SEVENTH CIRCUIT SAYS GIVING VOTERS NO CHOICE IS A SEVERE BURDEN ON VOTING RIGHTS

On September 9, the Seventh Circuit issued an opinion that says when voters are given no choice in a general election, that is a "severe burden" on the right to vote. The states in the Seventh Circuit are Illinois, Indiana, and Wisconsin. Illinois and Indiana have some of the strictest ballot access laws in the nation, and the decision will be useful in lawsuits against the ballot access laws of those states.

When courts determine that a ballot access restriction imposes a "severe burden", the law is unconstitutional unless it is needed for a compelling state interest. "Severe burden" is a magic term in ballot access law.

The decision, Common Cause Indiana v Individual Members of the Indiana Election Commission, 14-3300, concerns an Indiana law that says no party may run a full slate of candidates for Superior Court Judge in Indianapolis. Some years twenty seats are up; in those years no party may run nominees for more than ten. Other years sixteen seats are up, and no party may run more than 8 nominees. The decision says the law that restricts parties from running a full slate means that voters effectively have no meaningful vote. Because there are almost never any minor party or independent candidate for judge in Indianapolis, the candidates listed on the ballot can’t be defeated.

It is so obvious who will win, when 20 seats are up, and 10 Democrats and 10 Republicans are the only candidates on the ballot, that court officials in 2014 even made assignments to each of the judges, two months before the election!

The decision says the law "removes electoral choice and denies voters any effective voice or ability to choose between candidates."

The decision also says, "the Statute burdens the vote by essentially removing all competition and electoral choice before the general election."

Illinois Legislative Elections

The judge who wrote the opinion, visiting U.S. District Court Judge Theresa Springmann, is from Indiana, so she probably didn’t know that Illinois general elections for the state legislature also deprive voters of a "effective voice." In November 2014, Illinois had 137 legislative elections, and in 82 of them (60%), only one candidate was on the ballot. There were 49 races with no Republican, and 34 races with no Democrat. There were no minor parties candidates on the ballot for legislature and only one independent candidate.

The lack of choices in 2014 was not unusual for Illinois. It was also true for 2012 and many earlier elections. This is partly because Illinois has the second highest petition requirement for minor party and independent candidates for legislature of any state, 5% of the last vote cast. Only Georgia is more severe, if one compares the easier method in each state (minor party and independent).

Illinois now has three ballot access lawsuits in progress in U.S. District Courts, and the Common Cause decision will be helpful for those lawsuits. Two of them are Green Party lawsuits and one is a Libertarian Party lawsuit. One of the cases has its oral argument on October 5.

It is somewhat likely that Indiana will ask the U.S. Supreme Court to hear this case. The other two judges in the Seventh Circuit who signed the decision are Michael Kanne, a Reagan appointee; and Ilana Rovner, a Bush Sr. appointee. Springmann is Bush Jr. appointee.

On August 27, U.S. District Court Judge Paul Barbadoro, a Bush Sr. appointee, upheld a New Hampshire law passed in 2014 that makes it illegal to circulate a petition to recognize a new party during an odd year. Libertarian Party of New Hampshire v Gardner, 14-cv-322.

The petition is so difficult, in the twenty years it has existed it has only been used twice, in 2000 and 2012. It requires 3% of the last gubernatorial vote, which in 2014 was 20,779 signatures.

The two times the Libertarian Party completed the petition, the effort took a year. When the legislature in 2014 said the petition could not circulate during an odd year, it eliminated half the petitioning time.

The decision says that the new law is needed to prevent "ballot clutter" and to create an "orderly ballot." The judge seemed not to be aware that in 2014, New Hampshire was one of only five states that had a Democratic-Republican ballot monopoly for all the statewide races. He also seemed not to be aware that in 1974 the U.S. Supreme Court defined "ballot clutter" to mean a ballot with more than a dozen candidates for the one office. Also in 1968 Justice Harlan saidthat eight candidates for a single office are not too many.

New Hampshire’s presidential primaries always have between 15 to 35 candidates on the ballot for each major party, yet that doesn’t create a problem for voters. Almost every presidential election, New Hampshire has the nation’s most crowded presidential primary ballots (see the chart on page four). On September 14 the Libertarian Party filed a notice of appeal.

The U.S. Supreme Court will consider whether to hear Rubin v Padilla on October 9. The results of the conference won’t be known until October 13, and possibly not even then, if the Court is undecided and wants to think about it some more.

Often one can get a clue as to whether the Court is thinking about taking a case by noting if the Court asks for a response from the other side. But in this case, the supporters of top-two already filed a response.

Rubin v Padilla is the case in which the Peace & Freedom and Libertarian Parties of California, and the Alameda County Green Party, challenged the California top-two law on voting rights grounds. The State Court of Appeals upheld the law, in a decision replete with serious factual mistakes. The State Supreme Court refused to hear the case.

