2015 – Volume 31, Number 3

This issue was printed on white paper.


Table of Contents

  1. MINOR PARTIES WIN PENNSYLVANIA BALLOT ACCESS CASE
  2. TENNESSEE BALLOT ACCESS WIN
  3. ARKANSAS LEGISLATURE CREATES ABSURD DEADLINES
  4. CALIFORNIA MINOR PARTIES ASK U.S. SUPREME COURT TO HEAR TOP-TWO CASE
  5. MARYLAND BALLOT ACCESS LAWSUIT FILED
  6. PRESIDENTIAL PRIMARY DATE CHANGES
  7. SOUTH DAKOTA REFERENDUM PETITION
  8. U.S. SUPREME COURT
  9. OKLAHOMA DEMOCRATS LET INDEPENDENTS VOTE IN THEIR PRIMARIES
  10. FLORIDA TOP-TWO INITIATIVE
  11. PRESIDENTIAL DEBATES
  12. COMPARE DEADLINES FOR PRESIDENTIAL PRIMARY CANDIDATES vs. INDEPENDENTS
  13. NUMBER OF NAMES ON BALLOT IN REPUBLICAN PRESIDENTIAL PRIMARIES
  14. PENNSYLVANIA GETS AN INDEPENDENT STATE TREASURER
  15. CONSTITUTION PARTY CONVENTION
  16. MAINE LEGISLATOR BECOMES AN INDEPENDENT
  17. PARTY FOR SOCIALISM AND LIBERATION NOMINATES TICKET
  18. FREE & EQUAL ANNOUNCES DATE AND LOCATION FOR FESTIVAL
  19. 2016 PETITIONING
  20. SUBSCRIBING TO BAN WITH PAYPAL

MINOR PARTIES WIN PENNSYLVANIA BALLOT ACCESS CASE
COURT COSTS OF UP TO $110,000 CANNOT BE IMPOSED

On July 24, U.S. District Court Judge Lawrence Stengel, a Bush Jr. appointee, struck down the Pennsylvania system for checking petition validity for minor parties. Constitution Party of Pennsylvania v Cortes, e.d., 12-cv-2726.

That system, in place starting in 2004, puts minor parties and independent candidates for statewide office into a terrible dilemma. If they submit a petition and it turns out not to have enough valid signatures, then they are liable for court costs and attorneys fees which can be as high as $110,000. Ralph Nader, independent presidential candidate in 2004, was the first victim of this system. His 2004 petition didn’t have enough valid signatures, even though he submitted twice as many as the 25,697 requirement. He was assessed $81,102. Even though he fought this outcome for years, while one of his appeals was still pending, almost half the money was seized from his bank account in Washington, D.C.

The next victim was Carl Romanelli, the Green Party nominee for U.S. Senate in 2006. He was ordered to pay $80,407, an amount far in excess of his assets.

After that, minor parties were generally afraid to submit statewide petitions in Pennsylvania. In 2008 only the Libertarian Party even tried, and its statewide petition was not challenged.

But in 2010, both the Libertarian Party and the Green Party withdrew their petitions after they were challenged. The parties were told they might owe as much as $110,000 if the petitions weren’t valid.

In 2012, the Constitution Party withdrew its petition after it was challenged.

The Green Party was not challenged in 2012, perhaps because its petition only nominated for President and Vice-President but not any of the other three statewide offices. The 2012 Libertarian Party petition was challenged, but the party defended its petition successfully.

In 2014 no minor party or independent candidate submitted a statewide petition. Pennsylvania that year was one of five states in which only Democrats and Republicans appeared on the November ballot for all statewide office (the others were Alabama, California, New Hampshire, and New Mexico).

The decision depends on the two U.S. Supreme Court decisions that struck down mandatory filing fees for candidates, and the earlier decision that struck down poll taxes. These decisions said that voters and candidates can’t be deprived of voting rights just because they can’t afford to pay. The decision also depends on decisions from Florida and North Carolina that struck down laws requiring petitioning groups to pay to have their petitions checked.

This case was already three years old. It had been filed in 2012 and Judge Stengel had ruled that the plaintiffs, the Constitution, Green, and Libertarian Parties, didn’t have standing. On July 9, 2014, the Third Circuit reversed that and sent the case back to U.S. District Court for a ruling on the merits.

