BALLOT ACCESS IMPROVEMENTS ADVANCE IN FIVE STATES

During the last month, ballot access improvement bills have been introduced, or have advanced, in five states:

California (1): on April 23, the Assembly Elections Committee unanimously passed AB 1419, which moves the deadline for a group to become a qualified party from January of an election year, to July of an election year. However, in its first year on the ballot, a group that qualifies in July can only participate in the presidential election, and not any other election. After the first year, it is qualified for all offices.

If this bill is signed into law, it will be the first time since 1976 that California has eased the law on how a party gets on the ballot. In 1976, the legislature passed a bill permitting voters to register via a postcard form, instead of having to appear before a Deputy Registrar of Voters. That indirectly made it far easier for a party to get on the ballot, because the usual method that a party gets on the ballot in California is to persuade a certain number of voters to become registered members of that party. A registration drive is far easier with the postcard registration form.

The legislature had created the January deadline in 1953; previously the deadline had been in March. The deadline created in 1953 was so early, it forced Ross Perot to launch his Reform Party in September 1995, instead of waiting until early in 1996. Also, the early deadline prevented the Natural Law Party from qualifying in California in 1992, because the party didn’t even exist until April 1992, past the deadline.

California (2): on April 16, the Senate Judiciary Committee passed SB 213, which repeals all residency requirements for petition circulators. It had already passed the Senate Elections Committee.

Montana: on April 24, the legislature passed HB 120. It makes two ballot access improvements. It moves the independent candidate petition deadline from March to May. Also it lets an independent candidate for President or Vice-President qualify for the ballot, even if he or she had been closely associated with a political party during the preceding year.

Nebraska: on April 24, LB 349 was placed in the legislature’s General File, which means that is is expected to receive a Senate vote by May 3. It repeals the law that says if a voter votes in the presidential primary, he or she can’t sign an independent presidential candidate’s petition. If this bill is signed into law, Texas will be the only state that still bars voters from signing any type of petition on the grounds that the voter had voted in a primary.

North Carolina: on April 10, several legislators from both major parties introduced HB 794, which lowers the number of signatures to get a newly-qualifying party, or a statewide independent candidate, on the ballot. Existing law requires 2% of the last gubernatorial vote, and the bill lowers this to one-fourth of 1% of the last gubernatorial vote. The bill also moves the petition deadline from May to July. Also, it repeals the law that says no one may have his or her write-ins counted without filing a petition of 500 signatures. The bill is co-sponsored by the Chair of the House Elections Committee, and supported by the Speaker of the House.

Vermont: on April 11, the Senate unanimously passed S86, an omnibus election law bill. Among other things, it moves the independent candidate petition deadline from June to August. Currently Vermont has the second earliest independent presidential petition deadline.

On April 26, Ralph Nader asked the U.S. Supreme Court to hear Nader v Serody, 12-1294. The issue is whether the people who challenged Nader’s 2004 petition in Pennsylvania should be allowed to seize $81,102 from Nader’s bank account in the District of Columbia.

Even if one assumes that it is legitimate for Pennsylvania to permit petition challengers to receive such massive sums when a candidate submits a petition that lacks enough valid signatures, Nader argues that in this particular instance, the money should not be transferred. This is because, after Nader was ordered to pay the money, it came to light that the challengers had broken Pennsylvania law by using state employees on state time for their petition challenge. Some Pennsylvania officials were sent to prison. Yet, the Pennsylvania courts never allowed Nader to re-open the matter to take cognizance of the new revelations.

Nader then asked the D.C. Courts not to allow the transfer, but they refused to do so.

On April 15, the U.S. Supreme Court refused to hear Initiative & Referendum Institute v U.S. Postal Service, 12-722. The U.S. Court of Appeals, D.C. Circuit, had upheld the postal regulation that permits petitioners to stand on post office interior sidewalks, but that if a passer-by wants to sign, the petitioner and passer-by then must leave the sidewalk. A concurrence in the D.C. Circuit said the policy makes no sense and causes more disruption than it prevents.