There are now two lawsuits concerning who can be in general election presidential debates. The first lawsuit, Level the Playing Field v FEC, was re-filed on August 27, as mentioned in the September 1 BAN.

The second lawsuit, filed September 29, is Libertarian National Committee v Commission on Presidential Debates. The plaintiffs include the Green Party, Jill Stein, and Gary Johnson. It argues that the Commission is violating the Sherman Anti-Trust Act. The case stresses the economic impact of the general election debates.

Meanwhile, on September 23, the Debates Commission announced the locations and dates of the general election presidential debates. The Commission also said that it will release the rules for inclusion soon. Maybe the Commission will relax the rule that requires 15% in polls.

On September 16, CNN sponsored a Republican presidential debate and included eleven candidates. The debate was planned to be two hours, but in the middle of the debate, CNN decided to extend it to three hours. The debate had the largest viewership of any CNN program in history, and was widely considered to be successful in letting the public learn about each of the eleven participants. It is now clear to everyone that a debate can succeed even with a large number of candidates.

District of Columbia: on August 27, the D.C. Republican Party decided it won’t use the June 14 presidential primary to choose delegates to the national convention. Instead the D.C. party will hold a caucus in March to choose delegates.

Florida: on September 25, the Republican Party made it harder to get on the ballot. The law says the state party has complete control over which names are on the ballot. In the past the party simply let all Republicans who are mentioned in the news media on their ballot. Now they must do one of three tasks: (1) submit 125 signatures of registered Republicans from each of the 27 U.S. House districts; (2) pay $25,000; (3) attend a party fundraiser in Orlando, November 13-14. The petition alternative seems impractical, and possibly unconstitutional, because the rules say the signatures can only be gathered by volunteers. In 1988 the U.S. Supreme Court struck down bans on paid circulators, in Meyer v Grant.

North Carolina: on September 24 the legislature passed HB 373, which moves the presidential primary from February to March 15. It also moves the primary for all other office from May to March 15.

Washington: on September 12, the state Republican Party decided that the May 24 presidential primary, instead of a caucus, will choose all the party’s delegates.

On September 22, the Pennsylvania Senate State Government Committee heard SB 495, which drastically improves ballot access for minor parties and independent candidates. The chair of the Committee, Senator Mike Folmer, is also the bill’s lead sponsor. Senator Folmer said at the conclusion of the hearing that he expects the bill will move ahead. The Committee has eleven members and only two of them were present, because the legislature was not in session that week.

The bill is more likely to pass because four Pennsylvania ballot access laws have been struck down this year by federal courts. The state is appealing one of those decisions but not the others.

On August 31, Minnesota Secretary of State Steve Simon, a Democrat, met with representatives of the organized minor parties of the state, about ballot access. He agreed to ask the 2016 session of the legislature to moderate state ballot access laws. Specifically, he will recommend that the definition of "political party" be eased, so that it no longer requires a 5% vote showing. The median vote test of the 50 states is 2%. He will also ask the legislature to expand the petitioning period for independent candidates. Current law requires their petitions (except for President) to be completed in a two-week period, the most restrictive time period of any state.

Currently, Minnesota does not have any statewide ballot-qualified parties except for the Republican and Democratic Parties. The other states for which that is true are Alabama, Illinois, Iowa, Kentucky, New Hampshire, New Jersey, Oklahoma, Pennsylvania, South Dakota, Virginia, and Washington (Tennessee is unresolved, pending a lawsuit).

Supporters of top-two primaries are active in publishing op-eds in support of their idea. Recently, the Baltimore Sun, Reason TV, Alaska Dispatch News, and The Hill carried such commentary.

However, authors of these pieces never mention the experience of Washington state and its legislative troubles. California and Washington are the only states that use top-two. These articles only discuss California, which appears to have a smooth-running legislature. But Washington has been using the system longer than California has, so a balanced account ought to mention both states.

On August 13, the Washington Supreme Court ruled that the state will be fined $100,000 per day until the legislature equalizes education funding. Six weeks later, the legislature still has not been called into special session to fix the problem. The Governor won’t call a special session until the Republican and Democratic caucuses in each house of the legislature come to an agreement about how to fix the problem, and that still hasn’t happened.

Even aside from the school problem, the Washington legislature has not been functioning well in the last three years. Both in 2013 and in 2015, the regular session of the legislature was not able to pass a budget. Each year, three special sessions were needed to finally write a budget.

Top-two proponents say that states that use their system will avoid gridlock and extreme partisanship. They point to the California example. However, California legislative gridlock, which was very bad before 2011, was cured in November 2010 when California voters amended the Constitution to let a majority of each house of the legislature pass a budget.

