SIX WINS, TEN LOSSES IN BALLOT ACCESS CASES

During September, minor party and independent candidates won six lawsuits, and lost ten. However, not all of the losing cases are settled; the court did not put the candidate on the ballot but might later find the law unconstitutional.

Winning Cases

Florida: on September 1, the Secretary of State put Gloria La Riva on the ballot for president as the nominee of the Party for Socialism and Liberation. While this was not because of a court order, it appears to be the state’s admission that it can’t defend itself against La Riva’s lawsuit. The law says a ballot-qualified party can’t be on the ballot for president unless it is recognized by the Federal Election Commission, or unless it submits a petition of 132,781 signatures by July 15. The Party for Socialism and Liberation is not recognized by the FEC and it submitted no petition.

The state had also taken the position in 2012 that its law is unenforceable, yet in 2016 it changed its mind and enforced it against La Riva’s party. Now the Secretary of State seems to have returned to his 2012 view. In any event, at the declaratory relief stage, it will be very tough for the Secretary to explain any state interest in the restriction, when he decided not to enforce it in 2012 and 2020.

Idaho: on September 16, a state trial court kept independent presidential candidate Kanye West on the ballot. Idaho Democratic Party v Denney, Ada Co., cv-01-20-14470. The Democratic Party had sued the Secretary of State after the Secretary had put West on the ballot. The law requires candidates who use the independent procedure to "declare that they have no political party affiliation." The court said that West signed such a statement, so he qualifies.

The Democratic Party said West is a registered Republican in Wyoming, but the judge said a candidate is free to define the meaning of that statement for himself or herself.

No presidential candidate in U.S. history had ever been kept off any state’s ballot because of how he or she was registered. However, see the Arizona story in this article.

Illinois: on September 11, a state trial court retained Bill Redpath, the Libertarian nominee for U.S. House, 6^th district, on the ballot. Bixler v Illinois State Board of Elections, Sangamon Co., 20 MR 775. Redpath is the only petitioning U.S. House candidate in this year’s general election who survived a challenge. After Redpath won his challenge, persons associated with his Republican opponent sued the State Board, charging that the State Board should not count the signatures of voters who had voted in the March primary. But the law has no prohibition on voters signing, even if they voted in the primary. Redpath’s opponents have filed a notice of appeal, but the ballots are already printed.

Oregon: on September 15, a state trial court refused to remove the Libertarian Party nominees from the ballot. Perkins v Clarno, Marion Co. Circuit Court, 20CV-31103. The Oregon Republican nominee for U.S. Senate had sued the Secretary of State to force her to remove almost all the Libertarian nominees from the ballot, on the grounds that the party nominated using an invalid set of bylaws.

Texas: on Saturday, September 5, the State Supreme Court put the Libertarian nominees for congress and state office who had not paid filing fees on the ballot. In re Texas House Republican Caucus PAC, 20-0663. The Republican Party had sued to have the Libertarians removed fromthe ballot.

Most of the Libertarians had not paid the filing fee because they believe the new filing fee law for convention parties is unconstitutional. That issue is pending in another court. The State Supreme Court, in this case, said the Republican challenge had been filed too late.

Texas(2): on September 18, the State Supreme Court put the Green nominees for congress and state office who had not paid the filing fee on the ballot. In re The Green Party of Texas, 20-0708. The Democratic Party had sued to have them removed, and had done so before the deadline for filing such challenges. The State Supreme Court ruled that the filing fee law (which was passed in 2019) is flawed, because it doesn’t have a deadline by which the fees must be paid. Therefore, it is unenforceable.

Losing Cases

Alaska: on September 18, the State Supreme Court issued an order in Galvin v Fenumiai, 3AN-20-7991. It said that although the state Elections Director may have violated the law on party labels, the ballots have already been printed and the court would not order them re-printed. The Elections Director had removed the partisan affiliations of two types of candidates: (1) nominees of unqualified parties, whose partisan label was replaced by "petition candidate"; (2) nominees of qualified parties who want it noted on the ballot, as it was in the past, that they are registered independents and they are not registered members of the party that nominated them.