On March 29, U.S. District Court Judge Philip A. Brimmer struck down a Colorado law that makes it illegal for initiative circulators to be paid on a per-signature basis. Independence Institute v Gessler, 1:10cv-609. The decision is 47 pages and relies on evidence from an extensive trial. The decision finds that the ban does not make fraud less likely, and that it significantly raises the expense of putting an initiative on the ballot. The decision also says that professional petitioners are "those who, through experience and self-selection, are the most efficient and effective circulators."

Arizona: on April 15, the Libertarian and Green Parties asked a U.S. District Court to reconsider its decision upholding the state registration form, which only provides a checkbox for voters who want to register as Democrats or Republicans, even though the state has five parties that hold primaries.

California: on April 11, the 9^th circuit refused to rehear Libertarian Party of Los Angeles County v Bowen, 11-55316. The original decision said that the party has standing to challenge the residency requirement for petitioners. The state then tried to persuade the entire 9^th circuit to rehear that.

Georgia: on April 22, the Green and Constitution Parties filed an appeal with the 11^th circuit, in the case that challenges the number of signatures required in presidential elections.

Hawaii: on April 17, the Democratic Party decided to file a lawsuit, to obtain a closed primary for itself.

Pennsylvania: on April 13, the Constitution, Green, and Libertarian Parties filed a notice of appeal with the Third Circuit in the case over large court costs when a petition is held to lack enough valid signatures.

Vermont: on March 29, the State Supreme Court upheld the June petition deadline for independent candidates. Trudell v State of Vermont, 2013-18. The decision admits that having the deadline in August would not pose any election-administration problems. But it says since many independent candidates managed to qualify in 2010 and 2012 (the two election years in which the June petition deadline was in effect), the burden is not severe. Two of the five justices wrote a concurrence which is almost a dissent. It says, "That the earlier deadline accomplishes this reduction in choice with a nearly imperceptible benefit is added cause for concern." On April 13, the plaintiff asked for reconsideration.

On April 19, the Montana legislature passed SB 408, which says voters will decide in November 2014 whether to establish a top-two primary system. All the Democrats in the legislature, and a few Republicans, voted against the bill. Because the bill only sets up a popular vote, and does not enact any law, the Governor had no ability to veto the bill.

The Republican legislators who introduced the bill frankly acknowledge that their motivation is to keep Libertarian candidates off future general election ballots. The same legislators, for the most part, had voted against another bill to establish a top-two system on February 21, but the leadership of the Republican Party then did whatever it took to change the minds of those legislators. Republicans believe that if Libertarians had not run for Governor and U.S. Senator in 2012, the Republicans would have won both those elections. There is no evidence to support this belief. Furthermore, the legislature is free to establish ranked-choice voting, so that if Republican beliefs about Libertarian voters are correct, Republicans would win future elections without injuring voter choice.

California: three Constitutional amendments to change certain aspects of the top-two primary system have either been defeated, or been set aside, at least for the remainder of this year. Two of them would have said that state candidates can be elected in June, and need not run in November, if they poll a certain share of the June vote. Another would have made it more difficult for write-in candidates to qualify for the November ballot even if they do come in second. A second such bill, ACA 9, has a hearing on May 7.

California (2): on April 9, the Assembly Elections Committee passed AB 1038, to make it illegal for registration drive workers to be paid on the basis of how many registrations from any particular party they obtain. Governor Jerry Brown vetoed similar bills in both 2011 and 2012.

Connecticut: on April 5, the Joint Government Administration and Election Law Committee passed SB 1146, which says that parties can’t nominate non-members. The intent of the bill is to ban fusion, but the bill is worded badly. In its present form, it would probably be held unconstitutional, because in 1986 the U.S. Supreme Court said parties have a First Amendment freedom of association right to nominate non-members. The vote in the Committee was 11-3. However, the three Senators on the Committee voted against the bill 2-1, so it may have a difficult time passing the Senate.