Prior to that, two-thirds of the legislators in each house had to vote for the budget. Because Democrats have an overwhelming majority in both houses of the California legislature, as soon as the two-thirds rule was eliminated, gridlock was eliminated.

Washington state’s top-two system is not responsible for the gridlock in that state. Washington gridlock is caused by the fact that Democrats have a majority in the House and Republicans have a majority in the Senate. Political science research has predominantly found that type of primary system does not matter to how a legislature functions.

Arkansas: on September 22, the independent candidate plaintiffs in Moore v Martin asked the U.S. District Court to reconsider its August 26 decision. That decision, described in the last B.A.N., upheld the March petition deadline for non-presidential independent candidates. The request for reconsideration points out that the U.S. Supreme Court said in Anderson v Celebrezze that early petition deadlines for independent candidates are always unconstitutional, regardless of how many or how few signatures are needed.

Illinois: on September 9, U.S. District Court Judge Andrea Robin Wood said she will decide Libertarian Party of Illinois v State Board of Elections before October 6, 2015. The case was filed in 2012 and still doesn’t have an opinion. Six times in the past she said she would release the opinion by a certain date, but then did not do so.

Utah: U.S. District Court Judge David Nutter has asked the state to negotiate with the Republican Party and the Constitution Party, so that the lawsuit Utah Republican Party v Herbert can be settled without a decision. The issue is the 2014 law that says anyone can get on a primary ballot via petition, even if that candidate has no support at a party endorsements convention.

Vermont: the Progressive Party has filed an amended complaint in Corren v Sorrell, asking that certain state campaign finance laws be held unconstitutional. The law governing candidates who qualify for public funding says a party cannot contribute even one cent to such a candidate. The Attorney General has been prosecuting the Progressive Party’s candidate for Lieutenant Governor because he received public funding and then the Democratic Party sent out a mass e-mail inviting Democrats to come to a campaign rally. Corren was the nominee of the Democratic Party as well as the Progressive Party. The Attorney General says the e-mail was an illegal campaign contribution.

Virginia: on August 17, the Republican Party filed a lawsuit against a state law that doesn’t permit party labels on the November ballot for county office, even though parties nominate candidates for county office. Marcellus v Virginia State Board of Elections, e.d., 3:15cv-481. On September 9, U.S. District Court Judge M. Hannah Lauck denied injunctive relief, on the grounds that the case had been filed too late. The lawsuit will continue but won’t affect the 2015 election.

An initiative is circulating in South Dakota to convert all elections (except the presidential election) to non-partisan elections.

The chart on page four shows how many names were on the ballot in Democratic presidential primaries in each state, for the period 1976-2012. If a state had "uncommitted" on its ballot, that is counted also. It is easy to see that New Hampshire has the most crowded presidential primary ballots. The August 1 B.A.N. had a chart giving the same data for Republican presidential primaries, and that chart also showed New Hampshire had the most candidates.

