ARKANSAS MARCH INDEPENDENT CANDIDATE PETITION DEADLINE STRUCK DOWN

On December 15, U.S. District Court Judge James M. Moody, an Obama appointee, ruled that the Arkansas March 1 petition deadline for non-presidential independent candidates is too early. He issued an injunction setting the 2018 deadline on May 1. Moore v Martin, e.d., 4:14cv-65.

The presidential independent deadline in Arkansas is in August, and this case had nothing to do with presidential candidates.

As a result of this decision, the only states in which the 2018 non-presidential independent deadlines are earlier than May are California, Idaho, Mississippi, North Carolina, Oklahoma, South Dakota, Tennessee, and Utah. None of those deadlines has been challenged in court, except North Carolina, where a case is pending in U.S. District Court. However, the Idaho and Tennessee deadlines are very vulnerable to court challenge, because in both states the deadline for a new party petition is substantially later than the independent deadline, which makes no sense. Both states have August deadlines for new party petitions.

No state has a 2018 independent deadline earlier than March. However, in 2020, California’s deadline will be December of the year before the election.

Judge Moody has not issued a detailed opinion yet, explaining his decision. He had held a trial on December 12, at which an employee of the Secretary of State’s office admitted that the state could cope with checking independent candidate petitions if the deadline were later than March 1. The judge put out his conclusion quickly, because the plaintiff-candidate, Mark Moore, running for Lieutenant Governor in 2018, can now plan his petition drive.

On December 13, the Third Circuit issued a decision in Constitution Party v Cortes, 16-3266. The issue is the county distribution requirement that was created last year, which requires minor party and independent candidates to obtain 250 signatures from each of ten counties. They also need a statewide total of 5,000 valid signatures, but the only issue in the case is whether they can be required to have 250 signatures from various counties.

The requirement only applies to state office, not federal office.

The decision says that if the state really wants the distribution requirement, it must explain why it is necessary, and why it doesn’t violate the "one person, one vote" standard set out by the U.S. Supreme Court in the 1960’s. Counties vary hugely in population. Giving any ten counties the power to either put a candidate on the ballot or keep the candidate off means that voters in small-population counties enjoy greater power than voters in large counties, such as Philadelphia County.

The distribution requirement is not in the statutory law. It was created last year by the U.S. District Court Judge in this case, Lawrence Stengel. He included it because Pennsylvania already has a somewhat similar requirement for petitions to get on the primary ballots of the Democratic and Republican Parties. At the same time Judge Stengel added the distribution requirement, he lowered the number of signatures for all minor party and independent statewide petitions from approximately 30,000, to exactly 5,000.

Pennsylvania is the only state that has county distribution requirements for statewide candidate petitions. They have been struck down, or repealed, in all the other states. Twice the U.S. Supreme Court itself struck them down, once in an Illinois case, and once in a New York case. Even in Pennsylvania, the primary distribution requirement was struck down in 1979, but all the state did in response was repeal it for federal office, not state office. The 1979 case was Elliott v Shapp, e.d., 76-1277.

It is possible the state will agree to drop the distribution requirement. The U.S. District Court will hold a status conference on January 10, and at that time the state may agree. If not, the U.S. District Court will be obliged to hold a trial to settle the issue.

If there is a trial and the distribution requirement is struck down, chances are some Democratic or Republican candidate will file a lawsuit against the distribution requirement for primary petitions.

On October 20, a U.S. District Court struck down Alaska’s ban on out-of-state circulators for initiative petitions. Bonner v Bahnke, 3:17cv-202. The only states that now ban out-of-state circulators are New York, Pennsylvania, New Jersey, North Dakota, and South Dakota. The Pennsylvania and New Jersey bans only apply to petitions to get someone on the ballot in a primary. They are under attack in the Third Circuit in Wilmoth v Guadagno, 17-1925. The New York ban is under attack in U.S. District Court in Merced v Spano, e.d., 1:16cv-3054.

Back on July 15, 2016, a U.S. District Court struck down an Arkansas law that said a new party had to choose all its nominees (except President) in the year before the election. On November 30, the Eighth Circuit refused to disturb that ruling. Libertarian Party of Arkansas v Martin, 16-3794.

After the party had won the case in U.S. District Court, the 2017 session of the legislature eased the law, to provide that new parties (which nominate by convention) can wait until primary day to hold their conventions. But even though the law had been improved, the state still tried to persuade the Eighth Circuit that the lower court had been wrong. But the Eighth Circuit said the case is moot. The decision is by Judge Roger Wollman, a Reagan appointee; and it signed by Judges Michael Melloy and Raymond Gruender, Bush Jr. appointees.