The decision only apples to the three parties that filed the case, but it is clear that any other party, or any independent candidate, would have an easy time in court if costs were assessed in the future against them. As to Democrats and Republicans, they also petition to get themselves on primary ballots.

However, they never need more than 2,000 signatures, and furthermore the decision notes that no primary candidate has ever been subject to court costs.

The decision says, "The ability of the minor parties to organize and voice their views has been decimated" by the law." It points out that the burden is not just financial. When a petition is challenged, the petitioning candidate or group is expected to marshall dozens of volunteers who must sit all day in government offices, pairing up with volunteers for whomever challenged the petition. Each pair of adversaries must discuss each challenged signature, one at a time, to see if they can agree that the signature is either valid or invalid. Signatures with no consensus are put aside for a judge to settle. In 2012, the Libertarians had to find 70 volunteers to work on this process.

It is now very likely that the legislature will finally pass some ballot access reform bill. Earlier this year three other Pennnsylvania ballot access laws were struck down in a different federal case. And even before this year, there had been seven Pennsylvania ballot access laws that had been declared unconstituitonal, or enjoined, and the legislature has never repaired the election code to acknowledge those decisions either. The most shocking lapse is that in 1984 the May petition deadline for minor party and independent petitions was declared unconstitutional, and the state agreed to an August 1 petition deadline. But the code has never been amended to reflect this.

The case was won by Oliver Hall, who for a decade has been Ralph Nader’s ballot access attorney. Hall is the founder of the Center for Competitive Democracy.


TENNESSEE BALLOT ACCESS WIN

On July 2, the Sixth Circuit upheld a U.S. District Court decision that struck down Tennessee’s law on how a party remains on the ballot. Green Party v Hargett, 14-5435. The Constitution Party was a co-plaintiff. Tennessee requires parties to poll 5% for any statewide office to retain qualified party status. When a party meets this vote test, it is then safely on the ballot for four more years.

But, when a new party gets on the ballot, by petition, it must pass the 5% vote test in its first election, or it is disqualified. It doesn’t have the luxury of being on for two elections. The U.S. District Court had found the law discriminatory, and had put the two plaintiff parties on the ballot for the 2014 election.

Kentucky is also in the Sixth Circuit, and the precedent might be used to improve Kentucky’s vote test, which is 2% for President. Once a party polls 2% for President in Kentucky, it is safely on the ballot for four years. For instance, in 1980, John Anderson polled 2.4% in Kentucky, under the ballot label "Anderson Coalition", and the state recognized it as a qualified party for the next four years. It did not use its status to run anyone at all until 1984, when it again put Anderson on the ballot for President (he was not on the ballot in any other state in 1984).

If there had been another minor party in existence in Kentucky that had got on the ballot in 1983 for the gubernatorial election, it might have done very well, but it would have been immediately removed because only President counts. The Libertarian Party polled 3.1% for US Senate in 2014, but it was immediately removed from the ballot afterwards because only President matters for retention. The Libertarian Party might be able to win a lawsuit that it should be on the ballot in 2016 without a petition, because the old parties are enjoying four years of status from their 2012 results, yet the Libertarian results in 2014 gave it nothing.

The U.S. District Court also struck down the Tennessee loyalty oath for new parties, and the Sixth Circuit again agreed with the U.S. District Court that that law is also unconstitutional. Tennessee tried to defend itself by saying that it doesn’t enforce the law, but the Sixth Circuit said, "The state has not explicitly disavowed enforcing it in the future" and so ruled against the law. The three judges were R. Guy Cole, Deborah L. Cook, and Helene N. White.


ARKANSAS LEGISLATURE CREATES ABSURD DEADLINES

On May 26, in a special session of the Arkansas legislature, SB 8 was introduced. It moved the 2016 primary for all office from May to March. It also moved the petition deadline for a new party to September 2, 2015, and the non-presidential independent candidate petition deadline to November 9, 2015. The bill passed the legislature on May 28 and was signed the same day. It only applies to 2016 and afterwards is automatically repealed.