State	2012	2008	2004	2000	1996	1992	1988	1984	1980	1976
Alabama	2	7	4	3	3	5	9	9	6	– –
Arizona	– –	24	18	4	– –	– –	– –	– –	– –	– –
Arkansas	2	9	4	2	4	4	10	– –	4	5
California	1	8	10	3	2	7	5	6	5	10
Colorado	– –	– –	– –	4	2	18	– –	– –	– –	– –
Connecticut	– –	9	9	3	– –	9	8	9	5	– –
Delaware	– –	6	9	3	2	– –	– –	– –	– –	– –
D.C.	2	6	11	2	2	4	6	3	3	5
Florida	– –	8	9	2	– –	5	8	10	5	13
Georgia	1	8	9	2	1	6	8	10	7	17
Idaho	– –	4	5	3	2	5	5	5	4	8
Illinois	1	7	9	3	3	8	8	8	4	4
Indiana	1	2	6	3	1	4	5	5	2	4
Kansas	– –	– –	– –	– –	– –	18	– –	– –	7	– –
Kentucky	2	4	9	4	3	6	8	– –	5	7
Louisiana	4	7	7	4	3	15	12	9	8	– –
Maine	– –	– –	– –	5	3	– –	– –	– –	– –	– –
Maryland	2	9	12	4	3	7	9	9	6	7
Mass.	2	9	11	4	3	10	10	9	4	13
Michigan	2	5	– –	2	1	7	– –	– –	3	8
Minnesota	– –	– –	– –	– –	– –	16	– –	– –	– –	– –
Mississippi	1	8	9	3	2	7	9	– –	– –	– –
Missouri	5	10	12	5	– –	– –	13	– –	– –	– –
Montana	2	3	6	2	2	4	6	1	3	6
Nebraska	1	3	6	3	2	9	8	8	5	11
Nevada	– –	– –	– –	– –	– –	– –	– –	– –	3	7
New Hamp.	14	21	23	16	21	36	25	22	5	14
New Jersey	1	6	4	2	2	6	6	4	4	0
New Mex.	1	– –	– –	4	2	7	7	6	5	– –
New York	– –	6	9	3	– –	7	7	7	2	– –
No. Car.	2	4	– –	4	3	6	8	9	4	7
No. Dakota	– –	– –	– –	– –	3	3	0	2	– –	– –
Ohio	1	3	7	3	2	7	8	6	4	6
Oklahoma	5	7	9	3	3	7	12	– –	– –	– –
Oregon	1	2	3	2	1	7	6	5	3	10
Pennsyl.	1	2	5	3	2	6	8	10	4	8
Puerto Rico	– –	2	– –	– –	– –	12	– –	3	3	– –
Rhode Is.	2	4	8	4	3	16	8	9	5	9
So. Caro.	– –	8	9	– –	– –	11	– –	– –	– –	– –
So. Dakota	– –	2	5	– –	– –	8	7	5	3	7
Tennessee	2	9	11	4	2	6	8	6	6	9
Texas	4	6	10	3	7	11	11	– –	4	– –
Utah	– –	9	8	2	– –	– –	– –	– –	– –	– –
Vermont	1	4	5	3	2	– –	5	4	2	4
Virginia	– –	8	9	– –	– –	– –	9	– –	– –	– –
Wash.	– –	8	– –	3	2	6	– –	– –	– –	– –
West Va.	2	3	7	4	2	9	12	5	2	2
Wisconsin	2	9	11	4	2	9	8	9	6	11
MEDIAN	2	7	9	3	2	7	8	6	4	7
AVERAGE	2.33	6.80	8.59	3.50	2.94	8.85	8.39	7.10	4.31	7.85

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	*300	*already on	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	already on	already on	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	100	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	#26,700	already on	0	0	– –	June 30	June 30
Iowa	no procedure	#1,500	0	*1,200	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	*4,300	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	*550	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	*400	0	Aug. 1	Aug. 1	Aug. 1
Nev.	5,431	5,431	already on	500	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	*6,000	*1,000	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	2,775	*1,000	0	*3,300	Mar. 29	Mar. 29	April 26
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	*7,500	– –	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	22	15*	“	“	“

#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 Sep. 1, 2015 issue.

California is the only state which puts political party rules for each party into its election code. The Green Party has been on the California ballot since 1992, and only recently did the legislature pass the bill (that the party wrote) setting forth rules for the Green Party presidential primary and rules for elections for Green Party officers.

It took many years to pass the bill because the Green Party wanted to have "none" as an option in its primaries, but the legislature never wanted to allow that. The bill is AB 477 by Assemblymember Kevin Mullin. It was sent to the Governor on September 18. It would be surprising if he vetoes it. The Libertarian Party still doesn’t have its rules in the election code, but the party does not consider that a problem.

Kentucky elects its Governor on November 3, 2015. Three candidates are on the ballot, the Democratic and Republican nominees, and independent candidate Drew Curtis. On September 15, all three candidates participated in a televised debate. By tradition, Kentucky normally never allows anyone but the two major party nominees into debates. No poll including Curtis had been published at the time of the debate, so sponsors gave Curtis the benefit of the doubt.

On September 25, Gallup Polls released a poll on whether the U.S. would be better off with a new major political party. The "yes" result was 60%. Gallup has been asking this question annually starting in 2003, and the new result is the highest "yes" ever, except in 2013 it was also 60%. In the new poll, only 2% were undecided.

Newsmax reported on September 26 that former New York city Mayor Michael Bloomberg is seriously thinking of running for President this year as an independent. It is likely that many of the individuals who organized Americans Elect in 2011 have been trying to persuade Bloomberg to take this step for many months now. That may explain why those persons have been working so hard to persuade the Commission on Presidential Debates to expand entry into the general election debates.

Jill Stein appears to be the only presidential candidate who is seeking to qualify for primary season matching funds. She needs to raise $5,000 from each of 20 states. She has already met that goal in six states.

Canada will have a parliamentary election October 19. On September 24, Radio-Canada sponsored a televised debate. The leaders of the Conservative, Liberal, New Democratic, Bloc Quebecois and Green Parties participated. They spoke in French.

On August 26, the Maine Green Party (which is called the Green Independent Party) decided to let independent voters vote in Green Party primaries. It is the first party in Maine to take this step. Although independents can also vote in Democratic and Republican primaries, they must join those parties at the polls on primary day to do that; whereas they won’t need to join the Green Party. The Green Party has a right to take this step, under a U.S. Supreme Court decision, Tashjian v Republican Party.