AMERICANS ELECT NATIONAL OFFICE SHUTDOWN LEAVES CONTROL OF BALLOT LINES WITH IN-STATE ACTIVISTS

During June and July, Americans Elect has evolved towards extinction. Although it had announced on May 17 that it would not run a presidential nominee this year, at the time the organization said it intended to preserve as many of its hard-won ballot access lines as possible, for future elections.

But during June and July, the organization shifted away from that stance, and decided (1) not to submit petitions it had already collected for party status in Georgia, Idaho, and Texas; (2) not to run any candidates for lesser statewide office in any of the 30 states in which it is ballot-qualified; (3) not even to protest the failure of some California county election offices to disseminate the up-to-date voter registration forms that include "Americans Elect" as a choice.

The California example is the most dramatic instance of Americans Elect’s disinterest in saving its ballot lines. Americans Elect will be removed from the California ballot in January 2014 if its registration does not reach one-fifteenth of 1%, and failure to have its name on the voter registration cards will surely mean Americans Elect will not reach that goal. Thus between $2,000,000 and $3,000,000 spent just to qualify in California will be wasted. The party qualified by submitting a petition of 1,030,040 valid signatures.

Furthermore, Americans Elect no longer has any employees, nor a physical office. It can’t even update its own web page because there are no employees to do that work. The web page continues to post the names of eight members of the Board of Directors, but the Board no longer has eight members; instead it has just three: Peter Ackerman, Kahlil Byrd, and Joshua Levine.

What This Means for 2012 Ballot Access

In the entire history of political parties and government-printed ballots in the United States, ballot access in presidential elections has always been controlled by state political parties, not national political parties. National conventions have been choosing presidential and vice-presidential candidates since 1832, but no national convention has legal force. If a state unit of a national party wishes to nominate someone for President or Vice-President other than the choice of the national convention, the state party choice prevails.

This is because under Article II of the U.S. Constitution, presidential electors choose the president. Election laws in all states let qualified parties within the state choose the presidential elector candidates for that party; and so it is the state party, with its power over the choice of presidential elector candidates, that determines the party’s choice of President and Vice-President within that state.

State party officers of Americans Elect (in states in which is ballot-qualified) are free to choose presidential elector candidates for the party in their own state, and these electors in turn have the power to tell state elections officials whom they are pledged to. Therefore, in almost all of the states in which Americans Elect is ballot-qualified, whoever can become recognized by the state as the state party officers may, at will, nominate a presidential candidate.

National leaders of Americans Elect may be unhappy if state units choose their own nominees, but history, the Constitution, and election law restrict their power over this matter.

Instances at Which State Units of Major parties Have Chosen Their Own Presidential Nominees

1. In 1836, the Whig Party let each state unit decide who the presidential candidate should be. In Connecticut, Delaware, Illinois, Indiana, Kentucky, Maine, Maryland, Michigan, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, and Vermont, the state Whig Parties said William Henry Harrison was the presidential nominee. In Alabama, Arkansas, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Tennessee, and Virginia, the Whig presidential nominee was Hugh White. In Massachusetts, Daniel Webster was the nominee.

2. In 1860, the Democratic Party could not agree on a presidential nominee, so the party nominated two separate tickets, one headed by Stephen Douglas and one by John Breckinridge. The two slates competed against each other in most states. However, the party put forth fusion presidential ele
ctor tickets in Connecticut, New Jersey, New York, Pennsylvania, and Rhode Island. These fusion slates contained some elector candidates pledged to Douglas and some pledged to Breckinridge. The only state in which a fusion ticket won was New Jersey (and in New Jersey, the election was so close, not all members of the fusion slate were elected). But the decision by some state parties to run fusion slates was a state party decision, not a national decision.

3. In 1912, the Republican Party national convention chose William Howard Taft, but the Republican Parties of South Dakota and California did not follow the lead of the national convention and put Theodore Roosevelt on the ballot as the Republican nominee.

4. In 1948, the Democratic Party national convention nominated Harry Truman for President, but the Democratic Parties of Alabama, Louisiana, Mississippi, and South Carolina nominated Strom Thurmond as their nominee.

5. In 1952, the Mississippi Republican Party did not list any presidential nominee on the ballot. Instead Dwight Eisenhower was placed on the ballot by petition as an independent candidate.

6. In 1960, the Mississippi Democratic Party put two Democratic presidential candidates on the ballot, John Kennedy and a slate of unpledged electors. The unpledged electors won and voted for Harry Byrd in the Electoral College.

7. In 1964, the Alabama Democratic Party would not list Lyndon Johnson, and instead only ran unpledged electors. They did not win the general election so no one knows whom they would have voted for in the Electoral College if they had won.

