U.S. DISTRICT COURT ENJOINS WEST VIRGINIA BALLOT ACCESS RESTRICTION

On September 22, U.S. District Court Judge Robert Chambers, a Clinton appointee, enjoined the West Virginia law that independent candidates and the nominees of unqualified parties file a declaration of candidacy in January. Daly v Tennant, s.d., 3:16cv-8981. The decision puts the Constitution Party nominees for President, Governor, legislature, and county office on the ballot. It also puts a Socialist Equality Party candidate, Naomi Spencer Daly, on the ballot for legislature, along with some independent candidates.

The requirement had been in the law since 1991. It said all candidates, whether running in a primary, or the general election, had to file the declaration in January. But another part of the code said that petition candidates do not need to file it until their petitions are due, in August. However, in 2015, an election bill passed that took that latter provision out of the code. Still, the January declaration law was not being enforced, until on September 15, the State Supreme Court issued an opinion, Wells v State, which said the January deadline must be enforced. The State Supreme Court seemed to have no concept that such early deadlines for independent and minor party candidates are unconstitutional

The federal court based its decision on Anderson v Celebrezze and Cromer v State, a 1990 Fourth Circuit decision which struck down a South Carolina law requiring non-presidential independents to file a declaration of candidacy in March. Both South Carolina and West Virginia are in the Fourth Circuit.

The Secretary of State, Natalie Tennant, she said she will not appeal the federal decision. She even said she welcomed it. She is a Democrat.

The Libertarian Party has placed its presidential nominee on the ballot in all fifty states and the District of Columbia. Gary Johnson is the first non-major party candidate to have achieved this since 1996, when Ross Perot and Libertarian Harry Browne accomplished it.

Greens placed Jill Stein, on the ballot in 44 states and D.C., the most states ever for that party’s nominee. The past record had been 43 plus D.C., in 2000.

The two parties also did well putting nominees for U.S. House on the ballot. The Libertarian Party has nominees on the ballot in 122 of the 436 districts, the same number as in 2014. It had been thought that the number would decline, because hostile actions by state legislatures and courts cost the party the ability to run candidates for Congress in Arizona and Ohio (see the September 1 B.A.N.).

The Green Party increased its ballot-listed U.S. House nominees from 43 in 2014, to 54 in 2016, despite losing ballot access lawsuits in Illinois, Nevada, and Tennessee. See the chart on page five showing the number of U.S. House nominees in each state for all political parties.

These accomplishments are even more startling, given the unwillingness of courts to aid these parties during July and August.

Here is a list of ballot access cases these parties lost in September, along with three that were lost in August but were not included in the September 1 B.A.N:

Arizona: on September 23, the Ninth Circuit said the Green Party’s lawsuit against the February petition deadline for new parties cannot succeed, because the party did not submit any evidence that the early deadline is burdensome. Arizona Green Party v Reagan, 14-15976.

The decision says, "We do not know how difficult it was for the Green Party to collect the required signatures, how much the signature-gathering effort cost, whether petition efforts diverted the Party’s resources from other endeavors, whether the ‘mind of the public’ was diverted from the election at the time when the Party sought to collect the signatures, how difficult it has been for new parties to comply with the deadline historically, or even if the Green Party attempted to comply with the deadline at all." The decision has no effect on the party’s current status. The case arose in 2014, when the party couldn’t finish the petition in time to qualify for the 2014 election. The state allowed the 2014 petition to be used for 2016 instead.

Illinois: on August 17, U.S. District Court Judge Michael Reagan, a Clinton appointee, upheld the law that petitions must be notarized. Tripp v Smart, s.d., 14-cv-890. The decision acknowledges that a court in Pennsylvania came to a different conclusion, but said that notaries cost more money in Pennsylvania than in Illinois. The Green Party is appealing.

South Dakota: on August 31, a U.S. District Court refused to reconsider her earlier decision that the congressional and legislative candidates of the Libertairan and Constitution Parties will not be put on the ballot, because the complaint is flawed. The parties are seeking to file an amended complaint.

Nevada: on September 1, U.S. District Court Judge Jennifer Dorsey, an Obama appointee, refused to enjoin the June 2 petition deadline for newly-qualifying parties to submit their petition. Nevada Green Party v Cegavske, 2:16cv-1951. As a result, Jill Stein won’t be on the ballot. Nevada doesn’t permit write-ins, so no one will be able to vote for her.