Arizona: on September 3, a state trial court ordered the Secretary of State not to check the Kanye West independent petition, which had 57,892 signatures to meet a requirement of 37,769. Clayton v West, Maricopa Co., cv2020-10553.

That decision said West could not use the independent candidate procedure because he is a registered Republican in Wyoming. It ignored four Arizona historical precedents that the law does not apply to presidential candidates. Section 16-341A says an independent candidate must not be a "registered member of a political party that is recognized pursuant to this Title." Obviously the Wyoming Republican Party is not a party that is recognized under Arizona law. The definition of a qualified party in Arizona relates to how many votes it polled in the last election in Arizona, or how many registered members it has in Arizona.

West appealed to the State Supreme Court, where the case was West v Clayton, cv20-0249. The State Supreme Court ignored the voter registration issue, but said West’s petition should not be checked because his candidates for presidential elector had not filed a statement of economic interests. The order is only two pages and says the court will explain its reasoning later. The explanation still has not been issued.

Arizona has never before required any candidate for presidential elector to file a campaign finance statement. The Secretary of State’s website has detailed instructions for independent presidential candidates and never suggested that the form is needed.

West had spent over $1,000,000 on his Arizona petition. No independent presidential candidate has managed to qualify in Arizona since 2008, when Ralph Nader qualified, but back then the requirement was 21,759 signatures.

Montana: on September 14, U.S. Supreme Court Justice Elena Kagan denied injunctive relief to the Green Party. Davis v Stapleton, 20A41. She did not ask the other justices to participate, and she did not ask for a response from the other side. This is the case described on page one of the September 1, 2020 BAN, in which the Green Party was stripped of its qualified status five months after it had been earned, by having some of the signers of the party’s petition recant their signatures.

New York: on September 1, U.S. District Court Judge John G. Koelti, a Clinton appointee, refused to enjoin the new definition of a qualified party, which was passed on April 3, 2020. It raises the vote test from 50,000 votes, to the greater of 130,000 or 2%, and says it must be met every two years, not every four years. The vote test can only be met by the office at the top of the ballot. SAM Party v Kosinski, e.d., 1:20cv-323. The SAM Party doesn’t have a presidential nominee, so it will lose its qualified status on November 3. It has appealed to the Second Circuit, which is expediting the case, although it will not be heard until December 2020 at the earliest.

The decision is based entirely on precedents from states in which a party that loses its qualified status may immediately re-petition to regain that status. In New York, there is no petition or other task that a group can perform to obtain party status during an odd year, but the Judge didn’t seem to understand that point.

Ohio: on September 10, the State Supreme Court removed Kanye West from the ballot, because the copy of his statement of candidacy shown on his petition sheets differs slightly from the original statement of candidacy. Ohio is the only state that requires each petition sheet to carry a copy of the declaration. State ex rel West v LaRose, 2020-Ohio-4380.

In the past, the Ohio Supreme Court had ruled four times that particular tiny differences in the original, and the copy, would be allowed.

Pennsylvania: on September 17, the State Supreme Court removed Green nominee Howie Hawkins from the ballot. In re Nomination Paper of Scroggin, 55 MAP 2020. Pennsylvania permits stand-ins on petitions. The Green Party’s presidential stand-in candidate did not file her statement of candidacy in the normal way, attached to the petition. Instead she faxed it in later, although still before the deadline. The lower court had ruled in favor of Hawkins, but the State Supreme Court reversed, on a party-line vote of 5-2.

Virginia: on September 3, a circuit court in the city of Richmond removed Kanye West from the ballot. Wilson v West, 20004252-00. The case was filed by two presidential elector candidates for West. They said they had been tricked into volunteering to be candidates for presidential elector, even though they signed a statement of candidacy in front of a Notary Public. On the basis of the West campaign’s trickery, he was removed. Virginia law permits an independent candidate to resign and be replaced by someone else, so one wonders why the electors didn’t simply use that procedure. On the other hand, one wonders at the ineptness of the West campaign for having done such a poor job of choosing presidential elector candidates. On September 17 the State Supreme Court refused to hear West’s appeal.

