DEEPLY FLAWED MONTANA BALLOT ACCESS DECISION SIGNALS COMING REPRESSION OF THE GREEN PARTY

Fifty years ago, the U.S. Supreme Court held that unequal distribution requirements for statewide petitions violate the Fourteenth Amendment. The U.S. Supreme Court said this twice, once in an Illinois case in 1969 and again in a New York case in 1970. Unequal distribution requirements give the voters of some geographical areas more power than the voters of other geographical areas.

Montana is the last state that still has unequal distribution requirements for statewide minor party or independent candidate petitions. It requires signatures from at least 34 state house districts, but in some districts as few as 55 signatures are required, whereas in others as many as 150 signatures are required. The number of signatures in each district equals 5% of the winning gubernatorial candidate’s vote total. So districts in which the winning candidate was popular have a more difficult petition requirement than districts in which the winning candidate was not popular.

On March 20, U.S. District Court Judge Brian Morris, an Obama appointee, upheld the Montana distribution requirement, which only applies to petitions for a new party, but not to statewide independent candidate petitions. He did so in a Green Party ballot access case filed in 2018, Montana Green Party v Stapleton, 6:18cv-87. In 2018 the Green Party petition had failed, not because it didn’t have the necessary 5,000 signatures statewide, but because it didn’t meet the distribution requirement.

In support of his opinion, Judge Morris cited two cases that upheld equal distribution requirements, one from Colorado, and one from Missouri. Those cases are irrelevant. The Colorado law required signatures equal to 2% of the registered voters in each State Senate district.

The Missouri law required signatures equal to 2% of the last gubernatorial vote cast in each of half the U.S. House districts, for statewide minor party and independent candidate petitions. Thus, they didn’t involve unequal requirements. All districts were treated the same.

He did not discuss the fifteen precedents from other states that struck down unequal distribution requirements, which are listed in Constitution Party of Pennsylvania v Cortes, 877 F.3d. 480 (3^rd cir. 2017) on page 491. He did not mention any state interest in Montana’s unequal distribution requirement. He did not mention the point that Montana seems to survive without any distribution requirement for statewide independent candidate petitions.

He did not even mention that in 2002, the Ninth Circuit struck down Idaho’s unequal distribution requirement for initiatives. Idaho Coalition United for Bears v Cenarrusa, 342 F.3d 1073. Montana is in the Ninth Circuit so Judge Morris should have based his decision on the Idaho precedent.

Judge Morris also did not mention that Montana’s own unequal distribution requirement for initiatives had been struck down in 2005 in Montana PIRG v Johnson, 361 F.Supp.2d 1222.

If Judge Morris, who has issued intelligent and thoughtful opinions in previous election law cases, can issue such an opinion in the Green Party case, that suggests that other judges and election administrators who prefer the Democratic Party to the Republican Party are likely to take similar unprincipled stands to keep the Green Party off the ballot in 2020.

Their motivation will be their sincere belief that the fate of the nation depends on ousting Republicans from the White House and giving Democrats a majority in the U.S. Senate.

The 2020 U.S. Senate race in Montana features incumbent Republican Steve Daines running for re-election against Democratic Governor Steve Bullock. Polls have shown this race is too close to call. Political analysis says if the Democrats are to capture a U.S. Senate majority in 2020, they need to win the Montana seat.

Press commentary in Montana uniformly assumes that if the Green Party is on the ballot in Montana, and it has a U.S. Senate nominee, that is bad for the Democratic nominee. In 2018, when the Green Party of Montana was struggling to finish its statewide petition, some Republican interests jumped in and helped finish the drive. The Secretary of State said in 2018 that the party had enough valid signatures, but the Democratic Party then sued in state court and persuaded a state court judge that the Secretary of State had been mistaken, and that the 2018 petition did not have enough signatures in a handful of legislative districts. The federal lawsuit then followed.

It is unknown if the Green Party will be on in 2020. Again, interests favorable to the Republican Party undertook a petition drive to get the Green Party on the ballot, and the Secretary of State said the 2020 petition is valid. Perhaps the Democratic Party will challenge the 2020 petition. In the meantime, the Green Party officers would rather not run anyone for U.S. Senate, but two strangers to them entered the Green Party 2020 U.S. Senate primary, which is scheduled for June.

