ARKANSAS ENACTS SEVERE BALLOT ACCESS LAW THAT HAD TWICE PREVIOUSLY BEEN HELD UNCONSTITUTIONAL

On February 19, Arkansas Governor Asa Hutchinson signed SB 163, which increases the number of signatures for a newly-qualifying party from 10,000 signatures, to 3% of the last gubernatorial vote, which is now 26,746 signatures. The bill had been introduced on January 24. It passed the Senate on January 30 by 27-7. It passed the House on February 13 by 60-20, with 20 members not voting. In the Senate, only one Democrat voted for the bill. In the House, 13 Democrats voted "no" and 5 Democrats voted "yes."

Between 1977 and 2007, Arkansas also required 3% of the last gubernatorial vote for a new party. That was struck down by a U.S. District Court in 1996, in Citizens to Establish a Reform Party v Priest, 970 F. Supp. 690. Arkansas filed a notice of appeal to the 8^th circuit, but then dropped its appeal. But the legislature did not lower the number of signatures. Instead it improved the law in other ways, by moving the petition deadline from January to May, and permitting five months to collect the signatures, and providing that if the party was told that it had not submitted enough valid signatures, it could have two weeks to collect more.

In 2011, the legislature moved the petition deadline back to April, and in 2013 moved it to January. Also it shrunk the petitioning period from five to three months, and eliminated the provision allowing extra time to collect more signatures if the first petition didn’t have enough.

In 2006 the Green Party sued, and again the 3% petition requirement was held unconstitutional. Green Party of Arkansas v Priest, 445 F.Supp 2d 1056. In 2007 the legislature lowered the number to 10,000 signatures.

In the years when the petition was 10,000, the Green Party used the law in all years 2008 through 2014, and the Libertarian Party in 2012 through 2018. Also Americans Elect did the party petition in 2011, although it never placed any candidates on the ballot. No other parties qualified. Thus Arkansas never had a ballot crowded with too many parties in the years when 10,000 signatures were required.

The new law has no effect on the presidential ballot, because Arkansas only requires 1,000 signatures for a party that only wants to be on the ballot for President. Also Arkansas only requires 1,000 signatures for an independent presidential candidate.

The Libertarian and Green Parties expect to sue to overturn the new law. The lawsuit may be filed next month.

On February 8, the Ninth Circuit rejected the California Secretary of State’s request for a rehearing en banc in Soltysik v Padilla, 16-55758. This is the case that challenges the California law that won’t let members of nonqualified parties have their party label on the ballot when they run for Congress or partisan state office. Instead they can only have "Party preference: none."

This action means that the U.S. District Court will hold a trial to determine if the state law should be struck down. Originally the U.S. District Court had dismissed the case without even allowing evidence, but now that court must re-do the case. This is the first case challenging any aspect of California’s top-two system that has had any success.

Ohio holds some local partisan elections during 2019. In two cities, Libertarians filed petitions to be on the Libertarian primary ballot. Brandon M. Bobbitt filed for Elyria city council, ward 7. Rob Bender filed for Reynoldsburg city council, ward 3. The primary is May 7.

The Election Boards of Lorain County and Franklin County accepted the filings, and no one challenged either candidate. Therefore, it seems that Ohio election officials have quietly and tacitly acknowledged that the party is still qualified.

The Ohio election law, section 3501.01(F), defines "political party." It says, in part, "A newly formed political party shall be known as a minor political party until the time of the first election for Governor or President which occurs not less than twelve months subsequent to the formation of such party."

The Libertarian Party was not a qualified party in 2016 in Ohio. It submitted a petition in July 2018 to be qualified for 2018. Because the petition was submitted less than a year before the November 2018 election, the law does not permit the party to lose its status in November 2018, even though it did not poll as much as 3% for Governor in 2018.

Although this seems straightforward, the Secretary of State had not publicly stated that the party is on the ballot currently and for 2020. But the action of the Lorain and Franklin County Election Boards, letting Libertarians participate in the 2019 elections, would not have happened if the Secretary of State did not agree with the Boards.