West Virginia: on September 14, U.S. District Court Judge Irene C. Berger, an Obama appointee, refused injunctive relief to Kanye West. West v Warner, s.d., 2:20cv-570. He had submitted approximately 14,000 signatures to meet a requirement of 7,145. The state said he didn’t have enough valid, and gave him no chance to check the state’s work. West argued that due process required that he been given a chance to show that he did have enough. The judge said that if he was worried about the state’s accuracy, he should have submitted his petitions on a flow basis, instead of waiting until the deadline day to submit all the signatures.

Wisconsin: on September 14, the State Supreme Court refused to grant injunctive relief to Howie Hawkins. Hawkins v Wisconsin Elections Commssion, 2020AP1488-OA. The Commission had removed him from the ballot because his vice-presidential nominee had moved her residence in South Carolina, although she remained in the same city. Some of the petitions had her old address and some had her new address. The Commission invalidated the sheets with the old address.

The State Supreme Court did not approve the action of the Election Commission. It just said that Hawkins should not have waited fourteen days to sue the Commission.

The purpose of showing a candidate’s address on a petition is to positively identify the candidate. Many individuals have names that are shared by other individuals, so the address is shown on petitions so there is no confusion about who is being nominated by that petition. The Elections Commission vote to remove Hawkins violated Wisconsin Supreme Court precedents that such minor matters should not invalidate petitions. For example, in 2004, the Wisconsin Supreme Court had unanimously put Ralph Nader on the ballot even though he did not have a candidate for presidential elector in each U.S. House district. In the 2004 decision, the Court said the reqauirement was "directory, not mandatory."

The vote on the Commission was 3-3, on a party-line vote.

Hawkins had filed his lawsuit on September 3. The court did not request a response from the other side until September 7, and received that response on September 8. The court did not rule until six days later. It said by then, too many ballots had been printed, and it would be too expensive to reprint them. Also a handful of ballots had already been mailed out. But if the court had asked for a response immediately, and then had ruled quickly after getting the response, that problem would not have occurred.

Wisconsin(2): on September 11, a state trial court denied injunctive relief for Kanye West. The Elections Commission had kept him off the ballot because his petition was filed 14 seconds too late. The individual who filed the petition was delayed because the building was locked and it took time for a security guard to admit her. She reached the correct office in the building before 5 p.m., and the clerk accepted the petition, but did so slightly after 5 p.m.

On September 22, the Maine Supreme Judicial Court ruled unanimously that the Republican-backed referendum petition on ranked choice voting for president did not have enough valid signatures. Therefore, Maine will use ranked choice voting for president this year. It is the first state to use RCV for president in a general election. Jones v Dunlap, CUM-20-227.

The referendum petition would have had enough valid signatures, except two of the petitioners were not registered to vote at the beginning of the petition drive. The U.S. Supreme Court in 1999 had struck down a Colorado law that required petitioners to be registered voters. The Maine Supreme Court said the Colorado decision does not control, because in Colorado 17% of the adult citizens were not registered to vote, whereas in Maine only 4% are not registered to vote. This is a very weak reason to uphold the Maine registration requirement. The Court also said that perhaps the Maine registration requirement is unconstitutional, but that the plaintiffs did not provide enough evidence on that point.

On September 18, California Governor Gavin Newsom signed SB 970. It moves the primary date in midterm years from March to June. However, the primary in presidential years, for all office, will continue to be in March.

On June 19, 2020, Rhode Island Governor Gina Raimondo signed H7901. It lowers the number of signatures for all petitions (primary and general) for both houses of Congress, for 2020 only. U.S. Senate dropped from 1,000 to 500; U.S. House from 500 to 250.

On September 18, U.S. Supreme Court Justice Ruth Bader Ginsburg died. No member of the current U.S. Supreme Court was more favorable to minor party and independent voters than she was.