Montana requires all qualified parties to nominate by primary, and has an open primary. If Montana let small qualified parties nominate by convention, as they did before 1969, it would be possible for the Green Party to control its own nomination process, so that if the state convention decided not to nominate anyone, then the party could make that decision. But with an open primary, the party is helpless to choose not to run anyone for this seat.

On March 12, a New York State Supreme Court Justice ruled that the hostile ballot access changes made on December 22, 2019, are invalid. Hurley v Public Campaign Finance & Election Commission, Niagara Co., E169547/2019. The state has not yet said if it will appeal.

Those changes included raising the number of statewide petitions for independent candidates and the nominees of unqualified parties from 15,000 signatures to 45,000, effective immediately. They also included making the definition of a qualified party more difficult, by raising the 50,000 vote test to the greater of 130,000 votes or 2% of the vote. Furthermore the vote test would have to be met every two years, instead of every four years, and could only be met in a presidential year by the party’s presidential nominee.

The basis for the decision is that the changes were not made by the legislature, but by a commission set up by the legislature to write regulations and laws for public funding. The opinion says that the legislature can delegate rule-making to administrative bodies, but it can’t delegate alterations to statutes.

Another hostile ballot access change made in 2019 in New York is still in place. That is the bill passed by the legislature early in the year that moved the independent petition deadline from August to May. It is likely that lawsuits will be filed against the new deadline.

On March 25, a Virginia Circuit Court lowered the number of signatures for a statewide Republican to get on the primary ballot from 10,000 signatures to 3,500 signatures, in response to a lawsuit that said petitioning has become very difficult due to the health crisis. Omari Faulkner for Virginia v Virginia State Board of Elections and the Republican Party of Virginia, Circuit Court for the City of Richmond, CL20001456-00. Faulkner is running for U.S. Senate.

The state did not oppose the lawsuit, but the Republican Party did, and had its own attorney who argued against the relief. The petitioning period in Virginia for primary petitions this year runs from January 2 to June 26. The Republican Party said at least two other Republicans running for U.S. Senate appear to have met the 10,000-signature requirement, and it isn’t fair to them to ease the rules. But the judge disagreed.

Kentucky: SB 3, which would have switched gubernatorial elections from the odd year before a presidential elecdtion to the presidential election year itself, is almost certainly dead. It had passed the State Senate on January 16 by 31-3, but it has made no progress in the House, and the legislature will probably adjourn soon.

Mississippi: HCR 47, which would revise gubernatorial elections, passed the House on March 10 by 114-2. It changes the Constitution, to end the system in effect since 1890 that says a winning gubernatorial candidate must not only receive the most votes, but most also carry a majority of State House districts. If it passes the legislature, then voters would vote on the proposal.

Oregon: HB 4026, which would have made it easier for a party to remain on the ballot, failed to move in the Senate, so it is dead. It had passed the House.

It would have lowered the alternate registration test for staying on the ballot from one-half of 1% of the state total, to one-fourth of 1%. As a result, the Working Families Party will go off the ballot next year unless it does a registration drive. Other minor parties easily stay on the ballot by using the 1% vote test, which must be met only once every other election. But that doesn’t help the Working Families Party because it never has its own nominees for statewide office; instead it nominate the Democratic nominee. The votes aren’t tallied separately for each party, so the WFP gets no separate vote tally.

Tennessee: on March 11, HB 2580 passed the House Election Campaign Finance Subcommittee. It lowers the number of signatures for a new party from 2.5% of the last gubernatorial vote to one-half of 1%.

Utah: on February 26, the legislature passed SB 28, which deletes the requirement that independent candidates must have a ballot label that says the candidate "does not qualify to be listed on the ballot as affiliated with a political party." An independent candidate in 2018 had discovered that this label injured her campaign, and she had sued; this bill settles the lawsuit.

Utah(2): On March 12, the Utah legislature passed HB 70. It repeals the straight-ticket device. If the Governor signs the bill, the only states that will still have a straight-ticket device are Alabama, Indiana, Kentucky, Michigan, Oklahoma, and South Carolina. The Governor must act by April 6.

Virginia: on February 28, the legislature passed HB 214, which legalizes petitioning by out-of-state persons. The Governor has until April 11 to act on the bill. The old ban on out-of-staters had already been struck down.

