SIXTH CIRCUIT AGREES THAT 30,000 SIGNATURES IS TOO HIGH FOR STATEWIDE INDEPENDENTS IN MICHIGAN

On September 6, the Sixth Circuit agreed with a U.S. District Court that Michigan cannot enforce a law that a statewide candidate needs 30,000 signatures. This is a historic event. In Michigan, 30,000 signatures is less than 1% of the last vote cast. Only four times previously has any U.S. Court of Appeals ever struck down any numerical requirement for ballot access for independent candidates or new parties, and in those other three instances, the percentage of signatures was far higher.

The Michigan case is Graveline v Johnson, 18-1992. The vote was 2-1. The majority consisted of two Clinton appointees, Judges Karen Nelson Moore and Ronald Lee Gilman. The dissent is by Judge Richard Griffin, a Bush Jr. appointee who is so hostile to ballot access that in 2006, he dissented in Libertarian Party of Ohio v Blackwell. In that case, the issue was Ohio’s petition deadline for new parties, November of the year before the election!

Although the Michigan petition requirement has not yet been declared unconstitutional, the majority said it is very likely that it will be held unconstitutional, and therefore the state was forced to add Chris Graveline to the ballot as an independent candidate for Attorney General. The basis for the majority’s opinion is that the Michigan petition requirement for statewide office has been in effect since 1988, and only twice has anyone successfully used it, Ross Perot in 1992 and Ralph Nader in 2004.

The U.S. Supreme Court said in 1974 in Storer v Brown, and again in 1977 in Mandel v Bradley, that if a ballot access barrier is so difficult that it is seldom used, it is probably unconstitutional. But it has taken decades to persuade lower courts to take that teaching seriously.

The other times a U.S. Appeals cut the number of signatures were: (1) in 1977 the 7th struck the Illinois petition of 5% of the last vote for Mayor of Chicago, Socialist Workers Party v Illinois StateBoard of Elections; (2) in 1980 the 8^th struck a North Dakota petition of 15,000 signatures for new parties, McLain v Meier; (3) in 2006 the 7th struck an Illinois petition of 10% of the last vote for an independent candidate for the legislature, Lee v Keith; (4) in 2017 the 11^th struck Georgia’s 1% petition for president in Green Party v Kemp.. Among these four cases, one of them went to the U.S. Supreme Court (the Chicago case), and the U.S. Supreme Court agreed with the Seventh Circuit in Illinois State Bd of Elections v Socialist Workers.

The Sixth Circuit includes Kentucky, Michigan, Ohio, and Tennessee. The Graveline precedent will be useful if anyone should sue Tennessee over the petition for a new party to get on the ballot. That law has existed since 1961, and was only used once, in 1968 by George Wallace’s American Party. Many parties have tried to complete it since then, and they have all failed. Even Americans Elect failed, its only petition failure (Americans Elect was a well-funded new party formed in 2011 that never ran any candidates, and dissolved itself in 2012). Other parties that tried and failed were the Libertarian Party, the Reform Party, the Constitution Party, the Green Party, and the Populist Party.

The Tennessee party petition is 2.5% of the last gubernatorial vote, which is sometimes higher than 40,000 signatures, although due to low turnout in 2014, now it is 33,844. It will almost certainly be higher in 2020, because turnout in 2018 is likely to be much higher than in 2014.

The Green Party and the Constitution Party sued Tennessee over the numerical requirement in 2011 and lost in 2016, but that is because the U.S. District Court Judge in that case ignored the historical record that the law had not been used since 1968. Instead he devoted most of his opinion to ruling that some other evidence should be excluded because it had improper statistical analysis. That evidence concerned whether or not minor party candidates do better when their party label is on the ballot instead of the word "independent".

Michigan: on September 5, the Sixth Circuit removed the device. The only reason the device was there is that earlier, a U.S. District Court had struck down the 2016 law that removed the device. The U.S. District Court had said that removing the device injures black voters, but the Sixth Circuit disagreed. A. Philip Randolph Institute v Johnson, 18-1910. As a result, the 2018 Michigan ballot will be the first in the history of government-printed ballots not to have the device. It will also be the first Michigan ballot to lack party logos, because the legislature removed them in 2017.

New Mexico: on September 12, the State Supreme Court ruled that the Secretary of State had no authority to add a straight-ticket device to the 2018 ballot. There is no statutory authorization, but on August 29 the Secretary of State had said that she intends to put the device on the ballot. She depended on a law saying the Secretary of State is responsible for the form of the ballot. Unite New Mexico v Toulouse Oliver, SC37227.