New Hampshire: on April 17, the Senate Election Law Committee passed HB 521, a bill to study the election laws. However, the committee amended the bill to provide that the study will not include the subject of ballot access. The sponsor of the bill said ballot access is too complicated and if that were included, it would delay the study.

Oregon: on April 18, the House passed HB 3077, the National Popular Vote bill. The vote was 38-21. The "yes" votes included seven Republicans.

Tennessee: on April 17, the Senate approved SR 37 unanimously. As a result, later this year the Senate will create a committee to study ballot access for minor parties. The committee will include several Senators and also a representative of the Constitution, Green, and Libertarian Parties.

Washington: on April 17, Governor Jay Inslee vetoed part of SB 5518 which would have made presidential ballot access more difficult. Current law requires 1,000 signatures to place a presidential candidate on the November ballot, and the signatures must be gathered at meetings around the state that have at least 100 attendees.

The bill would have required all 1,000 signatures to be obtained in the same location. The bill had been introduced at the request of the Secretary of State, who did not intend to make ballot access more difficult. The Freedom Socialist Party noticed that detail of the bill, and asked the Secretary of State to ask the Governor to veto that part of the bill.

On April 25, an Indiana jury convicted two individuals of forging signatures on the two 2008 Democratic presidential primary petitions in Indiana. One petition was for Hillary Clinton, and one was for Barack Obama. They are the only two petitions submitted to place a presidential candidate on the 2008 Indiana Democratic presidential primary. If the fraud had been uncovered in 2008, Indiana Democrats would have been left with a ballot with no names, and write-ins are banned in Indiana primaries.

Indiana has the nation’s most difficult mandatory petition requirements for major party presidential primaries. The state requires 4,500 signatures, and there must be at least 500 signatures from each U.S. House district in the state.

Without the fraudulent signatures, neither Clinton nor Obama would have had enough valid signatures in the Second District, so their statewide petitions would have failed.

The fraud was committee by four individuals, one of whom was a county Democratic Party chair. These individuals were responsible for helping both Clinton and Obama get on the ballot. Two of them pleaded guilty and their testimony was used to convict the other two.

California county official election returns reveal how many blank votes were cast in any particular race. This data shows that in November 2012, a large percentage of voters left their ballot blank when they saw a race with only two candidates, both from the same party. These races were common in California in 2012, due to the top-two primary system.

In U.S. House and Assembly races, 16.01% of voters cast a blank ballot when the only two candidates were from the same party. By contrast, when there was a race between one Democrat and one Republican, only 7.81% of the voters cast a blank.

In races between an independent and a major party member, 9.39% of the voters cast a blank ballot. In the two races with only one candidate on the ballot, 25.01% cast blanks.

The contested race with the most blanks was the U.S. House race, 31^st district, where two Republicans and no one else were on the ballot. In this race, 23.14% of the voters cast a blank. The district is predominantly Democratic. President Obama won 57.24% of the vote in that district, and Democratic U.S. Senator Dianne Feinstein received 58.67%. Clearly, the voters of this district would have chosen a Democratic member of the U.S. House if they had been free to do so. But the top-two system in this instance disenfranchised a majority of voters in the district.

On April 25, the Federal Election Commission voted unanimously to continue to let the Socialist Workers Party avoid reporting its campaign contributions and expenditures. The exemption lasts until December 31, 2016. The result was somewhat surprising. The last time the FEC extended the exemption, the vote was not unanimous.

The bulk of the evidence submitted this time by the party related to party members or supporters being fired from their jobs. There were also instances of harassment by local law enforcement officers.

Law and Election Politics, 2^nd edition, edited by Matthew J. Streb, 306 pages, paperback, 2013, Routledge.

This book consists of chapters on various aspects of election law, from the viewpoint of political scientists. The book’s primary audience will probably be college students enrolled in Political Science courses. The Preface explains that most assigned readings in Political Science contain almost no information about constitutional election law, which is frustrating, because so many aspects of U.S. election rules are not only interpreted, but determined, by courts.

