NORTH CAROLINA BALLOT ACCESS BILL ENACTED

MOST SIGNIFICANT IMPROVEMENT IN ANY STATE SINCE FLORIDA 1998

On October 17, the North Carolina ballot access bill, SB 656, was enacted. The bill had passed the legislature on October 5, but on October 9, the Governor had vetoed it. But his veto was then overridden.

The bill lowers the number of signatures for a newly-qualifying party from 2% of the last gubernatorial vote (94,221) to one-fourth of 1% (11,778).

It lowers the statewide independent petition from 2% of the last gubernatorial vote to 1.5% of the last gubernatorial vote (70,666 signatures). It lowers most non-statewide petitions from 4% of the number of registered voters, to 1.5% of the number of registered voters. For a typical U.S. House independent in 2018, 7,807 signatures will be needed. However, independent legislative candidates still need 4% of the number of registered voters.

The bill changes the independent deadline from early April to late April (the minor party petition deadline continues to be in late May).

For both types of statewide petition (party and independent), it retains the congressional district distribution requirement, but lowers the number of districts in which 200 signatures must be obtained, from four districts, to three districts. North Carolina has thirteen districts.

Finally, the bill says if a party that is not otherwise on the North Carolina ballot placed its presidential nominee on the ballot in the preceding presidential election in at least 70% of the states, then it is a qualified party for all office. This part of the bill means that the Green Party will automatically be qualified on January 1, 2018, when the bill goes into effect (the Libertarian Party is already on).

The Green Party cannot be removed earlier than November 2020. It will nominate by convention in 2018, and primary in 2020. If it doesn’t poll 2% for either President or Governor in November 2020, then it will go off the ballot; but if its 2020 presidential nominee was on the ballot in at least 35 states, then it will automatically come back on, as soon as the party submits documents relating to its 2020 ballot status.

Only once before in history has any state put a party on the ballot in that state, depending on its success in other states. That was Oklahoma, which said that any party that was not otherwise on the Oklahoma ballot, but which had polled 10% of the vote for any statewide race in any other three states, would be automatically on in Oklahoma. That law was in effect 1913-1923.

If this idea had been in effect in the past 90 years, these parties (who were not on in North Carolina) would have been on:

Communist 1930-1940

Socialist 1930 & 1934-1944

Progressive 1950-1952

Libertarian 1986-1990 & 1994 & 2006

New Alliance 1990-1996

Constitution 1998-2008

Natural Law 1998-2004

Reform 1998 & 2002-2004

Green 2002-2004 & 2014-2016

Impact on Other Difficult States

The North Carolina change will help the struggle to ease the ballot access laws in some other states that require very large numbers of signatures.

The only other states that require more than 25,000 signatures for all methods to get a presidential candidate (running outside the two major parties) on the general election ballot are now California, Indiana, Michigan, and Texas. Oklahoma had been on this list, but in 2017 the legislature said a very large filing fee can be used in place of a petition. The California requirement is being challenged in federal court by Rocky De La Fuente.

Most Significant Improvement in Ballot Access Since Florida 1998

The new law is the biggest gain for ballot access in any state since 1998, when the voters of Florida passed a ballot measure that eliminated mandatory petitions for ballot access for new parties and non-presidential independent candidates. The pre-1998 Florida petition requirements (for office other than President) had been a petition of 3% of the registered voters, which was 196,778 for statewide office in 1996.

For Decades, All But One Ballot Access Bill Had Failed

The success of SB 656 is especially significant if one notes that similar bills had been introduced in North Carolina for the last 28 years, and (with one exception in 2005) they had all failed, unless they were required by court decisions.

1989: H1199 passed one committee.

1991: H934 made no headway.

1993: H169 passed one committee.

1997: H79 made no headway. S573 passed the Senate and one House committee.

2001: S10 passed the Senate but lost in the House.

2003: H867 passed one committee.

2005-2006: H88 passed. It lowered the vote test for a party to remain on from 10% to 2%. But it also imposed filing fees on minor parties.

2009: S731 made no progress.

2011: H32 passed the House and one Senate committee, but didn’t pass. S225 made no progress.

2013: H794 only passed the House.

2015: H509 made no headway.

North Carolina Law is Still Faulty

The North Carolina ballot access laws for independent candidates are still faulty. In 2004 a U.S. District Court had ruled that North Carolina could not require more signatures for a statewide independent than a new party, in a reported case DeLaney v Bartlett. And in 1980 another U.S. District Court had ruled that North Carolina’s April petition deadline for independent candidates is too early, Greaves v State Bd. of Elections. There is already a pending ballot access case, Leifert v Board of Elections, m.d., 1:17cv-147. Some independent candidate plaintiffs in that case are expected to file an amended complaint soon.