Between October 22 and November 30, voters of British Columbia will vote on whether to switch to proportional representation. Mail ballots will be used, and those ballots will also elect candidates to local government positions.

The ballot will be divided into two parts. The first part asks if voters want to continue using the existing system, in which each district elects one person, and the person who receives the most votes win.

The second half will ask voters to choose one of three different types of proportional representation. One is Mixed Member Proportional, used in Germany, New Zealand, Bolivia, Lesotho, Scotland, Wales, and London, England. The voter has two votes. The first vote chooses the voter’s favorite party. The second vote is for an individual candidate. The results are tallied to elect all the individual winners, and then to give each party its proportionate share of the party vote. Parties prepare lists of candidates in advance, for their supplemental winners.

The next two choices were invented in Canada. One is Dual-member Proportional. A voter only votes once, for a favorite party. But the ballot lists two candidates for each party, a primary candidate and a secondary candidate. The advantage is that the districts can be smaller, and a somewhat elaborate calculation system still guarantees that each party receives its proportionate share of the winners.

Finally, voters may choose Rural-Urban PR. In urban areas, where the districts are populous and elect more members, the winners are determined by Single Transferable Vote. In rural areas, voters use Mixed Member. This system was also invented in Canada. It is designed to persuade voters in sparsely-populated areas to support proportional representation.

Democrats are on the ballot this year for U.S. House in 433 districts, the most since 1974. This analysis counts the District of Columbia Delegate election as a U.S. House election, so treats the election as though there are 436 seats. D.C. has been electing a Delegate starting in 1972. Before that, there were 435 districts, except that in 1958 there were 436 (because Alaska had just come into the union), and in 1960 there were 437 (because Hawaii had come in). In 1961 the House went back to 435.

This year Republicans are on 398 districts. In the entire history of the United States since there are been 435 seats (starting in the 1912 election), Republicans have never been on in more than 428 districts, which they achieved in 2010, the year before the California top-two system started.

This year, the only three seats the Democrats have no candidate in are California’s 8^th district, Georgia’s 8^th district, and North Carolina’s 3^rd district. The top-two system is responsible for no Democrat being on the ballot in California’s 8^th district. In the June 2018 primary, three Democrats ran, splitting the Democratic primary vote, so the two Republicans in the race placed first and second and qualified for the November ballot. The two Republicans in the primary received 44,482 votes and 24,933 votes. The three Democrats received, respectively, 23,675, 10,990, and 5,049 votes. The total for the three Democrats was 39,714, so almost certainly if only one Democrat had run, that person would have placed second.

The chart in the column to the right shows the number of districts in which each of the two major parties had candidates, going back to 1922. The chart on page four shows the number of U.S. House candidates for each party this year, by state, as well as the independent candidates.

YEAR	DEM.	REP.
2018	433	398
2016	406	394
2014	400	395
2012	404	415
2010	412	428
2008	422	393
2006	422	392
2004	400	407
2002	400	393
2000	406	402
1998	381	398
1996	429	426
1994	412	422
1992	424	420
1990	403	391
1988	417	381
1986	419	384
1984	424	382
1982	425	390
1980	423	401
1978	421	389
1976	431	391
1974	435	378
1972	428	390
1970	430	377
1968	427	396
1966	431	382
1964	434	393
1962	434	379
1960	435	363
1958	435	342
1956	432	365
1954	433	356
1952	425	355
1950	429	347
1948	419	370
1946	426	363
1944	427	378
1942	424	342
1940	434	376
1938	428	361
1936	429	391
1934	428	358
1932	426	398
1930	396	359
1928	414	379
1926	399	369
1924	415	385
1922	407	393

The Parties in Court, American Political Parties under the Constitution, by Robert C. Wigton, 2014. Lexington Books, 383 pages.

The author is a political scientist, but his book does not present research about parties. Rather, it tells how government has regulated parties, and how courts have reacted to these regulations. As he notes, the federal government, and to a greater extent state governments, have been controlling political parties for over a century, so there is lot of content for the book. Government regulation of political parties in the United States is more pervasive than it is in most other democratic countries.

The book’s list of cited cases mentions 505 decisions dealing with the rights of political parties. Also, the book has 93 pages of footnotes. This is primarily a reference book. Nevertheless, even though Wigton is not a zealot, and though he always presents arguments on both sides, he does have recommendations:

1. Courts should protect party autonomy over internal activities, such as the structure of the organization of the party. Such protection "will ensure that parties are on an even playing field with the growing number of non-party political actors which typically operate more freely from government intervention."