West Virginia: SB 733 failed to advance in the House, and it is now too late. It had passed the House. It would have eased the definition of a qualified party from a group that got 1% for Governor, to a group that got either 1% for President or Governor.

On March 5, the Texas Democratic Party filed a lawsuit, arguing that the U.S. Constitution requires the state to have a straight-ticket device. Bruni v Hughs, s.d., 5:20cv-35. The case is assigned to U.S. District Court Judge Marina Garcia Marmolejo, an Obama appointee. There is only one precedent, a Sixth Circuit decision from Michigan that rejected a similar lawsuit filed by the Michigan Democratic Party. However, after that decision, the voters of Michigan passed an initiative for many election law changes, including a restoration of the device.

The Texas case is especially weak if the health crisis means that all voters will have a postal ballot. The Democratic Party argues that without a device, voters must spend more time inside the voting booth, which leads to longer lines for people waiting to vote. Texas already has early voting.

California: unfortunately, Emidio "Mimi" Soltysik, the only plaintiff in the lawsuit on party labels for members of unqualified parties, has had to drop his lawsuit. He is suffering from a life-threatening medical condition. Soltysik v Padilla, U.S. District Court, central district, 2:15cv-7916. If he had not dropped the case, the state would have deposed him, and he also probably would have been required to be a witness at the trial. This had been the only lawsuit relating to the top-two system. He is a registered Socialist but when he ran for the legislature the state printed "no party preference" next to his name on the ballot.

Georgia: on March 26, the Green and Libertarian Parties filed a federal lawsuit to reduce the number of signatures needed to get on the ballot this year, due to the health crisis. Cooper v Raffensperger, n.d., case number not yet assigned.

Florida: on March 19, the State Supreme Court said that the initiative for a top-two system for state office may appear on the November 2020 ballot. Advisory Opinion to the Attorney General re: All Voters Vote, SC19-1505. The major parties had challenged the petition, arguing that the measure was described in a misleading way.

The proponents call it an "open primary", but U.S. Supreme Court decisions and textbooks have long defined "open primary" to be a system in which any voter can choose any primary ballot, but each party has its own primary ballot and its own nominees. A California court in 2004 had ruled that a top-two system cannot be called an "open primary."

Maryland: on March 3, the Fourth Circuit refused relief to the Libertarian Party in Johnston v Lamone, 19-1783. The issue was whether the state has any interest in requiring the Libertarian Party to submit 10,000 signatures to get back on the ballot, when it has approximately 20,000 registered members. The opinion is unsigned and will not be reported. It said it is constitutional for a state to make the requirements to stay on more difficult than the requirements to get on. That conclusion has little to do with the actual issue, but the panel avoided the real issue. The panel consisted of Judges G. Steven Agee, a Bush Jr. appointee; and Obama appointees Albert Diaz and Pamela Harris.

Minnesota: on March 18, the State Supreme Court issued an opinion in De La Fuente v Simon, A19-1994. It explained why it had earlier refused to put Rocky De La Fuente on the Republican presidential primary ballot. The unanimous opinion says parties have a First Amendment right to keep anyone off its primary ballot. The ruling is broad and appears to cover primaries for office other than president.

Let the People Pick the President: The Case for Abolishing the Electoral College,, by Jesse Wegman, 2020.

One might think that every possible argument about the electoral college, pro and con, has already been voiced in recent years, and there is no need for another book on that subject. But this book fills a gap. It extensively describes the 1787 constitutional convention, in great detail, and it shows that the electoral college was not designed as a compromise between large states and small states.

The only conflict at the constitutional convention between large states and small states over the issue of how many legislators each state should have. The compromise, of course, was that the Senate gives each state an equal number, but the House is proportional to population. After that was settled (and it was settled fairly early), there were no more instances of large states battling small states over the content of the Constitution.

The electoral college was the last bit of business for the convention, and the book describes in detail the way in which the convention settled on the electoral college. Plainly, the conflict that made it so difficult for the convention to write the provision for selection of the president was the conflict between the slave states and the free states.

Jesse Wegman is a member of the New York Times editorial board, and he is a very good writer. Although it wasn’t essential to the book that he talk about James Wilson, the part of the book that talks about Wilson is certainly entertaining. Wilson was one of the few individuals who participated in the adoption of the Declaration of Independence and the Constitution. He was a Philadelphian and a consistent advocate that the people should elect the president and both branches of congress.