The first edition was published in 2004. Each edition contains eleven or twelve chapters, and each edition has a chapter on election law problems of minor parties. That chapter, for both editions, is by Marjorie R. Hershey of Indiana University.

There are so many aspects of election law, it is interesting to see which issues have chapters in each of the two editions, and which election law issues were left on the cutting-room floor. Both editions include (1) political party freedom of association, which includes law governing parties and their nominating processes; (2) campaign finance law; (3) the internet as it relates to campaigning; (4) redistricting; (5) judicial elections. Chapters which appeared in the first edition but not the second include one on the federal Voting Rights Act and one on the results of deregulation of broadcast media for campaigning.

Topics included in the new edition for the first time are: (1) public financing of campaigns; (2) vote-counting technology; (3) voter ID laws; (4) initiatives; (5) early voting. Both versions discuss Bush v Gore, but the first version put that into a chapter on Equal Protection, whereas the new edition folds it into a chapter called "Recounts".

Election law legal issues that didn’t appear in either version include (1) electoral college issues; (2) ex-felon voting; (3) voting rights for U.S. citizens who live in the District of Columbia and overseas possessions; (4) candidate eligibility to hold the office and Hatch Act restrictions on candidacy; (5) ballot access problems for major party candidates and candidates in non-partisan elections (6) issues concerning alternative voting systems.

The chapters are written for readers who are not already highly familiar with the field. Most of the authors are not afraid to express their opinions, but of course they present facts to back up those opinions. Existence of this book is a cheery reminder that political scientists (or at least the political scientists who wrote chapters for this book) are concerned about the extent to which the United States does not live up to its reputation as a country that has free and fair elections.

The Perot Legacy: A New Political Path, 2^nd edition, by Pat Benjamin, 189 pages, paperback, 2013, Morgan James Publishing.

The author was active in the Perot campaign of 1992, in United We Stand America starting in 1993, and in 1997 she became the first elected vice-chairman of the Reform Party. The book tells the history of these Perot organizations. Wisely, it is very brief in its account of the 1992-1995 period, because that story has already been told in other books. For example, Citizen Perot, His Life and Times, by Gerald Posner, gives a thorough account through January 1996, when that book was published.

The Perot Legacy’s most useful contribution is that it provides a history of the Reform Party for the years 1996 through 2001. This history is contained in chapters eight through fourteen.

Chapter Eight describes the Reform Party’s 1996 process for choosing a presidential nominee, which was a mail ballot in which the two names on the ballot were former Colorado Governor Richard Lamm, and Ross Perot. Chapter Nine describes the 1996 general election campaign, especially the struggle to include Perot in the debates sponsored by the Commission on Presidential Debates. Despite having massive protests outside the debate venues, Perot was not admitted into those debates.

Chapter Ten covers the events of 1997, which included the party’s organizing national convention. Chapter Eleven covers the major event of 1998, the party’s winning the Minnesota gubernatorial election. That was the first time a nationally-organized minor party had elected a Governor since 1916.

Chapter Twelve covers the events of 1999, when Jack Gargan was elected Chair of the Reform Party, and Governor Ventura gave a Playboy interview that alienated many other leaders of the Reform Party, including Ross Perot. Chapters Thirteen, Fourteen and Fifteen cover 2000, the year Gargan lost his position and Pat Buchanan won the party’s presidential nomination over the opposition of Perot.

The account of Buchanan’s nomination victory is especially useful. A biography of Pat Buchanan published last year, The Crusader: The Life and Tumultous Times of Pat Buchanan, by Timothy Stanley, told that story. But Stanley only recorded Pat Buchanan’s version of the story, so Benjamin’s book provides a badly-needed balance.

Chapters Sixteen and Seventeen, plus the Epilogue, describe political activities of Perot supporters since 2000, and also "what went wrong."

Benjamin is careful to note which meetings she participated in, and which she didn’t, in her book, so that the reader knows which parts of the book are eye-witness accounts and which are not.