On February 5, the Third Circuit issued an opinion in Adams v Governor of Delaware, 18-1045. It agrees with the U.S. District Court, and invalidates a Delaware law requiring that all Supreme Court Justices, Superior Court Judges, and Chancery Court Judges must be registered members of a party that has registration membership of at least 5% of the state total. No Delaware party other than the Democratic and Republican Parties has ever had that many registrants.

Judges in Delaware are appointed, not elected. The state tried to defend the law by pointing out that the law also requires a partisan balance for judicial appointments, but that argument was not good enough to prevail. The basis for the decision is a series of past U.S. Supreme Court decisions that bar states from hiring and firing employees based on party affiliation, except for policy-making employees. The Third Circuit said judges do not make policy.

The decision is by Judge Julio Fuentes, a Clinton appointee. It is also signed by Judge Theodore McKee, a Clinton appointee, and Judge L. Felipe Restrepo, an Obama appointee. The case had been filed by a registered independent, but the decision applies to members of minor parties as well.

On March 1, the U.S. Supreme Court will consider whether to hear Utah Republican Party v Cox, 18-450. The issue is whether the state can override the party’s wishes, on how the party nominates. The Supreme Court won’t reveal any information about its decision to take the case until March 4 at the earliest, and possibly not for several more weeks.

On February 8, U.S. District Court Judge Edmund Sargus, a Clinton appointee, issued an opinion in Schmitt v Husted, s.d., 2:18cv-966. The issue is whether it violates the U.S. Constitution for Ohio city and county election officials to decide on their own whether to reject a local initiative petition based on its subject matter. The case arose when local initiatives to reduce the penalties for marijuana possession were removed from the ballot because the election board felt the initiatives, if passed, would be invalid. It is not yet known if the stae will appeal.

On January 31, U.S. District Court Judge Catherine C. Blake, a Clinton appointee, refused to put the Libertarian Party on the Maryland ballot while its ballot access lawsuit is pending. Johnston v Lamone, 1:18cv-3988. The party may still win the case, but first it must win declaratory relief, after evidence is presented.

The issue is the law that requires the party to submit a petition of 10,000 names in order to get back on the ballot. It went off the ballot in November 2018 because it polled less than 1% for Governor. The party argues that because it has 22,000 registered members, it is obvious that at least 10,000 voters want it on the ballot. The state argues that many voters who registered Libertarian did so years ago, and it may be that they no longer support the party, and only inertia keeps them registered as Libertarians.

On February 6, Arkansas Governor Asa Hutchinson signed HB 1152. It moves the non-presidential independent candidate petition deadline from March to May.

During February, bills to improve ballot access were defeated in three states:

Hawaii: on February 1, the House Judiciary Committee defeated HB 167, which would have deleted the column on candidate petitions for the signer to record the last four digits of the Social Security Number. Voters are reluctant to sign when they see that column on the petition.

Indiana: on February 14, the Senate defeated SB 571, which would have lowered petition requirements for statewide independent candidates and the nominees of unqualified parties from 2% of the last vote cast for Secretary of State, to 4,500 signatures. The current requirement is 44,934 signatures. No statewide petition has succeeded in Indiana since 2000, which makes a lawsuit against the requirement a possibility. Republicans voted against the bill 16-25, and Democrats voted against it 3-6.

Wyoming: on February 4, the House Corporations Committee defeated HB 225 by 2-6. It would have lowered the independent candidate petition, and the new party petition, from 2% of the last vote for US House, to 1%.

On September 20, New York Governor Andrew Cuomo signed AB 2570. It reduces the number of signatures needed for 2019 candidates to get on a primary ballot, to only one-fourth of the normal requirement. It does not apply within New York city.

The motivation for the bill is that 2019 primaries are in June, whereas they were in September in the past, so candidates are not accustomed to the new petitioning period, and are hampered by severe winter weather. Of course, that reasoning would apply to all elections in the future, not just in 2019. It may be that next year the change will be made permanent.

BALLOT ACCESS BILLS INTRODUCED

Georgia: six legislators have introduced HB 191, which would ease ballot access for independent candidates and the nominees of unqualified parties. It would also say that when a party is qualified to be on the ballot for statewide office, then it is also on the ballot for all partisan office.