Amazingly, later, when he was a U.S. Supreme Court Justice, he was jailed for being a debtor.

Wegman supports a constitutional amendment for a direct election of the president, and he tells the story of how a constitutional amendment for a popular vote passed the House in 1969, but failed in the Senate due to a filibuster conducted by Senators from the Deep South.

The book would have been better if he had also talked about the Lodge-Gossett Plan, which passed the Senate in 1950 but failed in the House. The Lodge-Gossett Plan preserved the advantage that small states have now, in which each state has at least three electoral votes. The Plan eliminated the human electors but preserved electoral votes. The electoral vote in each state would be a number with four digits to the right of the decimal point. The electoral vote in each state would be proportional to the popular vote for each candidate in that state. Thus, a candidate who polled 38% of the popular vote in a particular state would get the number of electoral votes for that state, multiplied by .38.

Wegman mentions the idea (although not the history of the 1950 attempt), but he disparages it. The plan has the advantage that it is more likely to be passed, because it protects the advantage that very small states have now.

Wegman also made a factual error when he writes that if the U.S. House were to pick the president, the outgoing house would vote. Actually, when the Twentieth Amendment passed in 1933, the system was changed so that the new House would pick the president.

State	Year	Party	Presidential Candidate
Alabama	1968	National Democratic of Alabama	Hubert Humphrey
Alaska	2008	Alaskan Independence	Chuck Baldwin
Arizona	1932	Arizona Progressive Democratic	Franklin D. Roosevelt
Arkansas	1992	Independent Party	Ross Perot
California	2016	American Independent	Donald Trump
Colorado	2016	Approval Voting	Frank Atwood
Connecticut	2008	Independent Party	Ralph Nader
Delaware	2004	Independent Party	Ralph Nader
Florida	2004	Ecology Party	Ralph Nader
Georgia	1944	Independent Democratic	Thomas Dewey
Hawaii	2008	Independent Party	Ralph Nader
Idaho	– –	– –	– –
Illinois	1988	Illinois Solidarity	Lenora Fulani
Indiana	1932	National	John Zahnd
Iowa	– –	– –	– –
Kansas	1968	Conservative	George Wallace
Kentucky	– –	– –	– –
Louisiana	1992	Prudence, Action, Results	Ross Perot
Maine	– –	– –	– –
Maryland	2004	Populist	Ralph Nader
Massachusetts	1992	Independent Voters Party	Howard Phillips
Michigan	1936	Commonwealth	William Lemke
Minnesota	2016	Independence	Evan McMullin
Mississippi	– –	– –	– –
Missouri	1924	Liberal	Robert La Follette
Montana	– –	– –	– –
Nebraska	2004	Nebraska Party	Michael Peroutka
Nevada	1892	Silver	James B. Weaver
New Hamp.	– –	– –	– –
New Jersey	1960	Conservative	J. Bracken Lee
New Mex.	2016	Better for America	Evan McMullin
New York	1980	Liberal	John B. Anderson
North Carolina	1980	Independent Party	John B. Anderson
North Dakota	– –	– –	– –
Ohio	– –	– –	– –
Oklahoma	– –	– –	– –
Oregon	2008	Peace	Ralph Nader
Pennsylvania	1968	Constitutional	George Wallace
Rhode Island	– –	– –	– –
South Carolina	2016	Independence	Evan McMullin
South Dakota	– –	– –	– –
Tennessee	– –	– –	– –
Texas	1944	Texas Regulars	Unpledged electors
Utah	2016	Independent American	Rocky Giordani
Vermont	2000	Progressive	Ralph Nader
Virginia	1960	Virginia Conservative	C. Benton Coiner
Washington	1936	Christian	William Dudle Pelley
West Virginia	– –	– –	– –
Wisconsin	– –	– –	– –
Wyoming	– –	– –	– –

This chart shows that it is common in U.S. history for parties only organized in a single state to nominate candidates for presidential elector, information relevant to the pending Florida ballot access lawsuit described in the March 2020 issue.