In 1999, she wrote the opinion Buckley v American Constitutional Law Foundation, which struck down a Colorado law that required petition circulators to be registered voters. That decision has been the basis for many other lawsuits in lower courts that also struck down residency requirements for circulators.

Ginsburg also co-signed a dissent written by Justice John Paul Stevens in 2005, in Clingman v Beaver. That case said that the Oklahoma Libertarian Party did not have a right to invite all registered voters into its primary. Justice Clarence Thomas wrote the majority opinion, which said that allowing a minor party to invite all voters to vote in its primary would injure the major parties. Stevens and Ginsburg said, in response, "There is over a century of experience demonstarting that the two major parties are fully capable of maintaining their own positions of dominance in the political marketplace without any special assistance from the state governments they dominate."

On September 11, the Eleventh Circuit reversed the U.S. District Court decision on the issue of ex-felons who cannot afford to pay court costs, fines, and restitution. Jones v Governor of Florida, 20-12003. The Eleventh Circuit said the 24^th Amendment, which says that the right to vote shall not be abridged by reason or failure to pay "any poll tax or other tax" does not apply. All the full-time judges of the Eleventh Circuit participated. The vote was 6-4, with all Republican appointees in the majority and all the Democratic appointees in the minority.

Jo Jorgensen, Libertarian: all voters will see her name on their ballot. Her label is "Libertarian" in all states except Alabama and Tennessee, where it is "independent."

Howie Hawkins, Green: 72.8% of the voters will see his name. He is on in 30 jurisdictions: Arkansas, California, Colorado, Connecticut, Delaware, D.C., Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Texas, Utah, Vermont, Washington, and West Virginia. His label is whatever the Green Party’s normal label in each state is, except that his label is "independent" in Ohio and Tennessee. He is the first Green presidential nominee ever to be on in North Carolina. Although the Green Party is on for president in Alaska, and for all office in Louisiana, he is not on the ballot in those two states. The Alaska Green Party nominated Jesse Ventura, and the Louisiana Green Party was late with its electors. He would have been on in Montana, Pennsylvania, and Wisconsin, except that the Democratic Party persuaded courts to remove him in those three states.

Gloria La Riva, Party for Socialism and Liberation: 37.1% will see her name. She is on in 15 jurisdictions: Arkansas, California, Colorado, D.C., Florida, Illinois, Louisiana, Minnesota, New Jersey, New Mexico, Rhode Island, Tennessee, Utah, Vermont, and Washington. She is the first PSL nominee ever to be on in Illinois. Her ballot label in California is Peace & Freedom; in Vermont it is Liberty Union.

Rocky De La Fuente, Alliance: 35.0% will see his name. He is on in 15 states: Alaska, Arkansas, California, Colorado, Florida, Idaho, Iowa, Maine, Michigan, Minnesota, New Jersey, Rhode Island, South Carolina, Tennessee, and Vermont. His ballot label in California is American Independent; in Florida Reform; in Minnesota Independence-Alliance. The Delaware American Delta Party nominated him, but was late with its presidential electors.

Don Blankenship, Constitution: 32.1% will see his name. He is on in 18 states: Alaska, Arkansas, Colorado, Florida, Hawaii, Idaho, Iowa, Louisiana, Michigan, Mississippi, Missouri, Nevada, New Jersey, North Carolina, Tennessee, Utah, Vermont, and Wisconsin,. He is the first Constitution Party nominee to ever be on in North Carolina. Although the Constitution Party is on in New Mexico, Oregon, and South Carolina, those state parties didn’t nominate him. The New Mexico party nominated Sam Tittle, and the Oregon and South Carolina parties didn’t nominate anyone for president.

Brock Pierce, independent: 19.2% will see his name. He is on in 16 jurisdictions: Alaska, Arkansas, Colorado, D.C., Hawaii, Idaho, Iowa, Kentucky, Louisiana, Minnesota, Mississippi, New York, Oklahoma, Utah, Vermont, and Wyoming. In New York he is the nominee of the Independence Party.