Arkansas primaries are in May of election years. Arkansas still has an unreasonably early January 2 petition deadline for new parties. Because new parties nominate by convention as late as May, there is no state interest in requiring the petition to be submitted in January, and it is likely that if the legislature doesn’t fix that problem, Arkansas will be sued by the Green Party or any other party that is not now on the ballot.

In 1977, when the new party petition was in April, a U.S. District Court struck that deadline down, in a case filed by the American Party. The legislature then moved the deadline to May, but in 1987 it moved the deadline back to January. In 1996 that deadline was against struck down, in a Reform Party lawsuit. The legislature moved it to May, but then a few years ago moved it back to January. There is no other state in which the legislature has repeatedly ignored federal court rulings relating to ballot access.

On December 19, U.S. District Court Judge Karen Schreier issued an order in Libertarian Party of South Dakota v Krebs, 4:15cv-4111. Although she did not decide the case, she cleared the way for a trial. She ruled against the state’s attempt to have the case dismissed on standing, mootness and ripeness grounds. The issue is the March deadline for petitions to create a new party.

The state argues that the March petition deadline is necessary to provide for the new party’s primary, in June. The Libertarian and Constitution Parties argues there is no need for the state to provide a primary for newly-qualifying parties. Most states let new parties nominate by convention, or by petition.

The judge wants a trial in January or February. There is reason to believe that no trial will be needed, however, because there is a good chance the 2018 legislative session will improve the deadline and make the case moot.

Texas is the only state that forces all non-presidential candidates to file a declaration of candidacy in the year before the election. Independent candidates must file with election officials. Then, they circulate petitions between March and late June. Similar laws, requiring independents to file a declaration of candidacy early in the election year, have been struck down in South Carolina in 1990 and West Virginia in 2016, but in Texas were upheld in 1996.

Candidates seeking the nomination of a party must file with their own party’s officers, also in December. However, in a recent court appearance, attorneys for the Texas Secretary of State said that the deadline for filing for a party nomination can’t be enforced by the state.

The court case was Republican Party of Texas v Pablos, w.d., 1:17cv-1167. The Republican Party filed the case because it was trying to help incumbent Republican Blake Farenthold remove his name from the March 2018 Republican primary. Farenthold filed for re-election, but then changed his mind and said he didn’t want to run again. But he had missed the deadline for withdrawing. The Secretary of State, the defendant, in his briefs insisted that the law must be enforced.

But on December 19 at oral argument, the state changed its mind and said that because Farenthold, in accordance with normal procedure, had filed for re-election with the Republican Party, the state has no official knowledge of his filing and if the party sent in a list of primary candidates to the Secretary of State that omitted his name, that was OK. The case was then considered moot and the party withdrew it.

Then on January 20, the Democratic Party filed its own case, arguing that the outcome violates Texas law, but the court denied injunctive relief for the Democrats, so that case was voluntarily withdrawn. That case was Texas Democratic Party v Republican Party of Texas, w.d., 1:17cv-1186. The outcome seems to be that the law requiring party candidates to file in December can’t really be enforced, if the parties don’t want to enforce it.

Santa Fe, New Mexico, will use ranked choice voting for its city election in March 2018 for the first time. The voters of Santa Fe passed an initiative in 2009 to use ranked choice voting, but the city had refused to implement that because it said the technology isn’t ready. But on November 29, a lower state court ordered the city to implement the system. On December 20, the city council passed implementing legislation.

The Independent Party plans to ask the U.S. Supreme Court to review a decision of the Ninth Circuit, over whether a party is permitted to use that name in California. The Secretary of State ruled that the party can’t even begin to try to qualify because its name is too similar to the name of the already-qualified American Independent Party. The Secretary did not further analyze the issue.

One might think that the two names are too similar because they both share a common word, "Independent", in their name. However, California has had the same ban on too-similar names in its law since 1891, the year the government-printed ballot was created in California. It was originally section 1188 of the Political Code.

Obviously, it was never intended to ban the use of a single word in the names of two parties. In 1896, California let the National Democratic Party on the ballot even though the Democratic Party was on the ballot.

In 1900, California let the Social Democratic Party on the ballot (in 1901 it changed its name around the nation to the Socialist Party, but it was on the ballot in many states, not just California, in 1900 as "Social Democratic."

In 1912 California let the Socialist Labor Party on the ballot in a single Assembly district (the 74^th), even though the Socialist Party was on the ballot. And in 2011 it let Americans Elect on the ballot even though American Independent was already on the ballot.