The decision admits that in 1992, a U.S. District Court had enjoined the Nevada deadline, which was June 10, later than the current deadline. But the decision says the 1992 precedent doesn’t control the case, because in 1992 the petition requirement was 3% and now it is 1%. That conclusion is erroneous. The U.S. Supreme Court decision Anderson v Celebrezze said that early petition deadlines involving presidential elections are unconstitutional, no matter how many signatures are required. In that case, the number of signatures was only 5,000, which was less than one-tenth of 1% of the number of registered voters.

The case is still alive and the constitutionality of the law is yet to be decided.

Tennessee: on August 17, U.S. District Court Judge Waverly Crenshaw, an Obama appointee, upheld the law requiring a petition of 2.5% of the last gubernatorial vote to place a party on the ballot. Green Party of Tennessee v Hargett, m.d., 3:11cv-692. This is the oldest pending ballot access case in the nation. The Green and Constitution Parties have appealed to the Sixth Circuit.

This should be a very simple case. No party has qualified in Tennessee since 1968. Tennessee is the only state in which Americans Elect tried to get on the ballot in 2011-2012, and failed. Almost half of its signatures were held to be invalid. The U.S. Supreme Court has said twice that when a ballot access law is so difficult it is almost never used, the law is probably unconstitutional.

The decision fails to mention that no party has qualified by petition in Tennessee since 1968.

The decision says the requirement is needed to keep the ballot from being crowded. This is unconvincing, because Tennessee lets anyone be an independent candidate with only 25 signatures and no filing fee (except presidential independents need 275 signatures).

As a result of the decision, the Green and Constitution Parties, which had been on the ballot in 2012 and 2014, will not be on the ballot this year. Tennessee and Alabama are the only states with no parties on the 2016 ballot, other than the Democratic and Republican Parties.

Rocky De La Fuente, an independent presidential candidate this year, is being barred from the ballot in Alabama, Arkansas, and Pennsylvania, even though his petition was valid, because he had run in Democratic presidential primaries this year. He is only the second person in history to be barred from a general election ballot for that reason. Gary Johnson in 2012, in Michigan, was the first.

Presidential primaries have existed since 1912. There have been 72 times when someone appeared on the ballot in a presidential primary of one party, and then was placed on the November ballot for another party or as an independent.

Thus, a very long and important political practice is suddenly being made illegal, with virtually no public notice and no legislative changes. De La Fuente has lawsuits against Alabama and Pennsylvania, so at least the issue will be aired.

His Alabama lawsuit, De La Fuente v Merrill, m.d., 2:16cv-755, has a hearing October 4 in Montgomery. His Pennsylvania lawsuit, De La Fuente v Cortes, Commonwealth Court, 518 md 2016, will have a hearing in early October. He didn’t sue Arkansas.

These lawsuits are coming too late to put him on the ballot, but he may win declaratory relief.

The candidates who set the precedents that sore loser laws don’t apply to presidential primaries, are:

1912, Theodore Roosevelt, Illinois, Maryland, Massachusetts, Nebraska, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania.

1924: Robert La Follette, North Dakota.

1980: John Anderson, California, Connecticut, D.C., Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Mexico, North Carolina, Oregon, Tennessee, Vermont, Wisconsin.

1984: Lyndon LaRouche, Louisiana, New Hampshire, North Dakota, Ohio.

1988: Lyndon LaRouche, Louisiana, Mississippi, Ohio.

1988: David Duke, Arkansas, Louisiana, New Jersey.

1988: Herb Lewin, Vermont.

1992: Lyndon LaRouche, Alabama, Arkansas, Louisiana, Massachusetts, Minnesota, New Jersey, North Dakota, Ohio, Rhode Island, Washington, Wisconsin.

1992: Lenora Fulani, New Hampshire.

2008: Ron Paul, Louisiana, Montana.

2008: Alan Keyes, California, Florida.

2012: Gary Johnson, Florida, Georgia, Mississippi, Missouri, New Hampshire, South Carolina, Tennessee.

2012: Roseanne Barr, California.

2016: De La Fuente, Kentucky, Mississippi, New Hampshire, Rhode Island, Vermont.

De La Fuente is also suing Illinois and Texas over sore loser laws, but he didn’t petition in those states.

In late August, Ken Detzner, Florida Secretary of State, said he would enforce a law passed in early 2011 that has never before been enforced. The impact of this change is to remove the presidential nominees of three ballot-qualified that had been recognized for four years or more. Those parties are the Independent Party (which had nominated Evan McMullin for President); the Party for Socialism and Liberation (Gloria LaRiva) and America’s Party (Tom Hoefling). The latter two parties had presidential nominees on the 2012 ballot. The Independent Party in the past never nominated for president.