8. In 1968, the Alabama Democratic Party put George Wallace, not Hubert Humphrey, on the ballot as the Democratic nominee.

In no instance did the national party bring any lawsuit to force a state party to follow the lead of the national convention.

Americans Elect is ballot-qualified in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Hawaii, Kansas, Maine, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Wisconsin, and Wyoming.

However, the deadline for any party to submit presidential elector candidates has already passed in Arizona, so the Arizona state unit cannot nominate anyone for President. The next such deadline is August 7 in Oklahoma.

Also, the line is probably unavailable in California, because the Secretary of State recognizes Michael Arno of San Diego County, California, as State Chair, and he is expected to refuse to allow any nomination. In the other states, generally, there is no state chair on file, and state conventions in the various states should be able to choose their own state chairs.

On July 6, Missouri Governor Jay Nixon signed HB 1236, which improves ballot access for newly-qualifying parties. The bill deletes the requirement that the petition to recognize a new party must include that party’s presidential and vice-presidential candidates, and its candidates for presidential elector.

The old law didn’t make any sense, because the old law didn’t require the petition to carry the names of any of its nominees for any other public office. Yet it took six years of work to get this improvement passed. The same bill had repeatedly been introduced during the recent period, but either it never passed, or it did pass, but was mixed in with other, unrelated election law changes and then that bill would get vetoed.

Ken Bush, a dedicated ballot access activist in Missouri, is responsible for this outcome. Under the new law, parties can begin circulating a petition before they know who they are running.

On July 2, the North Carolina Senate defeated HB 32 by a vote of 33-5. The Democratic Leader in the Senate spoke against the bill and said that it is important to preserve the "two-party system". The bill would have lowered the number of signtures for newly-qualifying parties and independent candidates. North Carolina requires more signatures than any other state except California.

On July 3, California AB 2058 failed to pass the Senate Public Safety Committee. The bill would have made it a crime for a group to pay registration drive workers on a per-registration card basis. The only way parties can obtain party status, or keep party status, in California, is by having registration membership of over 100,000 members. This bill, if enacted, would make it much more expensive for groups to increase their registration.

The bill is not completely dead. The Senate Democratic leader, Darrell Steinberg, wants this bill, so some maneuver will probably be arranged to place the contents of this bill into another bill. The bill failed to pass the Public Safety Committee only because California legislative rules require a bill to receive votes from a majority of all members of a committee, and two Democrats failed to attend the hearing. The vote to pass the bill was 3-1, but the committee has seven members, so it needed four votes. Neither of the two Republicans on the committee support the bill, and the lone "no" vote came from the Republican who was in attendance.

On July 17, the San Francisco Board of Supervisors defeated three proposals to ask voters if they wish to partially repeal Instant Runoff Voting. San Francisco has been using IRV starting in 2004 for almost
all of its city elections.

For several years, the San Francisco Chronicle and the Chamber of Commerce have been working to repeal IRV. They will not give up, but it is not likely that any repeal efforts will make any progress until 2013. San Francisco is the most populous jurisdiction in the United States to use IRV.

Alabama: on July 19, U.S. District Court Judge W. Keith Watkins refused to enjoin the March petition deadline for newly-qualifying parties. Stein v Chapman, m.d., 2:12-cv-42. The plaintiffs are the Constitution, Green and Libertarian Parties. The parties will now seek to win a ruling that the early deadline is unconstitutional, but those proceedings will not occur until 2013.

Arizona: on August 3, a Superior Court in Phoenix will hear Save our Vote v Bennett, cv2012-010717. The issue is whether the initiative for a top-two primary violates the single subject rule.

District of Columbia: on July 19, the judges of the U.S. Court of Appeals, D.C. Circuit, asked the Board of Elections to respond to the Libertarian Party’s request for a rehearing in Libertarian Party v D.C. Board of Elections. This is the case on whether election officials must count write-in votes for declared presidential write-in candidates. It is unusual for judges to ask for a response to a request for a rehearing. The response of the Board of Elections is due August 3.

District of Columbia (2): on July 30, the Libertarian Party filed a lawsuit in U.S. District Court against the D.C. regulation that forbids petitioners from working if they aren’t residents of D.C. Libertarian Party v Nichols, number not assigned yet.

Hawaii: on July 18, the Justice Party filed a lawsuit against the February petition deadline for newly-qualifying parties. Justice Party v Nago, cv-12-403.

Michigan: on July 31, the Libertarian Party filed its brief in the lawsuit Libertarian Party of Michigan v Johnson, the lawsuit over whether Gary Johnson should be allowed on the November ballot. The state says he can’t run in November as a Libertarian because his name was on the February 2012 Republican presidential primary.