Minnesota: bills have been introduced in both houses to improve ballot access laws. Senator Scott Jensen (R-Chaska) and Representative Steve Elkins (D-Bloomington) are the authors of SB 752 and HF 708. Among other changes, it would reduce the vote test for party status from 5% to 1%. If that passed, the Libertarian and Independence Parties would have qualified status.

New Mexico: HB 407, an omnibus election law bill, contains a provision lowering the number of signatures for independent candidates from 3% of the last gubernatorial vote, to 2%. The bill is likely to pass.

On February 20, the Utah House Government Operations Committee passed HB 259, which eliminates the straight-ticket device. The other states with the device are Alabama, Indiana, Kentucky, Michigan, Oklahoma, Pennsylvania, and South Carolina. An Oklahoma bill to ban the device is pending.

On February 21, the Colorado legislature passed SB 19-42, the National Popular Vote Plan bill. Governor Jared Polis has already said he will sign it. Once the bill is signed, twelve states with 181 electoral votes will be in the pact. It can’t take effect until states with 270 electoral votes have joined.

Bills to keep presidential candidates off the ballot unless they release their income tax returns have advanced in two states.

Hawaii: bills have passed the Judiciary Committee of each house. The bills are SB 94 and HB 712. Hawaii is in the Ninth Circuit, which ruled in 2000 that candidates for Congress who don’t register to vote cannot be kept off the ballot, because that would be an impermissible additional qualification. States cannot add to the qualifications that are listed in the Constitution for federal elective office. Hawaii’s Attorney General testified that the bills would be held unconstitutional, but the Committees passed them anyway.

New Jersey: the Senate passed SB 119 on February 21. The vote was 23-11. The bill only applies to the general election, not the presidential primary. It also bars presidential electors from voting for anyone who hasn’t released the returns.

Bills to convert closed primaries to semi-closed primaries, or to convert open primaries to closed primaries, are moving ahead in a few states:

New Mexico: HB 93, which would let independent voters and members of unqualified parties vote in a party primary, passed the House Consumer Affairs Committee on January 29, and passed the House State Government, Elections & Indiana Affairs Committee on February 18.

Tennessee: HB 1273, changing the open primaries to closed primaries, passed the House Elections & Campaign Finance Subcommittee on February 20. The bill is flawed because it does not acknowledge that the U.S. Supreme Court ruled in 1986 that parties may invite independents to vote in their primaries.

On February 21, State Senator Tom Umberg (D-Villa Park) introduced SB 505, which revises presidential primary ballot access. The current law says that the Secretary of State should automatically place all presidential candidates on the primary ballots if those candidates are generally recognized. The Secretary of State and Senator Umberg believe this is too vague, even though it has worked well since 1976.

The bill requires candidates to apply to be on a presidential primary ballot, and says they must meet at least two requirements from among these four:

1. To appear in a "national presidential debate." That term is not defined in the bill.

2. To qualify for federal primary season matching funds. The bill is vague on whether that means the candidate must actually file to receive the funds, or whether it is good enough to have raised the $5,000 in small donations from each of 20 states that the federal law requires. Very few candidates ever file for primary season matching funds, because the money comes with spending restrictions that major candidates dislike.

3. To have already been placed on the primary ballot, or caucus ballot, of another state. This must have happened by early December. Only two states have presidential primaries earlier than California, New Hampshire and South Carolina, so this qualification is not easy to meet.

4. To have done all of the following: been approved by one’s party, to have filed with the FEC, to have set up a campaign webpage, and to have set up a campaign headquarters in California.

If the bill passes by two-thirds in each house, it will go into effect as soon as the Governor signs it.

Presidential Electors and the Electoral College, by Robert M. Alexander, Cambria Press, 2012, 225 pages.

Robert Alexander is a political scientist. Amazingly, he is the first scholar to have studied the individuals who become presidential electors. He sent questionnaires to all presidential electors from the 2000, 2004, and 2008 elections, gathering information about how they were chosen, the extent to which they are active in their party, their financial contributions to their party, their income, their sex, their age, their ethnic background, and their religion.