State	Requirements		Signatures Collected			Three Types of Deadlines
	Full Party	Cand.	Lib’t	Green	Consti	Full Party	Pres Party	Pres. Ind.
Ala.	51,588	5,000	500	*200	0	Mar. 3	Mar. 3	Aug. 13
Alaska	(est) (reg) 8,358	#3,212	*7,261	*1,613	*561	May 4	Aug. 5	Aug. 5
Ariz.	31,686	*#37,769	already on	10,100	600	11/29/2019	Sep. 4	Sep. 4
Ark.	*10,000	#1,000	already on	*100	already on	in court	Aug. 3	Aug. 3
Calif.	(es) (reg) 65,000	196,964	already on	already on	*232	11/2/2019	July 6	Aug. 7
Colo.	(reg) 1,000	#pay $1,000	already on	already on	already on	Jan. 10	Aug. 5	Aug. 5
Conn.	no procedure	#7,500	already on	already on	0	– –	Aug. 5	Aug. 5
Del.	(reg) *720	*7,118	already on	already on	*280	Aug. 23	Aug. 25	July 15
D.C.	no procedure	(est.) #5,000	already on	already on	can’t start	– –	Aug. 5	Aug. 5
Florida	132,781	132,781	already on	already on	already on	April 15	July 15	July 15
Georgia	64,354	#7,500	already on	0	0	*Aug. 14	*Aug. 14	*Aug. 14
Hawaii	757	#4,347	already on	already on	*already on	Feb. 24	Aug. 5	Aug. 5
Idaho	13,809	1,000	already on	*50	already on	Aug. 31	Aug. 31	Aug. 24
Illinois	no procedure	#25,000	*50	*100	can’t start	– –	June 22	June 22
Indiana	no procedure	#44,935	already on	0	0	– –	June 30	June 30
Iowa	no procedure	#1,500	0	0	0	– –	Aug. 14	Aug. 14
Kansas	21,112	5,000	already on	2,000	0	June 1	June 1	Aug. 3
Ky.	no procedure	#5,000	already on	0	0	– –	Sep. 4	Sep. 4
La.	(reg) 1,000	#pay $500	already on	already on	*158	May 18	Aug. 21	Aug. 21
Maine	(reg) 5,000	#4,000	*in court	already on	0	Jan. 2	Aug. 3	Aug. 3
Md.	10,000	10,000	*3,000	*6,000	0	Aug. 3	Aug. 3	Aug. 3
Mass.	(est) (reg) 45,000	#10,000	already on	already on	*281	Feb. 4	Aug. 2	July 28
Mich.	42,506	12,000	already on	already on	already on	July 16	July 16	July 16
Minn.	129,365	#2,000	0	0	0	May 1	Aug. 18	Aug. 18
Miss.	be organized	1,000	already on	already on	already on	Feb. 1	Sep. 4	Sep. 4
Mo.	10,000	10,000	already on	already on	already on	July 27	July 27	July 27
Mont.	5,000	#5,000	already on	*already on	0	in court	Aug. 12	Aug. 12
Nebr.	6,980	2,500	already on	0	0	Aug. 3	Aug. 3	Aug. 3
Nev.	9,608	9,608	already on	*100	already on	June 5	June 5	July 10
N. Hamp.	17,209	#3,000	0	0	0	Aug. 5	Aug. 5	Aug. 5
N.J.	no procedure	#800	0	0	0	– –	July 27	July 27
N. M.	3,483	3,483	already on	already on	already on	June 25	June 25	June 25
N.Y.	no procedure	*#15,000	already on	already on	can’t start	– –	May 26	May 26
No. Car.	11,778	*in court	already on	already on	already on	May 18	May 18	*in court
No. Dak.	7,000	#4,000	already on	0	0	Apr. 10	Aug. 31	Aug. 31
Ohio	44,296	5,000	already on	*5,500	0	July 1	Aug. 5	Aug. 5
Okla.	35,592	#pay $35,000	already on	0	0	Feb. 28	July 15	July 15
Oregon	27,960	17,893	already on	already on	already on	Aug. 25	Aug. 25	Aug. 25
Penn.	no procedure	#5,000	*200	*100	*0	– –	Aug. 3	Aug. 3
R.I.	18,758	#1,000	0	0	0	Aug. 3	Sep. 4	Sep. 4
So. Car.	10,000	10,000	already on	already on	already on	May 4	May 8	July 15
So. Dak.	3,393	3,393	already on	0	0	July 1	July 1	Aug. 4
Tenn.	56,083	275	0	0	0	Aug. 5	Aug. 5	Aug. 18
Texas	83,435	79,939	already on	already on	in court	May 25	May 25	May 11
Utah	2,000	1,000	already on	already on	already on	11/30/2019	11/30/2019	Aug. 17
Vermont	be organized	#1,000	already on	*50	0	12/31/2019	Aug. 3	Aug. 3
Virginia	no procedure	#5,000	*1,500	0	0	– –	Aug. 21	Aug. 21
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	– –	July 25	July 25
West Va.	no procedure	#7,145	already on	already on	0	– –	Aug. 3	Aug. 3
Wisc.	10,000	#2,000	0	0	already on	April 2	Aug. 2	Aug. 4
Wyo.	4,018	4,018	already on	0	already on	June 1	June 1	Aug. 25
States On			36	22*	16*	~