Georgia: on July 17, U.S. District Court Judge Richard W. Story dismissed the Constitution Party and Green Party ballot access lawsuit before the state had even answered the Complaint. He said Jenness v Fortson controls the issue in the case, the number of signatures. The case challenges the Georgia petition procedures for minor party presidential candidates, which have not been used successfully in over ten years. Judge Story ignored the U.S. Supreme Court decision Anderson v Celebrezze, which said that states have a diminished interest in keeping presidential candidates off the ballot, relative to candidates for other office. He also ignored the 11^th circuit 1985 decision Bergland v Harris, which repeated that language from Anderson v Celebrezze and said Jenness does not control presidential ballot access. Georgia is in the 11^th circuit. The parties immediately filed a request for reconsideration. The case is Green Party of Georgia v Kemp, n.d., 1:12cv-1822.

Ohio: on July 24, the U.S. Court of Appeals, 6^th circuit, heard arguments in Libertarian Party of Ohio v Husted, the case over whether a February petition deadline for a newly-qualifying party is too early. Because the legislature repealed the February deadline and restored the older deadline of November of the year before the election (which was declared too early by the 6^th circuit in 2006), the judges seem to believe the lawsuit is moot.

Oklahoma: the Libertarian Party lawsuit against the March petition deadline for newly-qualifying parties has been on hold for the last two months because the state’s expert witness has been out of the U.S., but he has returned and the case will resume. Libertarian Party of Oklahoma v Ziriax.

Washington: the U.S. Supreme Court has put the Democratic-Libertarian lawsuit against the top-two system on its conference of September 24. The Court may reveal whether it has taken the case on October 1, or possibly September 28.

Tennessee: on July 25, the 6^th Circuit heard arguments in Green Party of Tennessee v Hargett, over whether the number of signatures for a new party is unconstitutional, and whether the state must give each party an equal chance to obtain the best spot on the ballot, and whether the Green Party and the Constitution Party should remain on the ballot. The two parties had won on all three of these points in the U.S. District Court earlier this year, and the state is trying to get the decision reversed.

Vermont: on June 27, the Justice Party filed a lawsuit in state court over the petition-checking procedures. The party submitted over 1,000 valid signatures by the deadline, but the town clerks did not check the signatures promptly, so the petition is considered too late. Anderson v State of Vermont, Washington County, 480-6-12.

national: on July 13, the D.C. circuit, upheld postal regulations that say that although petitioners may stand on interior post office sidewalks, with a clipboard, and ask passers-by if they wish to sign a petition, if the passer-by agrees to sign, the two must then leave the postal sidewalk and stand somewhere else. Initiative & Referendum Institute v U.S. Postal Service, 10-5337. It is likely that a petition for rehearing will be filed. One of the three judges wrote separately to say, "The Postal Service may conclude, on further reflection, that the present compromise causes more confusion and disruption than it abates. In that case, the Service may decide to do what is sensible and permit the entire signature-gathering encounter – for that would surely not be unreasonable."

Florida: on July 25, U.S. District Court Judge William Zloch refused to issue an order, requiring that all voters be permitted to vote in the Democratic Party primary for one particular county office. Florida has closed primaries. LaCasa v Townsley, s.d., 12-22432.

STATE	Votes Cast	Jill Stein	Roseanne Barr	Kent Mesplay	H. Mikkelson	other
Arizona	5	4	0	1	0	0
Arkansas	6	6	0	0	0	0
California	56	28	22	6	0	0
Colorado	7	5	1	1	0	0
Connecticut	8	8	0	0	0	0
Delaware	4	4	0	0	0	0
Dist. Columbia	4	3	1	0	0	0
Florida	8	5	2	1	0	0
Georgia	2	0	2	0	0	0
Hawaii	4	2	2	0	0	0
Illinois	19	12	4	1	0	2
Indiana	2	2	0	0	0	0
Iowa	4	2	2	0	0	0
Kentucky	2	1	1	0	0	0
Maine	13	7	6	0	0	0
Maryland	6	5	1	0	0	0
Massachusetts	11	9	1	1	0	0
Michigan	16	9	3	2	2	0
Minnesota	7	4	3	0	0	0
Mississippi	4	4	0	0	0	0
New Jersey	5	4	1	0	0	0
New York	16	14	2	0	0	0
North Carolina	4	2.5	1	.5	0	0
Ohio	9	9	0	0	0	0
Oregon	8	4	4	0	0	0
Pennsylvania	7	4	3	0	0	0
Rhode Island	4	3	1	0	0	0
South Carolina	6	5	1	0	0	0
Tennessee	4	2.5	1.5	0	0	0
Texas	12	9	2	0	0	1
Virginia	5	3.5	.5	.5	.5	0
Washington	4	4	0	0	0	0
West Virginia	4	1	1	2	0	0
Wisconsin	7	5	1	1	0	0
Black Caucus	2	0	2	0	0	0
Gay Caucus	2	2	0	0	0	0
Women’s Cau.	2	1	1	0	0	0
TOTAL	289	193.5	72	17	3.5	3