2. Courts should protect the ability of political parties to make their own decisions about how to nominate candidates. "This might produce some unpalatable decisions such as allowing parties to engage in discriminatory in-house activities reminiscent of the White Primary era. But this sort of activity can be stopped in other ways today given the rise of anti-discrimination legislation and thepower of media coverage of such abuses."

3. "Minor parties should receive significant judicial protection from major parties while the major parties are able to harm them."

The book is organized around the somewhat famous "tripartite division" of what a party is. Back in the 1950’s, political scientists V. O. Key and Frank J. Sorauf wrote that a "party" is really three separate things: (1) the formal party organization; (2) the party in the electoral process; (3) the party in government, composed of the party’s executive and legislative office-holders.

Wigton favors heavy regulation for the "party in government", to prevent the majority party from writing election laws that make it difficult for it to ever be defeated. He wants to take redistricting away from legislatures and put it in the hands of nonpartisan bodies. Also he wants to minimize patronage. His book carefully sets forth the constitutional arguments on both sides of these issues.

One factual error in the book is commonly made by other writings as well. On page 72, Wigton says "Most states that define ‘political party’ do so in terms of the percentage of that the party’s gubernatorial or presidential candidate received in the last election, typically 5% of the statewide vote." Actually there are only six states that require a party to poll 5% of the total vote cast, in order to earn or keep status as a "political party." The median vote test is 2%, and there is a growing list of states that don’t require any particular percentage of the vote at all; instead they rely on registration data. It is not surprising that Wigton made this mistake, because it is repeated over and over in other books and articles, even though it is wrong. The six states are Illinois, Minnesota, North Dakota, Rhode Island, Tennessee, and Washington.

On September 18, California Governor Jerry Brown vetoed AB 1947, which bans paying circulators on a per-signature basis, for initiatives, referenda, and recalls. The veto message says that such bans make the process more expensive.

Minnesota had been one of four states in which 2016 presidential electors had filed lawsuits, arguing that the intent of the U.S. Constitution, Article Two, establishes that presidential electors are free to vote for any qualified candidate. But on September 12, the Eighth Circuit said the case in that state is procedurally flawed because the plaintiff didn’t file his lawsuit until December 2016. The Court said he should have filed in November 2016, and therefore the case is "moot". The vote was 2-0. For some reason, the third judge didn’t participate. Abdurrahman v Dayton, 16-4551.

~	#seats	Dem.	Rep.	Lib’t.	Green	Consti.	Conser	Reform	other	indp.
Ala	7	7	6	0	0	0	0	0	0	0
Alas	1	1	1	0	0	0	0	0	0	0
Ariz	9	9	8	0	2	0	0	0	0	0
Ark	4	4	4	4	0	0	0	0	0	0
Cal	53	52	45	0	3	0	0	0	0	2
Colo	7	7	7	6	0	0	0	0	0	3
Ct	5	5	5	1	2	0	0	0	0	1
Del	1	1	1	0	0	0	0	0	0	0
D.C.	1	1	1	1	1	0	0	0	0	1
Fla	27	27	22	0	0	0	0	0	0	6
Ga	14	13	13	0	0	0	0	0	0	0
Hi	2	2	2	1	1	0	0	0	0	1
Id	2	2	2	1	0	1	0	0	0	3
Ill	18	18	18	0	1	0	0	0	0	1
Ind	9	9	9	1	0	0	0	0	0	0
Iowa	4	4	4	4	1	0	0	0	0	4
Kan	4	4	4	2	0	0	0	0	0	0
Ky	6	6	6	2	0	0	0	0	0	4
La	6	6	5	3	0	0	0	0	4	3
Maine	2	2	2	0	0	0	0	0	0	3
Md	8	8	8	8	3	0	0	0	0	0
Mass	9	9	5	0	0	0	0	0	0	2
Mich	14	14	13	3	3	4	0	0	6	2
Minn	8	8	8	0	0	0	0	0	2	0
Miss	4	4	3	0	0	0	0	4	0	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	3	3	0	0	0	0	0	0	0
Nev	4	4	4	3	0	3	0	0	0	5
N H	2	2	2	2	0	0	0	0	0	0
N Jer	12	12	12	8	1	1	0	0	0	15
N Mex	3	3	3	2	0	0	0	0	0	0
N York	27	27	21	0	5	0	3	5	4	1
No C	13	12	13	5	0	0	0	0	0	0
No D	1	1	1	0	0	0	0	0	0	0
Ohio	16	16	16	4	3	0	0	0	0	1
Okla	5	5	5	1	0	0	0	0	0	2
Ore	5	5	5	4	3	1	0	0	2	0
Penn	18	18	17	3	0	0	0	0	0	0
R I	2	2	2	0	0	0	0	0	0	0
So C	7	7	7	0	1	1	0	0	3	0
So D	1	1	1	1	0	0	0	0	0	1
Tenn	9	9	9	2	1	0	0	0	0	11
Tex	36	36	32	30	0	0	0	0	0	7
Utah	4	4	4	1	1	2	0	0	3	0
Vt	1	1	1	0	0	0	0	0	1	1
Va	11	11	10	3	0	0	0	0	0	0
Wash	10	10	8	1	0	0	0	0	0	0
W Va	3	3	3	0	1	0	0	0	0	0
Wis	8	8	7	0	0	0	0	0	0	3
Wyo	1	1	1	1	0	1	0	0	0	0
TOTAL	436	433	398	117	35	15	3	9	25	84