California was not alone in allowing two parties to share a common word in their name. During the years when government-printed ballots have existed, 47 of the 50 states at one time or another have let two parties on the ballot, even though they shared a common word in their name.

The chart below under the headline: "WHEN IS THE LAST TIME EACH STATE LET TWO PARTIES ON THE BALLOT THAT SHARED A COMMON WORD IN THEIR NAMES?" lists the most recent instance for each state. The column on the right shows the office for which both parties ran someone. In instances when the two parties did not run against each other, then the right column lists two offices, one for each of the two parties.

The Coalition for Free & Open Elections (COFOE) has decided to contribute $2,000 to the costs of appealing the Independent Party case to the U.S. Supreme Court. COFOE thanks everyone who has contributed to COFOE over the years.

On December 6, U.S. District Court Magistrate Judge Mary Pat Thynge, a Bush Sr. appointee, struck down a Delaware law that says only Democrats and Republicans may be appointed to a judicial post. The law does not mention the Democratic or Republican Parties, but says, relating to State Supreme Court justices, "Three of the five justices shall be of one major political party, and two of said justices shall be of the other major political party." The law is similar for lower state court judges. Adams v Carney, 1:17cv-181.

The Delaware election law defines a major political party to be one with 5% or more of the registration. In theory there might be more than two such parties, although every since Delaware has had registration by party, only the Republicans and Democrats have met that definition.

The plaintiff, James R. Adams, was a registered Democrat until early this year, when he became an independent. He said he left the Democratic Party because he feels it isn’t progressive enough. The state argued that he doesn’t have standing because he was not likely to be appointed anyway, but that argument did not work. The state also complained that he filed the lawsuit just days after he changed his registration, but that argument didn’t work either.

As far as is known, no other state has such a law.

Earlier this year, the North Carolina definition of a qualified party was expanded to include any party whose presidential nominee was on the ballot in at least 35 states in the last election. The law says the burden is on the party to prove that it met this standard. On December 13, the State Board of Elections told the Green Party (the only party affected by this new law at this time) that the booklet of 2016 election returns, Statistics of the Presidential and Congressional Election of 2016, published by the Clerk of the U.S. House of Representatives, is good enough evidence. Otherwise the Board would have required the Green Party to obtain notarized letters from state election officials in 35 other states, a daunting task.

America Votes 16 is now published. It has election returns for 2016 and 2015. It is part of a series of election returns books that have been published every two years, starting in 1956. It has the vote for President, Governor and U.S. Senator by county (for the major parties). Other pages list everyone who was on the ballot for those offices, as well as U.S. House, and give the vote totals. Unfortunately the new book costs $250. The publisher is Sage.

The Federal Election Commission still hasn’t published its book of 2016 election returns for federal office, but it is expected in January. It will be free and will be titled Federal Elections 2016.

On December 4, Gallup Polls again released its survey asking voters about their partisan affiliation. The findings: Democratic 44%; Republican 37%; others 19%.

State	Year	Party Label #1	Party Label #2	Office
Alabama	1982	Alabama Democratic	The National Democratic Party of Alabama	Governor
Alaska	2002	Republican	Republican Moderate	Governor
Arizona	1968	Socialist Labor	Socialist Workers	President
Arkansas	1992	Take Back America	America First	President
California	2014	Americans Elect	American Independent	Lt. Governor/Asm. 79
Colorado	2012	American Constitution	American Third Position	President
Connecticut	1952	Socialist	Socialist Labor	President
Delaware	1976	Socialist Labor	U.S. Labor	President
Florida	2008	Socialist	Socialist Workers	President
Georgia	1948	Democratic	States Rights Democratic	President
Hawaii	1982	Democratic	Independent Democratic	Governor
Idaho	1898	Republican	Silver Republican	Governor
Illinois	1976	Socialist Labor	Socialist Workers	President
Indiana	1972	Socialist Labor	Socialist Workers	President
Iowa	2008	Socialist Workers	Socialist	President
Kansas	1896	Democratic	Socialist-Democrat	President
Kentucky	1976	American	American Independent	President
Louisiana	2012	Socialist Workers	Socialist Equality	President
Maine	1952	Socialist	Socialist Labor	President
Maryland	1900	Democratic	Social Democratic	President
Mass.	1942	Socialist	Socialist Labor	Governor
Michigan	1984	Workers World	Workers League	President
Minnesota	2000	Reform	Reform Party Minnesota	President
Mississippi	1948	Democratic	National Democratic	President
Missouri	1952	Socialist	Socialist Labor	President
Montana	1900	Democratic	Social Democratic	President
Nebraska	1896	Democratic	National Democratic	President
Nevada	– – –	– – –	– – –	– – –
N.Hamp.	1980	Socialist Workers	Workers World	President
N.Jersey	2014	American Labor	For Americans	US House 2 and 5
N. Mexico	1992	Socialist Workers	Workers World	President
New York	2010	Taxpayers	Tax Revolt	Governor/US House 5
No.Caro.	1948	Democratic	States Rights Democratic	President
No.Dakota	1976	American	American Independent	President
Ohio	1932	Socialist	Socialist Labor	President
Oklahoma	– – –	– – –	– – –	– – –
Oregon	2004	Socialist	Freedom Socialist	US House 3/Rep 45
Pennsy.	1984	Socialist Workers	Workers League	President
Rhode Is.	2000	Socialist Workers	Workers World	President
So.Caro.	1940	Democratic	Jeffersonian Democratic	President
So.Dakota	1900	Democratic	Social Democratic	President
Tennessee	1948	Democratic	States Rights Democratic	President
Texas	1948	Democratic	States Rights Democratic	President
Utah	1994	Independent Party	Independent American	U.S. Senate
Vermont	1900	Democratic	Social Democratic	President
Virginia	1956	Democratic	Virginia-Social-Democratic	President
Washingtn	2004	Socialist Workers	Socialist Equality	President
West Va.	1900	Democratic	Social Democratic	President
Wisconsin	2000	Socialist Workers	Workers World	President
Wyoming	– – –	– – –	– – –	President