In the entire history of ballot access laws, no state has ever had petition deadlines that early. In 2000 the U.S. complained that Azerbaijan was violating international democratic norms by having a deadline for a new party to organize that was six months before an election, and yet now Arkansas had a petition deadline for new parties that is 14 months before the election.

The bill also says that newly-qualifying parties must nominate all their candidates for the 2016 election by November 9, 2015. It is likely that the Libertarian Party, which qualified a few months ago, will sue to overturn this deadline for nominating its candidates.

In the meantime, the case that challenges the old March petition deadline for 2014, for non-presidential independent candidates, has oral arguments on July 27. That case is Moore v Martin, e.d., 4:14cv-65.


CALIFORNIA MINOR PARTIES ASK U.S. SUPREME COURT TO HEAR TOP-TWO CASE

On July 28, the California Libertarian Party, the Peace & Freedom Party, and the Green Party of Alameda County asked the U.S. Supreme Court to hear Rubin v Bowen, the case that says the California top-two system gives voters too little choice in general elections for Congress and partisan state office. The state Appeals Court had ruled against the parties, and the State Supreme Court had refused to hear the case.


MARYLAND BALLOT ACCESS LAWSUIT FILED

On July 24, an independent candidate for U.S. Senate in Maryland filed a lawsuit against the number of signatures he needs. He needs approximately 38,000 signatures. The lawsuit points out that an entire new party can get on the ballot for 10,000 signatures, and says there can’t be any good reason to require a single independent candidate to get almost four times as many signatures as a new party. The purpose of ballot access laws is to keep ballots from being too crowded, and a new party can have a much greater impact on the ballot, because it can run a candidate for every partisan office.

Maryland requires more signatures for an independent candidate for U.S. Senate in 2016 than any other state except Texas, Georgia, and North Carolina. The candidate is Greg Dorsey and his lawsuit is Dorsey v Lamone, 1:15cv-2170.


PRESIDENTIAL PRIMARY DATE CHANGES

On July 20, the North Carolina Senate passed HB 373, which moves the presidential primary from February 23 to March 15. On July 23, New York Governor Andrew Cuomo signed SB 5958, which moves the presidential primary from February 2 to April 19.


SOUTH DAKOTA REFERENDUM PETITION

On June 30, the South Dakota Secretary of State said that a referendum petition aimed at stopping SB 69 has enough valid signatures. Therefore, SB 69, which passed the legislature earlier this year and which makes ballot access worse, can’t take effect in 2016. Instead, the voters will vote in November 2016 on whether to repeal SB 69.

SB 69 makes it more difficult for candidates to get on primary ballots, more difficult for independent candidates to get on the ballot, and sets an earlier petition deadline for new parties to submit petitions to be on the ballot.

The South Dakota Libertarian and Constitution Parties had already filed a lawsuit against the part of SB 69 that moves the deadline for a new party petition from March 29 to March 1. On July 9, the state asked the judge to dismiss the lawsuit, on the grounds that the new March 1 deadline won’t be in effect in 2016 and may never been in effect if the voters repeal it.

But, on July 21, the two parties told the court that their lawsuit is also aimed at the old March 29 deadline as well, so it doesn’t matter whether the deadline is March 1 or March 29; they are both too early.

South Dakota is the third example of a state in which a Republican legislature recently passed a law making ballot access worse, and then a referendum petition was successfully filed to stop the new law. The other two instances were Arizona and Ohio. In both of those states, after the referendum petition succeeded, the legislature then repealed the restrictions and the popular vote was never held (unfortunately the Arizona legislature in 2015 re-enacted one of the laws that it had repealed in 2013).

It is conceivable that the 2016 session of the South Dakota legislature might also repeal, or at least improve, SB 69.


U.S. SUPREME COURT

On June 29, the U.S. Supreme Court ruled 5-4 that the state initiative process can be used to change state election laws that affect congressional elections. Arizona State Legislature v Arizona Independent Redistricting Commission, 13-1314. Article One of the Constitution says, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The decision says that "legislature", in this context, means the initiative process as well.

In 2000, Arizona voters approved an initiative for a redistricting commission. The legislature would no longer draw U.S. House district boundaries; instead the Commission would do that. The legislature didn’t like the job the Redistricting Commission did in 2011, so it brought a lawsuit to try regain its power, but it has now lost. The legislature had also lost in the lower court.