The chart above shows how many U.S. House candidates each party is running this year in each state. Here is the details for the "other party" column: Louisiana, Independent Party; Michigan, Working Class has five and Socialist Equality has one; Oregon, Independent Party; Minnesota, Independence Party has one and Legal Marijuana has one; New York, Working Families has two, Women’s Equality has one, Independence Party has one; South Carolina, American; Utah, United Utah has two and Independent American has one; Vermont, Liberty Union.

State	Legal Requirement	Code Reference	Required	Registration	%
Al	3% of 2014 gub. vote	17-6-22	35,413	3,214,917	1.10
Ak	1% of 2012 vote cast	15.30.025	3,005	528,879	.57
Az	1 & 1/3% of 2014 gub. vote	16-801.A	20,119	3,588,466	.56
Ar	number stated in law	7-8-302(5)(B)	1,000	1,759,974	.06
Ca	.33% reg vrs as of July 2016	Elec. code 5100(b)	(reg.) 59,681	19,411,771	.31
Co	pay filing fee	1-4-801	0	3,273,112	.00
Ct	number stated in law	9-453(d)	7,500	2,100,021	.36
De	.1% of Dec. 2015 registration	Title 15, sec. 3001	653	675,663	.10
Fl	1% of Oct. 2014 registration	103.021(3)	119,316	12,863,773	.93
Ga	Court decision	Green Party v Kemp	7,500	5,430,571	.14
Hi	.1% of Oct 2014 reg voters	Title 2, 11-62	707	749,917	.09
Id	2% of 2012 pres. vote	34-501(1)c(D)	13,047	813,218	1.60
Il	number stated in law	10 ILCS 5/10-2	25,000	7,988,678	.31
In	2% of 2014 sec of state vote	3-8-6-3	26,700	4,829,243	.55
Ia	number stated in law	Title 4, sec. 45.1	1,500	1,996,290	.08
Ks	2% of 2014 gub. vote	25-302a	16,960	1,817,773	.93
Ky	number stated in law	Title. 10, sec. 118.315(2)	5,000	3,306,120	.15
La	pay filing fee	Title 18, sec. 465C	0	3,022,526	.00
Me	number stated in law	Title 21-A, sec. 354	4,000	996,853	.40
Md	number stated in law	Elec. law, 4-102	10,000	3,946,712	.25
Ma	number stated in law	Chap. 53, sec. 6	10,000	4,534,974	.22
Mi	1% of 2014 gub. vote	168.685	31,519	7,514,055	.42
Mn	number stated in law	204B.08	2,000	3,270,734	.06
Ms	just be organized	23-15-1059	0	1,881,147	.00
Mo	number stated in law	Title 9, sec. 115.315	10,000	4,209,387	.24
Mt	number stated in law	13-10-601	5,000	694,370	.72
Ne	1% 2014 gub. vote	32-716	5,395	1,208,054	.45
Nv	1% 2014 US House vote	293.1715.2(c)	5,431	1,464,819	.37
NH	number stated in law	Title 4, 655:42	3,000	919,126	.33
N.J	number stated in law	19:13-5	800	5,818,332	.01
NM	.5% of 2014 gub. vote	1-7-2.A	2,565	1,289,420	.20
NY	number stated in law	elec. law, 6-142	15,000	12,493,250	.12
NC.	.25% of 2012 gub. vote	163A-950	11,171	6,896,349	.16
ND	number stated in law	16.1-12.02	4,000	581,641	.69
Oh	1% of 2014 gub. vote	3517.01	30,560	7,861,025	.39
Ok	pay filing fee	Title 26, sec. 10-101.2	0	2,157,450	.00
Or	1.5% of 2014 gub. vote	249.732	22,046	2,568,183	.86
Pa	court order	Consti. Pty v Cortes	5,000	8,723,898	.06
RI	number stated in law	17-14-7	1,000	782,883	.13
SC	number stated in law	7-9-10	10,000	3,146,577	.32
SD	1% of 2014 gub. vote	12-7-1	2,775	544,409	.51
Tn	2.5% of 2014 gub. vote	2-1-104(a)(31)(a)	33,816	3,553,293	.95
Tx	1% of 2014 gub. vote	Elec. code 181.005	47,086	15,101,087	.31
Ut	number stated in law	20A-8-103	2,000	1,368,763	.15
Vt	be organized in 10 towns	Title 17, 2313	20	471,619	.00+
Va	number stated in law	24.2-543	5,000	5,529,742	.09
Wa	number stated in law	29A.20.121(2)	1,000	4,277,499	.02
WV	1% of 2012 pres. vote	3-5-23	6,705	1,274,887	.53
Wi	number stated in law	Title 2, 8.20(4)	2,000	3,004,051	.07
Wy	2% of 2014 US House vote	22-4-402(d)	3,302	234,341	1.41