The 2011 law said that even though a party is ballot-qualified, it can’t place a presidential nominee on the ballot unless the Federal Election Commission recognizes it as a national committee, or unless it submits 119,316 signatures by July 15.

On September 1, 2011, Secretary of State Kurt Browning had ruled that the law can’t be enforced, because Florida has no official knowledge of which parties the FEC recognizes. Detzner now says his predecessor made a mistake in 2011. The 2011 ruling had been issued at the request of Americans Elect, which was a very wealthy and powerful party with the resources to sue the state.

The FEC isn’t even sure which parties it recognizes. It once recognized the Natural Law Party but doesn’t know if it is still recognized.

The Florida law is discriminatory against new parties, because the FEC won’t recognize parties until after they have participated in a presidential election.

The Florida law is also flawed because the FEC does not determine which parties are entitled to National Committee status by testing their public support. The FEC rules only relate to fine points of campaign finance law.

This is obvious when one sees that the FEC recognized the Socialist Party in December 1980, even though it had only polled 6,898 votes for President that year; but the FEC refused to recognize John Anderson’s National Unity Party in 1981, even though it had polled 5,720,060 votes in 1980.

Also, the FEC refused to recognize the Green Party in 1997, even though the previous year it had polled 685,040 votes for president in 1996.

The FEC still recognizes the Reform Party, even though it only polled 481 votes in the entire nation for President in 2008, and only820 in 2012.

It is somewhat likely that a lawsuit will be filed by one of the injured political parties.

The Florida Secretary of State has also refused recently to give qualified status to several parties that applied this summer. They include the Socialist Party, the Prohibition Party, and the American Solidarity Party. The Secretary of State found fault with the bylaws of each of these parties. In the case of the Socialist Party, which had been a qualified party in 2012 but had let its qualified status lapse, the 2016 bylaws are exactly the same as the 2012 bylaws. No law has changed relating to party bylaws since 2012.

Ever since 2010, federal law has mentioned the Commission on Presidential Debates and given it authority over government policy. The law is 3 USC 102. It is the "Pre-Election Presidential Transition Act of 2010", Public Law 111-283, found at 124 Stat. 3046.

It says the General Services Administration should arrange for security briefings for "eligible" presidential candidates, and also should provide funds for an office for such candidates to prepare for a possible transition. The law’s definition of "eligible" says the GSA shall consider whether other national organizations have recognized the candidate as being a "principal contender". The only national organization mentioned in the law is the Commission on Presidential Debates.

This came to light when Gary Johnson asked for a security briefing. The denial letter says the Commission on Presidential Debates hasn’t allowed him into the first debate. The CPD had denied Johnson entrance into the first debate on September September 16. Meanwhile, Johnson and Jill Stein have appealed one of their debates lawsuits to the U.S. Court of Appeals, D.C. circuit.

On September 12, the Minnesota Supreme Court ruled in Martin v Simon, A16-1436, that Donald Trump should be on the ballot even though the Republican Party did not certify its presidential elector alternates according to state law.

The Federal Election Commission has published Combined Federal/State Disclosure & Election Directory, a 144-page free book that gives contact info for state election officials. Call 800-424-9530 to ask for a copy.

The charts below update two previous charts, published in the June 2013 and July 2014 B.A.N. The set of charts together show that top-two systems in California and Washington have a perfect record of keeping all minor party candidates off the general election ballot, in races in which at least two major party candidates ran.

These charts list all minor party members who ran in top-two elections for federal and state office, and in which the minor party candidate had at least two major party opponents, for the period July 2014 through now. This chart, and the earlier charts from 2013 and 2014 show that no minor party candidate with at least two major party opponents has ever placed first or second in a top-two primary.

California

DATE	CANDIDATE	PARTY	OFFICE	RANK	VOTE %
6/7/2016	Gail Lightfoot	Libertarian	U.S. Senate	10th of 34	1.33%
6/7/2016	Pamela Elizondo	Green	U.S. Senate	12th of 34	1.27%
6/7/2016	Eleanor Garcia	Socialist Workers	U.S. Senate	16th of 34	.87%
6/7/2016	Mark Matthew Herd	Libertarian	U.S. Senate	21st of 34	.55%
6/7/2016	John Thompson Parker	Peace & Freedom	U.S. Senate	22nd of 34	.48%
6/7/2016	Don J. Grundmann	Constitution	U.S. Senate	31st of 34	.20%
6/7/2016	Alex Appleby	Libertarian	U.S. House 9	4th of 4	3.88%
6/7/2016	Barry Hermanson	Green	U.S. House 12	4th of 4	6.58%
6/7/2016	Kennita Watson	Libertarian	U.S. House 17	6th of 6	2.35%
6/7/2016	Joe Williams	Peace & Freedom	U.S. House 20	3rd of 5	3.88%
6/7/2016	John H. Webster	Libertarian	State Senate 13	3rd of 3	5.74%
6/7/2016	Janice Marlae Bonser	Libertarian	Assembly 8	3rd of 3	7.16%
6/7/2016	John M. Inks	Libertarian	Assembly 24	6th of 8	4.18%
6/7/2016	Dominic Robert Rubini	Libertarian	Assembly 35	4th of 4	3.35%
6/7/2016	Jeff Hewitt	Libertarian	Assembly 42	3rd of 3	7.79%
6/7/2016	Aaron Cervantes	American Independent	Assembly 43	8th of 8	1.79%