More interestingly, for the 2004 and 2008 studies, he asked if they gave any thought to voting for someone in the electoral college other than the person they were expected to support. Also he asked if they had been urged by anyone to be "unfaithful."

The 2004 responses surprised him. Thirty percent said they had been lobbied to vote for someone unexpected. And 10% said they gave some thought to being "unfaithful."

In 2008, the results were even more dramatic: 83% said they were asked to vote for someone other than the presidential candidate who carried their state, and 11.5% considered voting for someone different. Much of the lobbying of electors in 2008 came from members of the public who did not believe that President-elect Barack Obama was eligible to be President, and some thought that John McCain wasn’t eligible either (he was born in Panama).

Alexander is horrified by the thought of "unfaithful" electors, but he does not try to analyze whether state laws can force electors to vote for the presidential candidate who carried their state. When he wrote this book, there had not been any litigation on that. Such litigation began in 2016, and is still going on today.

Initiative and Referendum Almanac, Second Edition, by M. Dane Waters, Carolina Academic Press, 2018, 1,121 pages.

In 2003, the Initiative and Referendum Institute published a 659-page reference book, The Initiative and Referendum Almanac. No other book had ever contained such a wealth of information about U.S. initiatives. It had the history of how the initiative was obtained in each state, and listed all the initiatives that have ever appeared on the ballot of any state. Furthermore, it had a full explanation of how to get an initiative on the ballot in each state. For anyone interested in the initiative process, it was an essential reference book.

Fortunately, a new version of the book has just been issued. It is 1,121 pages. It has 99.9% of the information that was in the first version, and of course it is up-to-date. State legislatures are constantly changing the rules for how initiatives get on the ballot, and thus an update was badly needed. Furthermore, of course, there have been many initiatives on ballots since 2003, so that section needed updating also.

The book also has some poignant tales of activists and attorneys, about how a particular fight to get an initiative on the ballot, or a particular legal fight about the rules for qualifying initiatives. Especially riveting is the story of the ten-year fight to obtain the right of circulators to work on post office sidewalks, a fight that ended halfway victoriously. The new version sells for $90.

California: Assemblymember Evan Low (D-San Jose) has introduced ACA 8, to set the voting age at 17.

Oregon: eight legislators have introduced SJR 22, which would set the voting age at 16.

The Ninth Circuit will hear two ballot access cases in San Francisco on March 12. It will hear the case against the number of signatures for independent presidential candidates in California. The same 3-judge panel, on the same morning, will also hear the Libertarian Arizona case against the primary petition requirements, requirements which are so stringent that they kept all the Libertarian candidates for federal and state office (except president) off the Arizona ballot in both 2016 and 2018.

On April 11, the Ninth Circuit will hear the case against the Washington state law that requires an independent presidential candidate to run a newspaper notice at least ten days before he or she starts to petition, mentioning the locations at which the petition will be circulating. The U.S. District Court had struck it down, and the state is appealing.

The chart below lists court decisions that have struck down laws that force independent candidates and new parties to qualify for the ballot too early in the election process. Many state legislators have no knowledge of this area of election law. An * refers to a deadline in the year before the election year.

The chart does not include decisions concerning special elections.

Bills to move petition or filing deadlines for independent candidates, or new parties, have been introduced in 2019 in Arizona, Arkansas, Delaware, Iowa, Nevada, New Hampshire, New York, Oklahoma, and West Virginia. The only one that has passed so far is the New York bill that moved the petition deadlines from August to May. The only other one that has passed in even one house of a legislature is the Delaware bill, which moves the minor party qualifying deadline from August to early April. Although it passed the House in January, it has not moved since.