The chart above is a companion to the chart printed in the July 2018 B.A.N., "Independent Presidential Access as a Percentage of Registration." Unlike other charts in past issues of B.A.N., these two charts have code references. They make it fairly easy for anyone to understand which states are the most strict, and therefore these two charts can be used by activists to lobby state legislators in the strict states.

In some states, the laws are severe, but they aren’t perceived as severe. For example, for new party access in presidential elections, Idaho requires the highest percentage of any state, followed closely by Wyoming. The laws of these two states have always kept the Green Party off the ballot, even after almost 30 years of Green Party electoral activity in the United States. Green Party members in these two states may be able to use the information to help persuade their state legislators to ease the laws. This is the time when citizens have the best opportunity to ask legislators to introduce bills. In a few months, in some states, deadlines for introducing billswill have passed.

According to a new story in Politico on September 21, former California Republican Congressman Tom Campbell now favors creating a new political party inside California, to represent moderates. The story also mentioned former State Senator Quentin Kopp as another supporter. The group also is believed to contain some other prominent California political figures, some of whom had been supporters of the top-two system. The name of the proposed party might be the Bear Flag Party, or the Center Party.

In other news relating to the California top-two system, a poll of professional political consultants published on September 14 shows that 35.6% believe the system has had a mostly negative effect; 24.4% said mostly positive; and 37.8% said it has been both positive and negative. In the past, professional political consultants were among the strongest supporters of the top-two system.

A Public Policy of California poll published September 27, shows that 23% of Californians who plan to vote in November expect to leave their ballot blank for U.S. Senate. There are only two Democrats on the ballot for U.S. Senate, and no write-in space.

Several parties that are ballot-qualified in a single state, and which have been active for years, have no candidates this year. They include the Alaskan Independence Party, the Independent Party of Delaware, and the Labor Party of South Carolina.

On the other hand, the Independent Party of Louisiana, which became qualified in 2016 but which had not yet had any candidates for federal or state office, has four candidates for Congress this year. The Approval Voting Party of Colorado is running its first candidate for office other than president; it has a candidate for Secretary of State, who hopes to get enough votes to qualify the party. The Working Class Party of Michigan has more nominees this year than ever before.

Socialist Action, which is nationally organized but rarely runs candidates, tried to get a U.S. Senate candidate, Fred Linck, on the Connecticut ballot this year. He needed 7,500 signatures and submitted 10,900, but he was told he was 739 signatures short. Bread & Roses, a new party formed for Maryland elections, also tried to get on the ballot this year. It needed 10,000 signatures but was told it was 270 signatures short. However, its petition may continue to circulate, and to be used for party status in 2020.

The November 1 B.A.N. will have a chart showing the number of legislative candidates in each state, for each party.

The September 1 B.A.N. had a chart, showing how much money each political party had received from state income tax check-off boxes in the ten states that provide such help for parties. But the Virginia data was incomplete. The final figures for Virginia are: Democratic $43,040; Republican $11,544. The new national totals are Democratic $251,365; Republican $201,949.