Some political activists in the U.S. have decided that the very concept of a political party is harmful to society, and they frequently point out that the U.S. Constitution does not mention political parties.

However, thirty-eight state constitutions do mention political parties. The chart below shows where in each of these constitutions parties are mentioned, and what that provision is. In a few instances, constitutions mention parties more than once, but the chart only has room to includes one of these provisions.

Generally, state constitutions mention parties for one of these reasons: (1) to provide a partisan balance on various official bodies that regulate elections (these provisions always only apply to the two largest parties); (2) to provide that parties should jointly nominate for Governor and Lieutenant Governor; (3) to restrict state judges from partisan activity; (4) to provide that when a new legislator is appointed to fill a vacancy, the new legislator’s party affiliation must match that of the legislator being replaced.

States with no entries above do not mention Political Parties in their Constitutions.

STATE	CITE	WHAT EACH STATE CONSTITUTION SAYS ABOUT PARTIES
Alabama	Sec. 183	Sets out requirements for a voter to participate in a party nomination process
Alaska	Art 4, sec. 14	Judges may not hold office in a political party
Arizona	Art 7, sec. 10	Independent voters may vote in any party’s primary
Arkansas	Amd 51, sec 6	Voter registration forms may ask voter to choose a party
California	Art 2, sec. 5c	Legislature shall provide for elections to elect party officers
Colorado	Art 5, sec. 2	Appointed state legislator must be member of same party as predecessor
Conn.	Art 4, sec. 3	Party nominees for Governor and Lieutenant Governor must run as a team
Delaware	Art 2, sec. 2A	Redistricting commission to include chair of two parties that placed 1st & 2nd for Governor
Florida	Art 6, sec. 1	Ballot access for all parties and candidates must be equal
Georgia	Art 6, sec. 7	Judicial elections must be non-partisan
Hawaii	Art 5, sec. 2	Party nominees for Governor and Lieutenant Governor must run as a team
Idaho	Art 6, sec. 7	Judicial elections must be non-partisan
Illinois	Art. 2, sec. 3	No single party may have more than half the members on redistricting commission
Indiana	Art. 7, sec. 10	Judicial vacancies must be filled without regard to party affiliation
Iowa	Art. 5, sec. 16	Judicial nominating commissioners must be chosen without regard to party affiliation
Kansas	Art. 3, sec. 8	State Supreme Court Justices can’t contribute to political parties
Kentucky	Sec. 123	State court judges may not hold political party office
Louisiana	Art. 11, sec. 4	No public funds may be appropriated to a political organization or a candidate
Maine	Art. 4-3, sec. 1A	Two parties with most legislators may appoint to Legis. Apportionment Commission
Maryland	Art. 3, sec. 13	Appointed state legislator must be member of same party as predecessor
Mass.	Amendment 86	Party nominees for Governor and Lieutenant Governor must run as a team
Michigan	Art. 2, sec. 7	Party nominees for Governor and Lieutenant Governor must run as a team
Minnesota	– – –	– –
Miss.	– – –	– –
Missouri	Art. 3, sec. 2	Two parties that polled most for Governor may appoint to Legis. Redistrict Commission
Montana	Art. 5, sec. 14	Majority and minority leaders of each house may appoint to Redistricting Commission
Nebraska	– – –	– –
Nevada	Art. 4, sec. 12	Appointed state legislator must be member of same party as predecessor
N.Hamp.	– – –	– –
N Jersey	Art. 2, sec. 2	Majority and minority leaders of each house may appoint to Redistricting Commission
N Mexico	Art. 6, sec. 35	Judicial nom, commissions must contain equal number of members of 2 largest parties
New York	Art. 2, sec. 8	Two largest parties must have equal number of members on Board of Elections
No. Car.	– – –	– –
No. Dak.	– – –	– –
Ohio	Art. 5, sec. 7	Presidential primary shall choose national convention delegates for parties
Okla.	Art. 3, sec. 3	Legislature may provide for primaries for political party nominations
Oregon	Art. 2, sec. 16	Legislature may provide for ranked-choice voting and may require it for party primaries
Pennsyl.	Art. 5, sec. 14	Judicial Qualifications Commission can’t have more than four members of same party
Rhode Is.	– – –	– –
So. Car.	– – –	– –
So. Dak.	– – –	– –
Tennessee	– – –	– –
Texas	Art. 3, sec. 24(a)	Texas Elections Commission must contain members of different political parties
Utah	Art. 7, sec. 2	Party nominees for Governor and Lieutenant Governor must run as a team
Vermont	– – –	– –
Virginia	Art. 2, sec. 3	Ballots shall identify the political party of candidates
Wash.	Art. 2, sec. 15	Appointed state legislator must be member of same party as predecessor
W. Va.	Art. 6, sec. 33	Legislative Compensation Comm. must have no more than 4 members from any party
Wisconsin	– – –	– –
Wyoming	Art. 5, sec. 4(d)	Judicial nominating commission members (except chair) cannot hold party office