Unfortunately, there are no statewide partisan races in North Carolina in 2018, so the DeLaney issue can’t be raised in that election.

On September 27, Governor Jerry Brown signed SB 568, which moves all partisan primaries from June to March, effective in 2019. As noted in previous issues of B.A.N., this creates an election system in which it is impossible for any candidate for Congress or state partisan office to get on the November ballot, unless that candidate files in the year before the election. The only other state that ever had a system like that was Arkansas in 2016, but since then the Arkansas legislature has eliminated that characteristic. The new California system is very likely to be held unconstitutional, but no lawsuit would be ripe until 2019.

On October 4, U.S. District Court Judge Michael W. Fitzgerald, an Obama appointee, upheld California’s independent presidential petition procedure. De La Fuente v Padilla, c.d., 2:16cv-3242. An appeal to the Ninth Circuit is planned.

The decision was issued only two days after the oral argument, and contains numerous factual errors concerning the laws of other states. It says that Minnesota requires a petition of 1% of the last vote cast (which would be 29,181 signatures) but actually Minnesota has only required 2,000 signatures for statewide independents, for over a century.

It says Oklahoma requires a petition of 3% of the last presidential vote, but actually an independent can get on for president without any petition, if a large filing fee is paid.

It says Maryland requires a petition of 1% of the registered voters (which would be over 40,000) but actually Maryland only requires 10,000 signatures for statewide independents.

It says that Arizona’s petition is 3% of the number of registered voters, but actually it is 3% of the number of registered independents (any registered voter can sign).

It says that Pennsylvania’s petition is 2% of the last vote cast (which would be 123,310 signatures) but actually it is 5,000 signatures, per a court settlement from 2016.

It upholds California’s petition requirement of 1% of the number of registered voters (which will probably be approximately 200,000 signatures in 2020) because California has numerous minor parties on the ballot. But the U.S. Supreme Court said in 1974 in Storer v Brown, on page 745, "The political party and the independent candidate approaches are entirely different and neither is a satisfactory substitute for the other."

Furthermore, the California procedures for new parties are also severe, requiring that approximately 60,000 persons must register into the party. The reason California has four qualified minor parties is that the law makes it fairly easy for a party to remain on the ballot. No group has successfully done a California registration drive to qualify a new party since 1995.

The decision ignores the Supreme Court decisions Storer v Brown and Mandel v Bradley, both of which say that lower courts should evaluate ballot access barriers on the basis of how often they were used, and if the laws are seldom used, they are likely unconstitutional. No one has used the California procedure since 1992, when Ross Perot did it.

The decision says that the California petition can’t be difficult, because six independent presidential petitions succeeded 1976-1988. But it does not say that the 1988 instance, by Lenora Fulani, did not require 1%. Because Fulani had won a lawsuit against the short petitioning period, the state settled out of court and let her on with exactly 65,000 signatures. The decision does not say that the other instances, from 1976 & 1980, were when fewer than 102,000 signatures were needed.

The decision says that no strong independent presidential candidates have kept off the California ballot in recent decades, ignoring that Evan McMullin (who polled 2.5% in the states where he was on the ballot) failed to get on in California in 2016, as did Ralph Nader in 2004, and Eugene McCarthy in 1976.

The decision says that the petition need not cost much money, because Ross Perot got on in 1992 with volunteers. But it does not say that Perot spent hundreds of thousands of dollars on his 1992 California petition drive, because he opened up dozens of store-front offices so that volunteers would have a place to be trained, to pick up blank petition forms, and to turn them in. This was in the evidence.

On October 15, California Governor Jerry Brown signed AB 469. It eases the petitions in lieu of filing fee for Congress, state office, and all non-partisan offices. It lowers the statewide petition in lieu of filing fee from 10,000 signatures to 7,000; U.S. House and State Senate from 3,000 to 2,000; and Assembly from 1,500 to 1,000. It also lets these petitions be circulated two weeks earlier than permitted by the old law. But it removes the ability of a candidate to submit a supplemental petition after the original petition is checked.