State	Case Name	Year	Court	Citation	Type	Deadline
Ala.	New Alliance Party v Hand	1991	11th circuit	933 F.2d 1568	New party	Apr 6
Alas.	Sigler v McAlpine	1988	Superior	3AN-88-8695	New party/indp.	June 1
Alas.	Sykes v McAlpine	1990	Superior	3AN-90-7508	New party/indp.	Aug. 1
Alas.	Libertarian Party v Coghill	1992	Superior	3AN-92-8181	President new party	Aug. 5
Ariz.	Nader v Brewer	2011	9th circuit	531 F.3d 1028	President indp.	June 9
Ark.	Lendall v Bryant	1974	US District	387 F.Supp. 397	Independent	April 2
Ark.	Lendall v Jernigan	1977	US Supreme	433 U.S. 901	Independent	April 6
Ark.	American Party v Jernigan	1977	US District	424 F.Supp. 943	New party	Mar. 7
Ark.	Lendall v McKuen	1988	US District	LR-C-88-311	Independent	Jan. 5
Ark.	Cit. to Est. Reform Party v Priest	1996	US District	970 F.Supp. 690	New party	Jan. 2
Ark.	Moore v Martin	2018	US District	e.d., 4:14cv-65	Independent	Mar. 1
Cal.	Calif. Justice Committee v Bowen	2012	US District	2012WL 5057625	New party	Jan. 2
Ga.	Bergland v Harris	1985	11th circuit	767 F.2d 1551	President new party	July 11
Hi.	Liberrtarian Party v Waihee	1986	US District	cv-86-0439	New party	Apr. 21
Id.	Populist Party v Evans	1984	9th circuit	84-4108	New party	May 30
Ill.	Lee v Keith	2006	7th circuit	463 F.3d 763	Independent	*Dec 15
Ind.	Warrick v Condre	1983	US District	IP-83-810-C, s.d.	New party/indp.	Feb. 22
Ks.	Merritt v Graves I	1988	US District	87-4264-R	Independent	June 10
Ky.	Libertarian Party of Ky v Ehrler	1991	US District	776 F.Supp 1200	New party/indp.	Jan. 30
Me.	Anderson v Quinn	1980	1st circuit	634 F.2d 616	President indp.	April 1
Me.	Stoddard v Quinn	1984	US District	593 F.Supp 300	New party/indp.	April 1
Me.	Libertarian Party v Dunlap	2016	US District	2:16cv-2	New Party	*Dec. 1
Md.	Bradley v Mandel	1978	US District	449 F.Supp 983	New party/indp.	Mar. 8
Md.	Anderson v Morris	1980	4th circuit	636 F.2d 55	President indp.	Mar. 3
Ma.	Serrette v Connolly	1985	Superior	68172, Suffolk	New party/indp.	May 8
Mo.	McCarthy v Kirkpatrick	1976	US District	420 F.Supp 366	Independent	Apr. 27
Mt.	Kelly v McCulloch	2012	US District	cv-08-25	Independent	Mar. 15
Neb.	MacBride v Exon	1977	8th circuit	558 F.2d 443	President new party	Feb. 11
Nev.	Libt. Party of Nev. v Swackhamer	1986	US District	638 F.Supp 565	New party	Apr. 1
Nev.	Fulani v Lau	1992	US District	CV-N-92-535	New party/indp.	June 10
N.J.	LaRouche v Burgio	1984	US District	594 F.Supp 614	President indp.	Apr. 26
N.J.	Council of Alt. Parties v Hooks	1997	3rd circuit	121 F.3d 876	New party/indp.	Apr. 10
N.M.	Anderson v Hooper	1980	US District	498 F.Supp 898	President indp.	Mar. 4
N.M.	Constitution Party v Duran	2013	US District	1:12cv-325	New Party	Apr. 2
N.C.	Greaves v State Bd. of Elections	2009	US District	508 F.Supp 78	President indp.	Apr. 25
N.D.	McLain v Meier	1980	8th circuit	637 F.2d 1159	New party	June 1
Ohio	Williams v Rhodes	1968	US Supreme	393 U.S. 23	New party	Feb. 7
Ohio	Anderson v Celebrezze	1983	US Supreme	460 U.S. 780	President indp.	Mar. 20
Ohio	Denny v Eyrich	1984	US District	C-1-84-531,s.d.	Independent	Feb. 23
Ohio	Cripps v Seneca Co. Bd Election	1985	US District	629 F.Supp 1335	Independent	Feb. 21
Ohio	Libt. Party of Ohio v Blackwell	2000	6th circuit	462 F.3d 579	New party	*Nov. 3
Pa.	Peoples Party v Tucker	1972	US District	347 F.Supp 1	New party/indp.	Mar. 8
Pa.	Consumer Party v Tucker	1973	US District	364 F.Supp 594	New party/indp.	Mar. 28
Pa.	Salera v Tucker	1976	US Supreme	424 U.S. 959	New party/indp.	Apr. 4
Pa.	Libt. Party v Davis	1984	US District	84-0262, m.d.	New party/indp.	Apr. 20
Pa.	Hall v Davis	1984	US District	84-1057, e.d.	New party/indp.	Apr. 20
R.I.	McCarthy v Noel	1976	US District	420 F.Supp 799	President indp.	Aug. 12
S.D.	Nader 2000 Comm. v Hazeltine	2000	US District	110 F.Sup 2 1201	President indp.	Jun 20
S.D.	Libertarian Party of SD v Kundert	1983	US District	civ-83-3071	New party	Mar. 15
S.D.	Libertarian Part v Krebs	2018	US District	4:15cv-4111	New party	Mar. 27
Tn.	Libertarian Party of Tn v Goins	2010	US District	793 FSup 2d 1064	New party	Mar. 10
Tn.	Green Party of Tn. v Hargett	2012	US District	992 FSup 2d 959	New party	Apr. 5
Ut.	LaRouche v Monson	1984	US District	599 F.Supp 621	President indp.	Apr. 15