Also on June 29, the U.S. Supreme Court refused to hear Kobach v U.S. Election Assistance Commission, 14-3062. The Tenth Circuit had ruled against the states of Kansas and Arizona, over whether those states could force the federal government to alter the federal voter registration forms to require applicants to attach proof of citizenship. The two states then asked for U.S. Supreme Court review, but failed to get it.


OKLAHOMA DEMOCRATS LET INDEPENDENTS VOTE IN THEIR PRIMARIES

On July 25, the Oklahoma Democratic Party leadership voted to allow independent voters to vote in Democratic primaries. This will be the first time either major party has ever allowed Oklahoma independents to vote in their primaries. Other states in which Democrats have a semi-closed primary but Republicans have a closed primary are Idaho, South Dakota, and Utah.


FLORIDA TOP-TWO INITIATIVE

Florida proponents of a top-two system have launched an initiative petition. For state and local partisan office, the election would be in August. All candidates would run on the same ballot and if anyone got 50%, he or she would be elected. If no one got 50% there would be a runoff in November.

But for Congress, all candidates would run in August on the same ballot, and then the top two candidates would run in November, whether anyone got 50% or more in August or not. So for Congress, the initiative would be similar to the system used in California and Washington. It is not clear from the initiative whether write-ins would be allowed in November for Congress.


PRESIDENTIAL DEBATES

On July 16, the Federal Election Commission rejected a request to rewrite the rules on general election presidential debates. Last year some influential figures had asked the FEC to require a more relaxed standard for entry into those debates. The vote was 4-2. Commissioners Ann Ravel and Ellen Weintraub, both Demorats, voted to consider a new rule.

The FEC still hasn’t responded to the lawsuit filed on the same subject. That lawsuit is Level the Playing Field v FEC, U.S. Dist. Ct., D.C., 15cv-961. However, if the lawsuit hadn’t been filed, it is likely the FEC wouldn’t even have voted on the rule-making proposal.

On July 25, Frank Fahrenkopf, co-chair of the Commission on Presidential Debates since 1987, appeared on the Smerconish Show on CNN and said the Commission will decide by October 2015 whether to expand entry. He mentioned a recent suggestion of the Annenberg Working Group on Presidential Debates that the first debate include all candidates at 10% in polls (the current rule is 15%).


COMPARE DEADLINES FOR PRESIDENTIAL PRIMARY CANDIDATES vs. INDEPENDENTS

The chart below shows that filing deadlines for presidential primary candidates are far kinder than petition deadlines for independent candidates.

No state requires a presidential primary candidate to file as early as 116 days before the primary. But 25 states require independent candidates for non-presidential office to file petitions at least 116 days before the general election. When states are sued over too-early deadlines for independents, they usually say that the early deadline is needed to administer the election. If this were true, there would be similar early deadlines for presidential primaries, but there aren’t.

State
Primary
General
Pres. Primary Date
Pres Primary Deadline
Independent Deadline

Ala.

90 days

245 days

March 1

Dec. 2, 2015

March 8

Ariz.

100 days

160 days

March 22

Dec. 14, 2015

June 1

Ark.

112 days

365 days

March 1

Nov. 9, 2015

Nov. 9, 2015

Cal.

68 days

242 days

June 7

March 31

March 11

Ct.

74 days

90 days

April 26

February 12

August 10

Del

60 days

116 days

April 26

February 26

July 15

D.C.

90 days

89 days

June 14

March 16

August 11

Fla.

106 days

186 days

March 15

Nov. 30, 2015

May 6

Ga.

60 days

119 days

March 1

Dec. 30, 2015

July 12

Ida

90 days

242 days

March 8

Dec. 9, 2015

March 11

Ill.

106 days

134 days

March 15

Nov. 30, 2015

June 27

Ind.

98 days

131 days

May 3

January 26

June 30

Ky.

112 days

91 days

May 17

January 26

August 9

La.

92 days

81 days

March 5

Dec. 4, 2015

August 19

Md.

83 days

99 days

April 26

February 3

August 1

Mass.