See story above: INDEPENDENT PARTY WILL SEEK U.S. SUPREME COURT HELP for more information.

STATE	REQUIREMENTS		SIGNATURES OR REGISTRATIONS OBTAINED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	WK FAM	Party Due	Indp. Due
Ala.	35,413	35,413	*1,000	0	0	0	June 5	June 5
Alaska	(reg) 8,925	#3,213	already on	(rg) *1,720	*416	0	June 1	Aug. 21
Ariz.	23,041	(est) #40,000	already on	already on	0	0	March 1	May 30
Ark.	10,000	10,000	*already on	0	0	0	January 2	*May 1
Calif.	(es) (reg) 65,000	65 + fee	already on	already on	326	0	January 2	March 9
Colo.	(reg) 1,000	#1,000	already on	already on	already on	0	Jan. 10	July 12
Conn.	no procedure	#7,500	already on	already on	0	already on	– – –	Aug. 8
Del.	(est.) (reg) 680	(est.) 6,800	already on	already on	*289	*374	Aug. 21	July 15
D.C.	no procedure	#3,000	already on	already on	can’t start	can’t start	– – –	Aug. 8
Florida	0	pay fee	already on	already on	already on	0	Sep. 1	July 15
Georgia	54,306	#51,912	already on	0	0	0	July 10	July 10
Hawaii	750	25	already on	already on	*50	0	Feb. 22	June 5
Idaho	13,809	1,000	already on	0	already on	0	Aug. 30	March 9
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	– – –	June 25
Indiana	no procedure	#26,700	already on	*200	0	0	– – –	June 30
Iowa	no procedure	#1,500	already on	0	0	0	– – –	Aug. 17
Kansas	16,776	5,000	already on	0	0	0	June 1	Aug. 6
Ky.	no procedure	#2,400	already on	*0	*0	*0	– – –	Aug. 14
La.	(reg) 1,000	#pay fee	already on	already on	*171	0	May 17	Aug. 17
Maine	(reg) 5,000	#4,000	already on	already on	0	0	*Jan. 2	June 1
Md.	10,000	*10,000	already on	already on	0	0	Aug. 6	Aug. 6
Mass.	(est) (reg) 45,500	#10,000	already on	(reg) 5,709	169	39	Feb. 6	July 31
Mich.	32,261	30,000	already on	already on	already on	0	July 19	July 19
Minn.	147,247	#2,000	0	0	0	0	May 1	June 5
Miss.	be organized	1,000	already on	already on	already on	0	March 1	March 1
Mo.	10,000	10,000	already on	already on	already on	0	July 30	July 30
Mont.	5,000	#10,685	already on	*2,500	0	0	March 15	May 29
Nebr.	4,880	(es) 121,000	already on	300	0	0	Aug. 1	Sept. 3
Nev.	10,785	250	already on	(reg) 4,306	already on	0	June 3	June 3
N. Hamp.	21,746	#3,000	already on	0	0	0	Aug. 7	Aug. 7
N.J.	no procedure	#800	0	0	0	0	– – –	June 5
N. M.	2,565	15,390	already on	already on	0	0	June 28	June 28
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	already on	– – –	unsettled
No. Car.	*11,778	*70,666	already on	*already on	*1,000	0	May 16	*April 23
No. Dak.	7,000	1,000	already on	0	0	0	April 15	Sep. 3
Ohio	54,965	5,000	*75,500	already on	0	0	July 3	May 7
Okla.	24,745	pay fee	already on	0	0	0	March 1	April 13
Oregon	22,046	18,279	already on	already on	already on	already on	Aug. 28	Aug. 28
Penn.	no procedure	5,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 1
R.I.	16,203	#1,000	0	0	0	0	Aug. 1	July 10
So. Car.	10,000	10,000	already on	already on	already on	already on	May 6	July 16
So. Dak.	6,936	2,775	already on	0	already on	0	in court	April 24
Tenn.	33,844	25	*7,100	0	0	0	Aug. 16	April 5
Texas	47,086	47,086	already on	can’t start	can’t start	can’t start	May 19	June 28
Utah	2,000	#1,000	already on	*already on	already on	0	Nov 30, 15	March 15
Vermont	be organized	#500	already on	0	0	already on	Jan. 1	Aug. 7
Virginia	no procedure	#10,000	*0	*0	*0	*0	– – –	June 12
Wash.	no procedure	#pay fee	can’t start	can’t start	can’t start	can’t start	– – –	May 18
West Va.	no procedure	#6,516	already on	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	0	May 1	June 1
Wyo.	5,036	5,036	already on	*0	already on	*0	June 1	Aug. 27
TOTAL STATES ON			39*	23*	13*	5	“	“