Washington State

DATE	CANDIDATE	PARTY	OFFICE	RANK	VOTE %
8/5/2014	Douglas Milholland	Green	U.S. House 6	4th of 4	3.50%
8/5/2014	Randy McGlenn	Libertarian	State Representative 3-1	3rd of 3	8.06%
8/5/2014	Chris Rockhold	Libertarian	State Representative 17-2	3rd of 3	10.11%
8/5/2014	Bob Lewis	Green	State Representative 21-2	4th of 4	3.90%
8/5/2014	Stafford A. Conway	Libertarian	State Representative 24-2	3rd of 3	7.60%
8/5/2014	Nicholas Kunkel	Libertarian	State Representative 42-1	4th of 4	3.96%
8/2/2016	Mary Martin	Socialist Workers	Governor	9th of 11	.74%
8/2/2016	David W. Blomstrom	Fifth Republic	Governor	10th of 11	.32%
8/2/2016	Paul Addis	Libertarian	Lieutenant Governor	9th of 11	1.99%
8/2/2016	Mark Greene	Citizens	Lieutenant Governor	11th of 11	.96%
8/2/2016	Tim Turner	Libertarian	Secretary of State	3rd of 3	5.98%
8/2/2016	Steven M. Nielson	Libertarian	Land Commissioner	5th of 7	4.84%
8/2/2016	Justin Murta	Libertarian	Insurance Commissioner	3rd of 3	7.50%
8/2/2016	Mike Luce	Libertarian	U.S. Senator	6th of 17	1.52%
8/2/2016	Scott Stafne	Libertarian	U.S. House 1	4th of 5	3.17%
8/2/2016	Brian Luke	Libertarian	U.S. House 2	4th of 5	3.44%
8/2/2016	Krystol McGee	Libertarian	U.S. House 5	5th of 5	1.88%
8/2/2016	Tyler Myles Vega	Green	U.S. House 6	6th of 6	1.87%
8/2/2016	Paul Delaney	Libertarian	State Representative 3-2	3rd of 3	8.14%
8/2/2016	Bruce Guthrie	Libertarian	State Representative 21-2	3rd of 4	6.33%
8/2/2016	Brandon Lyons	Libertarian	State Representative 28-2	4th of 4	3.28%
8/2/2016	Alex Hart	Libertarian	State Representative 32-2	4th of 4	2.81%
8/2/2016	Charles Schaefer	Libertarian	State Representative 33-1	3rd of 3	4.33%
8/2/2016	Shane Driscoll	Libertarian	State Representative 39-2	3rd of 3	4.70%
8/2/2016	Bryan Simonson	Libertarian	State Senate 41	3rd of 3	3.92%
8/2/2016	Angel Jordan	Libertarian	State Representative 41-2	4th of 4	2.12%
8/2/2016	Jacob Lamont	Libertarian	State Representative 42-1	4th of 4	3.15%
8/2/2016	Jerry Burns	Libertarian	State Representative 42-2	4th of 4	1.82%