The Peace & Freedom and Green Parties effectively lobbied to make these improvements. The original bill did not decrease the number of signatures, but merely abolished the supplemental petition procedure. In California, the petition in lieu of filing fee does not need to be completed to help the candidate. Every valid signature on an in lieu of petition reduces the amount of filing fee, even if the petition is incomplete.

On October 10, the U.S. Supreme Court declined to hear Martin v Moore, 16-980. The Eighth Circuit had ruled that Arkansas’ independent petition deadline of March is too early, unless the state can prove that it can’t manage to check independent candidate petitions without such an early deadline. The state had then asked the U.S. Supreme Court to overturn that ruling.

As a result of the U.S. Supreme Court’s action, the case now returns to the U.S. District Court. It is not likely that the state will be able to prove that it can’t cope with petition checking without a March deadline. In the U.S. District Court, the case is Moore v Martin, e.d., 4:14cv-65.

On October 23, the Maine legislature tentatively approved LD 1646. It suspends any use of ranked choice voting in 2018 and 2020, even though the voters had passed an initiative in 2016 requiring that it be used for all state office, and all federal office except president.

After the voters passed it, the State Supreme Court issued an advisory opinion saying the Maine Constitution does not permit it to be used in general elections for state office.

The bill says if no change is made to the State Constitution by 2021, the entire ranked choice law is repealed. Proponents of ranked choice voting plan to circulate a referendum petition against LD 1646, which would mean that if they get enough signatures, LD 1646 would be void until the voters vote on the issue.

Minnesota bars voters at the polls from wearing any clothing, or anything on their clothing, dealing with politics. The lower federal courts upheld that law. The voters then asked for U.S. Supreme Court review. Three times, the U.S. Supreme Court has had the case on its conference, but each time the Court did not decide whether to hear it. This is a sign that the Court is thinking seriously about taking the case. Minnesota Voters Alliance v Mansky, 16-1435. One of the plaintiffs wore a T-shirt that mentioned the Tea Party; another had a button that said, "Please ID Me."

On October 15, California Governor Jerry Brown vetoed SB 149, which would have kept presidential primary candidates off the ballot if they didn’t release their income tax returns for the previous five years. Brown said the bill might be unconstitutional, and also that it wouldn’t be good policy for ballot access laws of each state to impose various barriers that would not be uniform throughout the nation. The only state in which it is possible for this type of law to be enacted this year is Massachusetts, where the legislature is still in session and SB 365 is still sitting in committee.

On October 17, an Alaska state trial court ruled that if the Democratic Party wants to let independent candidates seek its nomination, the state must permit such candidates to be on the party’s primary ballot. Alaska Democratic Party v State, 1ju-17-563. The basis for the decision is Freedom of Association. The U.S. Supreme Court had said in 1986 in Tashjianv Republican Party of Connecticut that parties are free to nominate a non-member if they wish.

If an independent wins the Democratic primary, then he or she will be listed on the November ballot as a Democrat.

The chart below lists the last time any party, other than the Republican or Democratic Party, had a candidate on the November ballot in each U.S. House district in that state. The chart shows the extreme difference between states. In seventeen states, no third party has been able to run a full slate of candidates since the twentieth century, and in three states, since the eighteenth century.