Kanye West, independent: 14.4% will see his name. He is on in twelve states: Arkansas, Colorado, Idaho, Iowa, Kentucky, Louisiana, Minnesota, Mississippi, Oklahoma, Tennessee, Utah, and Vermont.

Brian Carroll, American Solidarity Party: 12.0% will see his name on ballots. He is on in eight states: Arkansas, Colorado, Illinois, Louisiana, Mississippi, Rhode Island, Vermont, and Wisconsin.

Alyson Kennedy, Socialist Workers Party: 10.2%% will see her name on the ballot. She is on in six states: Colorado, Louisiana, Minnesota, Tennessee, Vermont, and Washington.

Bill Hammons, Unity Party: 6.4% will see his name. He is on in three states, Colorado, Louisiana and New Jersey.

Phil Collins, Prohibition Party: 4.0% will see his name. He is on in four states: Arkansas, Colorado, Mississippi, and Vermont.

Dario Hunter, independent progressive: 3.5 % will see his name. He is on in two states, Colorado and Oregon.

Joe McHugh, independent: 2.9% will see his name. He is on in two states, Colorado and Utah.

Jade Simmons, independent: 2.5% will see her name. She is on in two states, Louisiana and Oklahoma.

Jerome Segal, Bread and Roses: 2.3% will see his name. He is on in two states, Maryland and Vermont.

Kyle Kopitke, independent: 2.3% will see his name. He is on in two states, Colorado and Vermont.

Blake Huber, Approval Voting: 2.3% will see his name. He is on in two states, Colorado and Vermont.

There are seventeen presidential candidates on the ballot in just a single state. Those only on in Colorado are: Joseph Kishore, Mark Charles, Princess Jacob-Fambro, and Jordan Scott. Vermont: Richard Duncan, Christopher LaFontaine, Keith McCormic, H. Brooke Paige, Zachary Scalf, and Gary Swing. Arkansas: C. L. Gammon and John Richard Myers. Louisiana: President Boddie and Tom Hoefling. New Mexico: Samm Tittle. Alaska: Jesse Ventura. Iowa: Ricki Sue King.

Thus there are 19 presidential candidates on in at least two states, another 17 on in just a single state, for a total of 36. This is the highest number of presidential candidates on at least one ballot in U.S. history. The previous high had been 2016, with 31.

The chart below shows how many U.S. House nominees each party has this year in each state. The parties in the "Other(1)" column are: Colorado, Unity; Hawaii, Aloha Aina; Michigan, Working Class; Minnesota, Grassroots-Legalize Cannabis; New York, SAM; Utah, United Utah; Vermont, Communist. Parties in the "Other(2)" column are: Colorado, Approval Voting; Hawaii, American Shopping; Minnesota , Legal Marijuana Now; New York, Conservative two and Working Families one.

In 2018, the number of U.S. House nominees was: Democratic 433, Republican 398, Libertarian 116, Green 35, Constitution 15, other parties 37, independents 84.