b#partisan label permitted.
*change since July 1 2017 issue.

On December 3, 2017, John B. Anderson died at the age of 95. He is one of three U.S. politicians who won landmark ballot access victories in the U.S. Supreme Court. The others are George Wallace and Eugene McCarthy.

Anderson won a U.S. Supreme Court precedent that early petition deadlines for independent presidential candidates are unconstitutional, even in states that require a small number of signatures. Anderson v Celebrezze, 460 U.S. 780, used U.S. history to establish the point that minor party and independent candidates emerge in response to public disappointment with both the Republican and Democratic nominees. Therefore, deadlines must be later for independents and new parties, than for major party candidates who run in presidential primaries.

Anderson also won many rulings that "sore loser" laws do not apply to presidential primaries. Anderson had been on the ballot in 20 Republican presidential primaries in 1980 when, on April 24, he said he was quitting the race for the Republican nomination and would run as an independent. No state kept him off the November ballot because he had run in a Republican presidential primary. However, since then, three states that had not applied sore loser laws to president have reversed course and now do so. They are Michigan, Alabama, and Arkansas.

Finally, Anderson won rulings that independent presidential petitions, in states that require a vice-presidential name on the petition, can carry a "stand-in" vice-presidential candidate. Only five states refused to allow this. Anderson sued three of them (Florida, Indiana, and Pennsylvania) and won all those cases. He didn’t get around to suing South Dakota or Texas. However, South Dakota now does permit stand-ins for vice-president.

The New York Times obituary of December 5 did mention his ballot access victory on early petition deadlines, but it did not mention his equally dramatic lawsuits over "sore loser laws" and bans on vice-presidential stand-ins.

Michael J. Dubin, the greatest researcher for finding very old U.S. election returns, died on June 5, 2016, at the age of 77, in Arizona. He was the author of almost a dozen reference books of election returns. Many of his books have information that no other source has. He wrote the only book that has U.S. presidential election returns for before 1824, "Presidential Elections 1788-1860." He also wrote the only book ever published that has election returns for every candidate for Congress who was on the ballot, "United States Congressional Elections 1788-1997". Another very useful reference book of his, "Party Affiliations in the State Legislatures 1796-2006", is not an election returns book, but a unique reference for knowing the partisan composition of each state’s legislative chambers almost all the way back to statehood (he couldn’t go earlier than 1796 because there were no clear-cut parties before that year).

PARTY	N.J. Vote	Va. Vote	N.J. %	Va. %
Amer Solid	821	– –	1.42%	– –
Green	3,310	6,409	2.19%	5.23%
Lib’t.	1,866	6,295	1.19%	6.81%

New Jersey and Virginia are the only states that held regular legislative elections in November 2017. The only minor parties that had candidates on the ballot for legislature in either of those states are mentioned above. "Amer Solid" means "American Solidarity Party". The percentages above are each party’s share of the vote in the districts in which it had candidates.

New Jersey also had State Senate elections. The only minor party candidates in a New Jersey State Senate election were a Green who polled 1,306 votes, 3.86%; and a Libertarian who polled 574 votes, .90%.