Candidates seeking the 2012 Green Party presidential nomination were Dr. Jill Stein of Massachusetts, Roseanne Barr of California, Kent Mesplay of California, and Harley Mikkelson of Michigan. For Vice-President, Cheri Honkala of Pennsylvania was nominated by acclamation. The convention was July 12-15 in Baltimore.

The seventeen states not listed did not send any delegates to the convention: Alabama, Alaska, Idaho, Kansas, Louisiana, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, Vermont, and Wyoming.

By contrast, in 2008, these thirteen states had no delegates: Alabama, Alaska, Idaho, Kansas, Kentucky, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, South Dakota, Vermont, and Wyoming.

In 2004, these seven states sent no delegates: Alaska, Kentucky, New Hampshire, North Dakota, South Dakota, West Virginia, and Wyoming.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	JUSTICE	Party	Indp.
Ala.	44,829	5,000	*1,000	*500	*700	0	Mar. 13	Sep. 6
Alaska	(reg) *7,686	#3,271	already on	*2,016	*66	0	June 1	Aug. 8
Ariz.	23,041	31,111	already on	already on	0	0	Mar. 1	Sep. 7
Ark.	10,000	#1,000	already on	already on	*1,100	*finished	April 7	*Aug. 6
Calif.	(reg) 103,004	172,859	already on	already on	negotiation	400	unsettled	Aug. 10
Colo.	(reg) 1,000	#pay $500	already on	already on	already on	already on	Jan. 8	Aug. 8
Conn.	no procedure	#7,500	*6,000	*3,500	0	*already on	– – –	Aug. 8
Del.	(reg) 608	6,080	already on	already on	500	0	Aug. 21	July 15
D.C.	no procedure	(est.) #3,900	*1,400	already on	*0	0	– – –	Aug. 8
Florida	0	112,174	already on	already on	already on	0	Sep. 1	July 15
Georgia	50,334	#51,845	already on	in court	in court	0	July 10	August 6
Hawaii	691	#4,536	already on	already on	0	*in court	Feb. 23	Sep. 7
Idaho	13,102	1,000	already on	0	already on	0	Aug. 30	Aug. 24
Illinois	no procedure	#25,000	*already on	*already on	*too late	*too late	– – –	June 25
Indiana	no procedure	#34,195	already on	too late	too late < /font>	too late	– – –	July 2
Iowa	no procedure	#1,500	finished	*600	*250	0	– – –	Aug. 17
Kansas	16,776	5,000	already on	*300	0	0	June 1	Aug. 6
Ky.	no procedure	#5,000	*1,700	*500	*600	0	– – –	Sep. 4
La.	(reg) 1,000	#pay $500	already on	already on	0	0	May 17	Sep. 4
Maine	28,639	#4,000	*finished	already on	0	0	Dec 8, 11	Aug. 8
Md.	10,000	34,713	*lack 1,000	*lack 1,000	1,200	0	Aug. 6	Aug. 6
Mass.	(est) (reg) 40,000	#10,000	*finished	already on	0	0	Nov. 1, 11	July 31
Mich.	32,261	30,000	in court	already on	already on	probably on	July 19	July 19
Minn.	105,352	#2,000	*800	*900	*300	0	May 1	Aug. 21
Miss.	be organized	1,000	already on	already on	already on	already on	Jan. 6	Sep. 7
Mo.	10,000	10,000	already on	0	already on	0	July 30	July 30
Mont.	5,000	#5,000	already on	0	0	0	Mar. 15	Aug. 15
Nebr.	4,880	2,500	already on	0	0	0	Aug. 1	Aug. 28
Nev.	7,013	7,013	already on	0	already on	0	April 13	July 6
N. Hamp.	13,698	#3,000	*20,000	*1,200	*finished	0	Aug. 8	Aug. 8
N.J.	no procedure	#800	*finished	*finished	*finished	*finished	– – –	July 30
N. M.	3,009	18,053	already on	already on	already on	already on	Apr. 3	June 27
N.Y.	no procedure	#15,000	*10,000	already on	*5,000	*0	– – –	Aug. 21
No. Car.	85,379	85,379	already on	too late	too late	too late	May 16	June 14
No. Dak.	7,000	#4,000	already on	0	already on	0	Apr. 13	Sep. 7
Ohio	show support	5,000	already on	already on	already on	0	unsettled	Aug. 8
Okla.	51,739	43,890	in court	in court	0	0	March 1	July 15
Oregon	21,804	18,279	already on	*already on	already on	already on	Aug. 28	Aug. 28
Penn.	no procedure	#20,601	*45,000	*23,000	*34,000	300	– – –	Aug. 1
R.I.	17,115	#1,000	*500	*400	*200	0	June 1	Sep. 7
So. Car.	10,000	10,000	already on	already on	already on	0	May 6	July 15
So. Dak.	7,928	3,171	already on	0	already on	0	Mar. 27	Aug. 7
Tenn.	40,042	275	*fiinished	already on	already on	0	Aug. 8	Aug. 16
Texas	49,729	80,778	already on	already on	too late	too late	June 29	June 29
Utah	2,000	#1,000	already on	already on	already on	already on	Feb. 15	Aug. 15
Vermont	be organized	#1,000	already on	too late	too late	*in court	Jan. 1	Jun 14
Virginia	no procedure	#10,000	*11,000	*5,000	*finished	0	– – –	Aug. 24
Wash.	no procedure	#1,000	*finished	*finished	*finished	*finished	– – –	July 28
West Va.	no procedure	#7,135	*7,000	already on	100	0	– – –	Aug. 1
Wisc.	10,000	#2,000	*1,000	*1,300	already on	0	April 1	Aug. 7
Wyo.	3,740	3,740	already on	0	already on	0	June 1	Aug. 28
TOTAL STATES ON			30*	23*	17	6*	“	`