61 days

98 days

March 1

Dec. 31, 2015

August 2

Mich.

114 days

110 days

March 8

Nov. 15, 2015

July 21

Miss.

84 days

304 days

March 8

Dec. 15, 2015

January 8

Mo.

77 days

106 days

March 15

January 2

July 25

Mt.

75 days

161 days

June 7

March 24

May 31

Neb.

60 days

67 days

May 10

March 11

September 2

N.H.

70 days

90 days

January 26

Nov. 17, 2015

August 10

N.J.

64 days

154 days

June 7

April 4

June 7

N.M.

115 days

133 days

June 7

February 13

June 28

N.Y.

75 days

77 days

April 19

February 4

August 23

No.C.

90 days

152 days

March 8

Dec. 9, 2015

June 9

Ohio

90 days

239 days

March 15

Dec. 16, 2015

March 14

Okla.

83 days

207 days

March 1

Dec. 9, 2015

April 15

Ore.

70 days

70 days

May 17

March 8

August 30

Pa.

70 days

99 days

April 26

February 16

August 1

P. Rico

60 days

?? days

March 13

January 13

???

R.I..

94 days

116 days

April 26

January 23

July 15

So.C.

89 days

116 days

February 20

Nov. 23, 2015

July 15

So.D.

70 days

196 days

June 7

March 29

April 26

Tenn.

91 days

215 days

March 1

Dec. 1, 2015

April 7

Tex.

84 days

138 days

March 1

Dec. 8, 2015

June 23

Vt.

50 days

82 days

March 1

January 11

August 18

Va.

82 days

147 days

March 1

Dec. 10, 2015

June 14

Wash.

75 days

172 days

May 24

March 10

May 20

W.Va.

101 days

99 days

May 10

January 30

August 1

Wis.

91 days

160 days

April 5

January 5

June 1

MEDIAN

84 days

133 days

March 15

January 5

June 28

The "Primary" column tells the INTERVAL in days between a presidential primary and the deadline for candidates to file for that primary. The "General" column tells the INTERVAL between the general election and the deadline for independent candidates for U.S. Senate to submit petitions. All dates are in 2016, unless they say "2015". The chart shows the disparity between how some states treat presidential primary candidates and how they treat independent candidates. Presidential primary candidates always have reasonable deadlines, not far from the date of the primary.

States with no presidential primaries are not included above.


NUMBER OF NAMES ON BALLOT IN REPUBLICAN PRESIDENTIAL PRIMARIES

The chart below shows that Republican presidential primaries in recent years have sometimes been crowded. In 1996 and 2008 there were an average of 8 candidates. In 2016 there are likely to be many states with at least 16 candidates. Yet, no legislature this year has made access to presidential primary ballots any more difficult. Arizona this year made it easier. This shows that state legislatures don’t really believe that ballots with a dozen candidates for a single office cause voter confusion.

State
2012
2008
2004
2000
1996
1992
1988
1984
1980
1976

Alabama

8

11

2

3

4

3

6

– –

8

– –

Arizona

23

24

– –

9

20

– –

– –

– –

– –

– –

Arkansas

4

7

2

2

3

2

7

– –

– –

3

California

6

11

.1

6

9

2

3

1

5

2

Colorado

– –

– –

– –

6

6

7

– –

– –

– –

– –

Connecticut

5

9

– –

7

10

4

5

– –

9

– –

Delaware

4

6

– –

6

7

– –

– –

– –

– –

– –

D.C.

4

5

– –

2

3

2

3

1

5

2

Florida

9

9

– –

6

9

2

6

1

9

2

Georgia

9

9

1

6

10

2

6

1

9

3

Idaho

– –

3

2

3

4

3

3

2

5

3

Illinois

6

9

1

5

8

3

6

1

8

2

Indiana

4

4

1

2

3

2

4

1

3

– –

Kansas

– –

– –

– –

– –

– –

16

– –

– –

13

– –

Kentucky

5

7

2

6

8

2

8

– –

6

4

Louisiana

9

11

2

5

6

7

6

2

7

– –

Maine

– –

– –

– –

6

9

– –

– –

– –

– –

– –

Maryland

8

9

1

6

9

2

6

1

4

2

Mass.