~	#seats	Dem.	Rep.	Lib’t.	Green	Consti.	Conser	Reform	other	indp.
Ala	7	5	6	0	0	0	0	0	0	0
Alas	1	1	1	1	0	0	0	0	0	1
Ariz	9	8	8	0	2	0	0	0	0	0
Ark	4	1	4	4	0	0	0	0	0	0
Cal	53	53	44	0	0	0	0	0	0	2
Colo	7	7	7	7	1	0	0	0	0	0
Ct	5	5	5	1	2	0	0	0	0	0
Del	1	1	1	1	1	0	0	0	0	0
D.C.	1	1	0	1	1	0	0	0	0	0
Fla	27	27	26	1	0	0	0	0	0	9
Ga	14	10	13	0	0	0	0	0	0	0
Hi	2	2	2	1	0	0	0	0	0	1
Id	2	2	2	0	0	1	0	0	0	0
Ill	18	16	17	0	2	0	0	0	0	0
Ind	9	9	8	9	0	0	0	0	0	0
Iowa	4	4	4	1	0	0	0	0	0	2
Kan	4	3	4	4	0	0	0	0	0	2
Ky	6	5	6	0	0	0	0	0	0	1
La	6	5	5	4	1	0	0	0	0	4
Maine	2	2	2	0	0	0	0	0	0	0
Md	8	8	8	6	5	0	0	0	0	0
Mass	9	9	4	1	0	0	0	0	0	4
Mich	14	14	14	13	9	3	0	0	4	1
Minn	8	8	8	0	0	0	0	0	3	0
Miss	4	4	4	2	0	0	0	4	1	1
Mo	8	8	8	8	2	1	0	0	0	0
Mont	1	1	1	1	0	0	0	0	0	0
Neb	3	2	3	1	0	0	0	0	0	0
Nev	4	4	4	1	0	4	0	0	0	3
N H	2	2	2	2	0	0	0	0	0	2
N Jer	12	12	12	10	2	1	1	0	0	15
N Mex	3	3	3	0	0	0	0	0	0	0
N York	27	26	18	0	4	0	1	1	1	2
No C	13	12	13	1	0	0	0	0	0	0
No D	1	1	1	1	0	0	0	0	0	0
Ohio	16	16	16	0	2	0	0	0	0	2
Okla	5	4	5	2	0	0	0	0	0	2
Ore	5	5	5	2	2	0	0	0	1	0
Penn	18	16	17	2	0	0	0	0	0	0
R I	2	2	2	0	0	0	0	0	0	2
So C	7	5	7	2	1	1	0	0	3	0
So D	1	1	1	0	0	0	0	0	0	0
Tenn	9	9	9	2	0	0	0	0	0	10
Texas	36	29	30	24	17	0	0	0	0	0
Utah	4	4	4	1	0	2	0	0	0	1
Vt	1	1	0	0	0	0	0	0	1	0
Va	11	11	10	0	0	0	0	0	1	2
Wash	10	10	10	0	0	0	0	0	0	0
W Va	3	3	3	1	0	0	0	0	0	0
Wis	8	8	6	3	0	0	0	0	0	3
Wyo	1	1	1	1	0	1	0	0	0	0
TOTAL	436	406	394	122	54	15	2	5	15	72

The parties in the "other" column are: Michigan, 2 Working Class and 2 Natural Law; Minnesota, 2 Legal Marijuana Now and 1 Independence; Mississippi, Veterans; New York Working Families; Oregon, Progressive; South Carolina, American; Vermont, Liberty Union; Virginia, Independent Green. The abbreviations in that chart: Lib’t = Libertarian; Consti = Constitution; Conser = Conservative.

Jill Stein received $456,035 in primary season matching funds this year. In 2012, she received $333,331. She is the only presidential candidate except Martin O’Malley who received primary season funds in 2016. O’Malley received $1,088,929.

American Delta Party nominated Rocky De La Fuente on September 1, at its convention in Chester Springs, Pennsylvania. De La Fuente is also the Reform Party nominee.

Independence Party of South Carolina: nominated Evan McMullin on September 3. This is the only old party that that has nominated him.

Independence Party of New York nominated Gary Johnson on September 8. This is the first time any party other than the Libertarian Party has nominated the Libertarian presidential nominee.

Reform Party of Mississippi nominated Barbara Dale Washer for president on September 9, but five days later the party withdrew the nomination and will have no presidential nominee. The party is not affiliated with the national Reform Party.

There are fifteen presidential candidates who are not on the ballot in all states (counting DC as a state), but who are on in at least two states. They are listed below, with the percentage of voters who will see their names on their ballots:

PARTY	PERCENTAGE	STATES
Green	89.4%	45
Constitution	39.3%	24
Reform/Delta	26.4%	20
Soc & Liberatn	20.9%	8
E. McMullin	15.7%	11
Soci. Workers	13.7%	7
Workers Wrld	6.0%	3
Socialist	5.7%	2
Mike Smith	3.9%	2
Prohibition	3.8%	3
Veterans	3.5%	2
L. Kotlikoff	3.5%	2
America’s	3.5%	2
Marijuana	3.5%	2
Lynn Kahn	2.1%	2

On September 6, Alaska Libertarians nominated Joe Miller for U.S. Senate. Someone else had won the Libertarian primary, but she resigned. Miller was the Republican Party nominee for U.S. Senate in 2010.