~	# seats	Dem.	Rep.	Lib’t.	Green	Consti.	Ind Pty	oth(1)	oth(2)	indp.
Ala	7	5	6	0	0	0	0	0	0	0
Alas	1	1	1	0	0	0	0	0	0	0
Ariz	9	9	9	0	0	0	0	0	0	0
Ark	4	3	4	2	0	0	0	0	0	0
Cal	53	53	46	0	0	0	0	0	0	0
Colo	7	7	7	7	0	0	0	7	1	1
Ct	5	5	5	1	3	0	2	0	0	0
Del	1	1	1	1	0	0	1	0	0	0
D.C.	1	1	0	1	1	0	0	0	0	5
Fla	27	25	27	0	0	0	0	0	0	6
Ga	14	14	14	0	0	0	0	0	0	0
Hi	2	2	2	1	0	0	0	1	1	1
Id	2	2	2	2	0	1	0	0	0	0
Ill	18	18	18	2	1	0	0	0	0	1
Ind	9	9	9	5	0	0	0	0	0	0
Iowa	4	4	4	1	0	0	0	0	0	0
Kan	4	4	4	2	0	0	0	0	0	0
Ky	6	6	6	2	0	0	0	0	0	1
La	6	6	6	3	0	0	1	0	0	1
Maine	2	2	2	0	0	0	0	0	0	0
Md	8	8	8	0	1	0	0	0	0	0
Mass	9	9	5	0	0	0	0	0	0	3
Mich	14	14	14	9	5	2	0	5	0	0
Minn	8	8	8	0	0	0	0	4	3	0
Miss	4	3	4	0	0	0	0	0	0	0
Mo	8	8	8	8	0	0	0	0	0	0
Mont	1	1	1	0	0	0	0	0	0	0
Neb	3	3	3	3	0	0	0	0	0	0
Nev	4	4	4	3	0	4	0	0	0	2
N H	2	2	2	2	0	0	0	0	0	0
N Jer	12	12	12	4	0	0	0	0	0	11
N Mex	3	3	3	0	0	0	0	0	0	0
N York	27	27	24	10	4	0	0	3	3	1
No C	13	13	12	2	1	1	0	0	0	0
No D	1	1	1	1	0	0	0	0	0	0
Ohio	16	16	16	5	0	0	0	0	0	2
Okla	5	5	5	2	0	0	0	0	0	1
Ore	5	5	5	3	2	0	0	0	0	0
Penn	18	18	18	1	0	0	0	0	0	0
R I	2	2	1	0	0	0	0	0	0	2
So C	7	7	7	0	0	3	0	0	0	0
So D	1	0	1	1	0	0	0	0	0	0
Tenn	9	9	8	0	0	0	0	0	0	11
Tex Te	36	36	36	32	2	0	0	0	0	9
Utah	4	4	4	2	0	1	0	1	0	0
Vt	1	1	1	0	0	0	0	1	0	4
Va	11	10	11	0	0	0	0	0	0	1
Wash	10	10	9	0	0	0	0	0	0	0
W Va	3	3	3	0	0	0	0	0	0	0
Wis	8	8	8	0	0	0	0	0	0	1
Wyo	1	1	1	1	0	1	0	0	0	0
TOTAL	436	428	416	119	20	13	4	22	8	64

Several one-state parties didn’t nominate presidential candidates until very recently:

American Shopping Party: nominated Brock Pierce on September 3. It is on the ballot in Hawaii.

Conservative Party of New York: nominated President Donald Trump on August 29.

Working Families Party of New York: nominated Joe Biden on August 11.

This year, the Liberty Union Party of Vermont has no nominees for any office, except that it nominated Gloria La Riva for president. This will be the first time since 1968 that the party has not had nominees for Congress and state office in Vermont. Except for the Conservative Party of New York and the American Independent Party of California, it has been on the ballot continuously longer than any other minor party in any state. It stands for left-wing anarchism, but it will probably disband soon. Its most famous candidate was Bernie Sanders, in the 1970’s.

On August 30, the Movement for a Peoples Party held a founding convention on-line. One of the leaders is the former co-chair of the Bernie Sanders presidential campaign. It intends to begin seeking qualified party status during 2021.

Guam doesn’t have any electoral votes, but it still votes for president on November 3. This year the ballot contains the nominees of the Democratic, Republican, Libertarian, Green, American Solidarity, and Prohibition Parties. It also has independent progressive candidate Dario Hunter.

Guam has been voting for president starting in 2000. It has always voted for the winner, except in 2016 it voted for Hillary Clinton.

Level the Playing Field will soon file a cert petition in the U.S. Supreme Court, asking the Court to hear its lawsuit against the Federal Election Commission over the rules for general election presidential debates.

Meanwhile, Free & Equal and Open the Debates will jointly sponsor an alternative presidential debate on Thursday, October 8, in Denver. The candidates will be in the same room with each other, and the debate will be live-streamed. It is open to every presidential candidate who is on the ballot in at least eight states.

During August, the Florida League of Women Voters changed its position on the top-two initiative that is on the ballot in November. The League now opposes the issue, because it became persuaded that the top-two plan would make it more difficult for ethnic minorities to be elected and re-elected.