State	Party	# Seats	Year	Vote	Percent of Vote
Alabama	Libertarian	7	2002	64,839	5.12%
Alaska	Libertarian	1	2016	31,770	10.35%
Arizona	Libertarian	8	2010	72,216	4.25%
Arkansas	Libertarian	4	2016	196,512	18.39%
California	Socialist	11	1912	104,122	16.72%
Colorado	Libertarian	7	2016	143,388	5.31%
Connecticut	Working Families	5	2014	42,305	3.96%
Delaware	Green	1	2016	8,326	1.97%
Florida	Socialist	4	1912	3,878	8.75%
Georgia	Peoples	11	1894	76,757	38.01%
Hawaii	Libertarian	2	2008	11,293	2.70%
Idaho	Constitution	2	2006	4,973	1.12%
Illinois	Progressive	27	1914	119,159	12.29%
Indiana	Libertarian	9	2016	162,460	6.11%
Iowa	Libertarian	5	2000	17,542	1.38%
Kansas	Libertarian	4	2016	74,227	6.32%
Kentucky	Socialist	9	1932	3,273	.34%
Louisiana	Libertarian	7	2002	75,907	6.59%
Maine	Socialist	4	1916	1,444	.96%
Maryland	Libertarian	8	2012	69,298	2.69%
Massachusetts	Prohibition	12	1890	9,764	3.49%
Michigan	Libertarian	14	2012	102,141	2.23%
Minnesota	Farmer-Labor	9	1936	462,714	42.40%
Mississippi	Reform	4	2016	15,085	1.28%
Missouri	Libertarian	8	2016	96,492	3.51%
Montana	Libertarian	1	2016	16,554	3.26%
Nebraska	Green	3	2004	11,108	1.45%
Nevada	Constitution	4	2016	32,366	3.00%
New Hampshire	Libertarian	2	2012	29,457	4.32%
New Jersey	Libertarian	13	1996	23,083	1.14%
New Mexico	American Independent	2	1974	4,929	1.56%
New York	Liberal	41	1962	259,758	4.67%
North Carolina	Libertarian	13	2002	64,400	3.14%
North Dakota	Libertarian	1	2016	23,528	6.96%
Ohio	Libertarian	19	2000	106,898	2.45%
Oklahoma	Libertarian	6	2000	23,253	2.14%
Oregon	Libertarian	5	2014	37,909	2.62%
Pennsylvania	Socialist	36	1916	46,894	3.96%
Rhode Island	Reform	2	1998	11,079	3.78%
South Carolina	Libertarian	6	2000	31,104	2.36%
South Dakota	Libertarian	1	2006	5,230	1.57%
Tennessee	Socialist	10	1912	2,209	.96%
Texas	Peoples	13	1894	177,827	41.14%
Utah	Independent American	4	2014	13,086	2.31%
Vermont	Liberty Union	1	2016	29,410	10.01%
Virginia	Socialist	9	1934	2,029	1.37%
Washington	Libertarian	9	2000	82,289	3.45%
West Virginia	Libertarian	3	2000	50,319	8.68%
Wisconsin	Socialist	10	1948	10,267	.85%
Wyoming	Constitution	1	2016	10,362	4.13%

The chart below lists the last time a legislature passed a bill to ease ballot access for minor party or independent candidates, without having been forced by a court to do so. Five states did so in 2017.

STATE	YEAR	WHAT WAS THE IMPROVEMENT?
Alabama	1977	Eliminated the petition requirement for new parties to get on the ballot
Alaska	1997	Added an alternate registration test for parties to remain ballot-qualified, besides the vote test
Arizona	2006	Decreased the number of signatures for a new party in mid-term years
Arkansas	2009	Expanded the petitioning period for new parties and independent candidates from 60 to 90 days
California	2017	Lowered the number of signature in lieu of the filing fee
Colorado	2012	Moved the deadline for independent presidential candidates from June to August
Conn.	1994	Eased the number of signatures for a statewide minor party or independent candidate
Delaware	1978	Eased the new party procedures from a 1% petition, to having registration of one-twentieth of 1%
D.C.	1999	Said all qualified parties are also qualified to be on for president
Florida	1999	Eased the definition of party from a group with registration of 5%, to any group with officers
Georgia	1986	Created a 1% petition procedure for groups to be qualified (but only for statewide office)
Hawaii	1999	Lowered the party petition from 1% of the number of registered voters, to one-tenth of 1%
Idaho	1985	Decreased the party petition from 3% of the last presidential vote, to 2%
Illinois	1927	Eliminated the petition requirement for new parties to be on the ballot
Indiana	1977	Eliminated the need to notarize each signature on a ballot access petition
Iowa	1993	Lowered petition for minor party and indp. candidates for U.S. House from 2% to 300 signatures
Kansas	1984	Lowered the petition for new parties from 3% of the last gub. vote, to 2%
Kentucky	2005	Eliminated the law that federal candidates must file a declaration of candidacy in April
Louisiana	2004	Eased the definition of political party from registration of 5%, to 1,000 registered members
Maine	2013	Eased the definition of political party from 5% petition to 5,000 registrants
Maryland	1998	Lowered the independent candidate petition from 3% of registered voters, to 1%
Mass.	1991	Lowered the minor party and indp. candidate petition from one-half of 1%, to 10,000 signatures
Michigan	2004	Eased definition of party, from 1% vote for candidate at top of ballot, to 1% for any statewide office
Minnesota	2002	Eased definition of party, so that 5% vote test only needs to be met once every 4 years
Miss.	– – –	never
Missouri	1993	Created a 10,000 signature petition procedure for a group to become a qualified party
Montana	1999	Lowered the party petition from 5% of the gubernatorial winner’s vote, to 5,000 signatures
Nebraska	2017	Expanded how parties can remain qualified to include having 10,000 registrants
Nevada	1999	Created a 250-signature petition procedure for statewide nominees of unqualified parties
N.Hamp.	1996	Created a 3% of the last gub. vote petition procedure for a group to become a party
N Jersey	1893	Eased the vote test for a party to remain on the ballot from 5% of the total Assembly vote, to 2%
N Mexico	2014	Lowered petition for minor party nominees from 1% of last vote cast, to 1% of last gub. vote
New York	1992	Lowered the statewide minor party & indp. candidate petition from 20,000 to 15,000 signatures
No. Car.	2017	Lowered the new party petition from 2% of last gub. vote, to one-fourth of 1%
No. Dak.	2005	Expanded the vote test from 5% for President or Governor, to also several other statewide offices
Ohio	1929	Created a 15% of the last gub. vote petition procedure for a group to become a qualified party
Oklahoma	2017	Eliminated mandatory petition for independent presidential candidates, if a filing fee is paid
Oregon	2013	Changed the vote test for a party to remain on so that it need only be met every four years
Pennsyl.	1893	Eased the vote test for a party, from 3% of the top vote-getter’s total, to 2%
Rhode Is.	1994	Created a 5% petition procedure for a group to become a qualified party
So. Car.	– – –	never
So. Dak.	2017	Eased the vote test for a party from just Governor, to any statewide office
Tennessee	2000	Let candidates who used the independent procedure have a party label, for the 2000 election only
Texas	1987	Expanded the vote test from 2% for Governor, to also 5% for any other statewide race
Utah	2012	Changed the vote test for a party to remain on so it only needs to be met every 4 years
Vermont	2013	Moved the deadline for a new party or independent to get on the ballot from June to August
Virginia	2013	Lowered presidential petition from 10,000 to 5,000 signatures
Wash.	2001	Eased the minor party or indp. presidential petition deadline from July to August
W. Va.	2009	Eased the minor party or indp. petition from 2% of the last vote, to 1%
Wisconsin	1983	Eased the party petition from one-sixth of voters in any 10 counties, to 10,000 signatures
Wyoming	1998	Eased the party petition from 8,000 signatures to 2% of the last U.S. House vote (about 4,000 sigs.)