# partisan label permitted. *change since the last petitioning chart, which was in the January 1, 2020, newsletter. "No procedure" means that state has no means for a group to transform itself into a qualified party in advance of the election.

On March 25, the Constitution Party made plans for a presidential convention that will be held remotely, instead of in-person. It will be May 1-2. Delegates must be registered by April 15. Presidential candidates may be nominated on the motion of two state delegations. Each state delegation will caucus after the speeches. Each state can decide for itself whether to caucus physically or remotely. Chairs of each state delegation will announce their state’s vote, but each delegate will also separately e-mail his or her vote to the national secretary, as a backup.

California: Phil Collins 18,145; Rocky De La Fuente 12,583; Don Blankenship 10,215; J. R. Myers 7,921; Charles Kraut 6,742.

Idaho: Don Blankenship 250; Sheila "Samm" Tittle 195; Daniel Clyde Cummings 133; Charles Kraut 124; J. R. Myers 116; Don J. Grundmann 88.

Missouri: Don Blankenship 278; uncommitted 270; Don J. Grundmann 168.

North Carolina: No preference 117; Don Blankenship 102; Charles Kraut 62.

California: Howie Hawkins 4,157; Dario Hunter 2,525; Sedinam Moyowasifza-Curry 2,045; Dennis Lambert 1,973; David Rolde 760.

Massachusetts: write-ins 369; no preference 316; Dario Hunter 224; Howie Hawkins 217; Sedinam Moyowasifza-Curry 141; Kent Mesplay 55; David Rolde 4.

Missouri: Howie Hawkins 170; uncommitted 149; Dario Hunter 110; David Rolde 82.

North Carolina: Howie Hawkins 221; no preference 109.

California: Gloria La Riva 4,404; Howie Hawkins 2,161.

California: Jacob Hornberger 5,471; Jo Jorgensen 3,484; Vermin Supreme 3,411; Ken Armstrong 2,969; Kim Ruff 2,294; Adam Kokesh 2,112; Sam Robb 1,698; Dan Behrman 1,662; Max Abramson 1,577; Souraya Faas 978; Steven A. Richey 967; Erik Gerhardt 730; Keenan Wallace Dunham 694.

Massachusetts: 958 write-ins; 804 no preference; 398 Vermin Supreme; 369 Jacob Hornberger; 324 blank; Dan Behrman 294; Kim Ruff 224; Arvin Vohra 151; Ken Armstrong 145; Jo Jorgensen 141; Sam Robb 127; Adam Kokesh 125; Max Abramson 98.

Missouri: Jacob Hornberger 1,683; uncommitted 573.

North Carolina: no preference 2,022; Jacob Hornberger 584; John McAfee 550; Kim Ruff 469; Vermin Supreme 387; Ken Armstrong 346; Jo Jorgensen 267; Steve Richey 227; James Ogle 207; Souraya Faas 169; Adam Kokesh 163; Max Abramson 160; Dan Behrman 144; Ken Blevins 122; Jedidiah Hill 117; Erik Gerhardt 99; Arvin Vohra 77.

No Green Party nominee has ever appeared on a Georgia ballot for federal or state office, because the state’s ballot access laws are so severe. But Georgia says that in special elections, anyone can get on the ballot just by paying a filing fee. Georgia is holding a special U.S. Senate election in November 2020, and a Green has paid his filing fee and will appear on the ballot, with the party label. He is John Fortun.