On April 24, Bill Bolling, Virginia’s Lieutenant Governor, said in a press interview that he now regrets that he bowed out as an independent candidate for Governor on March 12. Since then, both major party nominees have suffered public relations blows.

Democrat Terry McAuliffe has been hurt because his company, GreenTech Automotive, a manufacturer of electric cars, has fallen far short of production goals. He has also been attacked for failing to release his full tax returns. He did release a summary of his returns 2009-2011, which show an income for those years of $16,500,000. While he was Democratic National Chair in 2004, he planned the Democratic Party campaign to challenge Ralph Nader’s ballot access nationwide.

Republican Ken Cuccinelli has been on the defensive, because he failed to disclose his stock holdings in Star Scientific, a dietary supplement maker which is suing the state. Cuccinelli is the current Attorney General.

The Libertarian Party has nominated Rob Sarvis for Governor. He needs 10,000 signatures by June 11. Sarvis, age 36, has math degrees from Harvard and Cambridge, a law degree from NYU, and a masters degree in economics from George Mason University. He founded the NYU Journal of Law & Liberty.

Pennsylvania recently released write-in tallies from the 2012 presidential election: Virgil Goode received 383, and Tom Hoefling received 28. The state did not tally the write-ins for any other presidential candidates. The choice of these two is arbitrary; probably Roseanne Barr and Rocky Anderson received more write-ins than Hoefling, but the state didn’t include them. Pennsylvania does not have a procedure for a candidate to file a write-in declaration of candidacy in order to obtain a tally.

On April 2, these Wisconsin Green Party members were elected: Ledell Zellers to the Madison Council, Dean Loumos to the Madison School Board, and Rae Vogeler to the School Board of the town of Oregon.

On April 9, these Illinois Greens won: Jessica Bradshaw for Carbondale Council; Ken Williams for Thornton Township High School Board; Sandy Lezon for Warrenville Library Board; Bruce Samuels for Oak Park Library Board; Robert Braam for Manhattan Library Board. Libertarian Party member Chris Jenner was elected to the McHenry County College Board.

On April 9, Illinois held a special election for U.S. House, 2^nd district. The unofficial results: Democrat Robin Kelly 70.78%; Republican Paul McKinley 22.06%; Green Party nominee LeAlan Jones 1.83%; and these independent candidates: Elizabeth Pahlke 3.02%, Marcus Lewis 1.64%, Curtiss Lleng Bey .66%.

On April 20, Howard Phillips died at the age of 72. He had founded the Constitution Party in 1990 and had been its presidential nominee three times. Earlier, he had been a high-ranking official of the federal government while Richard Nixon was President.

On March 28, former Congressman Bob Barr announced that he will run for Congress in 2014 in Georgia. He had been the Libertarian presidential nominee in 2008. Georgia doesn’t have registration by party, so it is not possible to give exact dates for when Barr switched from being a Republican to being a Libertarian, and back again.

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