8

9

2

7

10

4

7

2

10

3

Michigan

12

10

– –

7

10

4

– –

– –

6

3

Minnesota

– –

– –

– –

– –

– –

8

– –

– –

– –

– –

Mississippi

8

9

– –

6

11

5

4

– –

3

– –

Missouri

11

13

4

8

– –

– –

7

– –

– –

– –

Montana

5

3

2

3

4

3

3

2

3

3

Nebraska

4

2

1

3

8

5

4

1

7

2

Nevada

– –

– –

– –

– –

12

– –

– –

– –

3

3

New Hamp.

30

21

14

14

22

25

12

5

7

2

New Jersey

4

6

1

2

3

2

1

1

3

1

New Mex.

4

2

1

4

8

3

5

2

7

– –

New York

4

5

– –

4

3

– –

– –

– –

– –

– –

No. Car.

5

5

– –

5

7

3

7

– –

8

3

No. Dakota

– –

– –

– –

– –

8

2

2

1

– –

– –

Ohio

6

5

1

5

6

2

3

1

2

2

Oklahoma

7

11

2

5

10

5

7

– –

– –

– –

Oregon

4

2

1

2

9

3

3

1

4

2

Pennsyl.

4

3

1

4

5

2

3

1

7

1

Puerto Rico

6

– –

– –

5

– –

3

2

– –

2

– –

Rhode Is.

6

7

2

7

5

4

7

1

5

3

So. Caro.

9

11

– –

6

8

4

7

– –

8

– –

So. Dakota

5

5

– –

4

8

2

6

– –

4

3

Tennessee

10

10

2

7

10

4

7

2

5

3

Texas

9

11

2

8

12

6

7

2

3

– –

Utah

5

8

– –

5

– –

– –

– –

– –

– –

– –

Vermont

6

5

1

5

7

– –

6

1

7

1

Virginia

2

6

– –

5

– –

– –

7

– –

– –

– –

Wash.

– –

8

– –

6

8

4

– –

– –

– –

– –

West Va.

5

7

1

5

8

3

6

2

3

2

Wisconsin

7

9

2

7

10

6

7

2

9

3

MEDIAN

6

8

2

5

8

3

6

1

6

2.5

AVERAGE

7.25

7.98

2.04

5.34

8.10

4.38

5.38

1.52

5.91

2.42


PENNSYLVANIA GETS AN INDEPENDENT STATE TREASURER

The July 1 BAN said that Pennsylvania’s Governor had appointed an independent, Timothy Reese, to be State Treasurer to fill a vacancy, but that the legislature hadn’t acted on the nomination. But since then, the Senate did approve the nomination. Treasurer is a partisan elected office up in presidential years. However, Reese has said he won’t run for a full term.


CONSTITUTION PARTY CONVENTION

The Constitution Party presidential convention will be April 13-16, 2016, in Salt Lake City.


MAINE LEGISLATOR BECOMES AN INDEPENDENT

On July 22, Maine Representative Larry Dunphy said he has changed his registration from Republican to independent. This is the seventh time this year that a state legislative seat has switched from being held by a Democrat or a Republican, to being held by an independent or minor party nominee.


PARTY FOR SOCIALISM AND LIBERATION NOMINATES TICKET

The Party for Socialism and Liberation has become the first party to announce its 2016 presidential nominee (if "party" is defined as a group that is ballot-qualified in at least one state; PSL is qualified in Florida). The ticket is Gloria La Riva for President and Eugene Puryear for Vice-President.


FREE & EQUAL ANNOUNCES DATE AND LOCATION FOR FESTIVAL

Free & Equal will hold a rally/festival at the Belasco Theater in Los Angeles on September 19, 2015, between 5 pm and 10 pm. Free & Equal held a similar event at the same location last year. The event always attracts a big audience and aims to get youth interested in running for office, voting, and other forms of political activism. Free & Equal uses these events to increase public awareness of flaws in the U.S. election process. Free & Equal hosted the only 2012 televised general election presidential debates that included candidates other than the Democratic and Republican nominees.


2016 PETITIONING

During July the Green and the Constitution Parties qualified for presidential ballot access in Arkansas.


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