On October 17, Maine Representative Norman Higgins announced that he had changed his registration from Republican to independent.

During 2017, nine state legislators have left either the Republican Party, or the Democratic Party. The other instances are:

February: Caleb Dyer of New Hampshire became a Libertarian.

May: Joseph Stallcop of New Hampshire became a Libertarian. Denise Harlow of Maine became an independent.

June: Brandon Phinney of New Hampshire became a Libertarian.

September: Bob Krist of Nebraska became an independent. Ralph Chapman of Maine became a Green. Martin Grohman of Maine became an independent.

Also, during 2017, three legislative candidates who were not major party nominees have been elected in special elections. In February, write-in candidate Emilio Vazquez was elected in Pennsylvania. In April, independent Janelle Sarauw was elected in the U.S. Virgin Islands. Also in April, Working Families nominee Joshua Hall was elected in Connecticut.

On October 14, Louisiana held a special election for State Treasurer. The ballot listed four Republicans, one Democrat, and one Libertarian. The four Republicans together received 66.56% of the vote. The Democrat received 31.26%. The Libertarian received 2.18%. Because no one got a majority, the state is holding a runoff on November 18 between the Democrat and the Republican who got the most votes.

In November, the Federal Election Commission will publish its book of 2016 election returns for federal office. It will be titled Federal Elections 2016, and it will include statewide returns for president and each house of Congress, both primaries and general elections. The book will be free.

Also during November, Congressional Quarterly will be publishing America Votes 32. It will have all federal office, and gubernatorial, election returns, both primary and general. It will include the vote by county for the various statewide general elections.

On October 22, Bernie Sanders said that he will run for re-election to the U.S. Senate in 2018 as an independent, the same route he has taken in all his winning campaigns for congress.

Green Party activist Greg Gerritt once wrote a history of the U.S. Green Party for the period 2002-2004. It had only been available electronically, and it was thought that it had been lost. However, it has been recovered. It is 70 pages. See it at https://prosperityforri.com/wp-content/uploads/2017/10/GreenPartyTempest-1.pdf.

On October 25, Tom Palzer was given permission to begin to circulate his initiative to repeal the top-two system. The petitions will say, "Repeals Current Primary Election System in State and Congressional Elections. Initiative Constitutional Amendment." It needs 585,407 signatures by April 23, 2018.