Since the last BAN was published, two state legislators have changed partisan registration. They are Alaska Representative Bryce Edgmon, who switched on February 11 from Democratic to independent, and New Jersey State Senator Dawn Addiego, who switched on January 28 from Republican to Democratic.

That makes seven legislators who have switched since the November 2018 election. The others all went from Republican to Democratic: three in Kansas, one in California, and one in New Jersey.

The Socialist Party will hold a presidential convention in October 2019. The city hasn’t been chosen yet. The party has nominated someone for president in every election since 1984.

On February 15, William Weld said he is launching an exploratory committee to run for President in the 2020 Republican primaries. In 2016 he was the Libertarian nominee for vice-president. He is the first person who had run on a minor party national ticket and then tried to win a major party presidential nomination since Ron Paul. Paul was the Libertarian presidential nominee in 1988, and then he sought the Republican nomination in 2008 and 2012.

On February 19, the Connecticut Supreme Court unanimously agreed with a lower court that the true state officers of the Independent Party are those representing the Waterbury faction of the party, not the Danbury faction. Independent Party of Connecticut v Merrill, 20165.

On January 28, the New York Assembly Elections Committee passed AB 2600. It says that no party may use the word "Independence" or "Independent" in its name. The vote was 10-5. All Democrats except one voted for the bill; all Republicans voted "no."

On February 12, Lyndon LaRouche died at the age of 96. He had been the U.S. Labor Party presidential nominee in 1976. In 1979 that party had dissolved itself, and from then on LaRouche had run in Democratic presidential primaries, 1980 through 2004. He also ran as an independent presidential candidate in 1984, 1988, and 1992.

In the three elections in which he ran both as a Democrat and then as an independent, he set precedents in nine states that sore loser laws don’t pertain to president. Those states were Alabama, Arkansas, Minnesota, New Jersey, North Dakota, Ohio, Rhode Island, Washington, and Wisconsin. He set more precedents on that issue than any other individual except John B. Anderson, who set such precedents in Connecticut, D.C., Idaho, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Nebraska, New Mexico, North Carolina, and Oregon. However, since then, Alabama, Arkansas, and Michigan have said those old precedents don’t apply, even though the laws in none of those states had changed. Also the Ohio law has been changed to specifically bar "sore losers" for president.

LaRouche also set a precedent in the Texas Supreme Court that states cannot add to the qualifications listed in the U.S. Constitution for president. His ballot position in the 1992 Texas Democratic presidential primary was challenged on the basis that he was a felon, currently in prison. But the Texas Supreme Court ruled that states cannot bar presidential candidates from the ballot on that basis. LaRouche v Hannah, 822 SW 2d 632 (1992).