#partisan label permitted (other than "independent").
"CONSTI" = Constitution Party.
*change since July 1 issue.

The Party for Socialism and Liberation is on in Colorado, New Jersey, Utah, Vermont, and Washington. Petitioning is finished in Arkansas, Iowa, and is proceeding in Minnesota, New York, Rhode Island, and Wisconsin.

The Socialist Party is on in Ohio, is finished in New Jersey, and is petitioning in Minnesota.

The Socialist Workers Party is on in Colorado, Florida, and New Jersey, is finished in Washington, and is working in Iowa and Minnesota.

The Socialist Equality Party is petitioning in Wisconsin. It is running Jerry White for President, and Phyllis Scherrer for Vice-President.

American Third Position is on in Colorado, is finished in New Jersey and Tennessee, and has 800 in Arkansas and 150 in Mississippi.

The Reform Party is almost finished in Arkansas, and is on in Florida, Kansas, Louisiana, Mississippi.

The Grassroots Party is working in Minnesota. It is running Jim Carlson for President and George McMahon for Vice-President.

See page four for the roll-call vote for President at th
e Green Party convention in Baltimore, July 13-15. Jill Stein expects to receive primary season matching funds, the first time a Green Party presidential candidate has achieved this since 2000, when Ralph Nader qualified. She is seeking the nomination of several other parties as well, including the Progressive Party of Vermont.

On July 5, the Federal Election Commission released $130,059 in additional primary season matching funds to Gary Johnson. He had already received $100,000 in May.

The Justice Party Vice-Presidential nominee will be Luis Rodriguez of San Fernando, California. He has written fifteen books and has been active trying to help trouble youth.

The Kansas Reform Party is ballot-qualified. In June it nominated Chuck Baldwin for President and Joseph Martin for Vice-President. It is not clear if these are just temporary nominees. Baldwin was the Constitution Party presidential nominee in 2008, but he has not said that he wants to run for office in 2012. The Kansas Reform Party had nominated Baldwin for President in 2008.

The Coalition for Free & Open Elections held its annual board meeting in Baltimore on July 15. COFOE has existed since 1985, and is a coalition of most of the nation’s nationally-organized parties, plus groups that care about the legal problems of minor parties and independent candidates. The Board voted to amend its Bylaws to say that political parties that are represented in COFOE are expected not to challenge the ballot access petitions of other minor parties and independent candidates, especially for President. This step was taken because earlier this year, an officer of the Green Party of Illinois challenged the ballot access petitions of the Justice Party, the Constitution Party, and the Socialist Party, thus keeping them off the Illinois ballot for President this year.

COFOE also has written a letter to the national leaders of Americans Elect, asking Americans Elect to accept the notion that some of the ballot-qualified state units of Americans Elect should be unhampered if they wish to nominate candidates for presidential elector and, in this way, help existing minor parties that have presidential candidates to be on the ballot in more states.

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