CALIFORNIA PASSES PROPOSITION 14, REMOVES MINOR PARTIES FROM THE GENERAL ELECTION CAMPAIGN

On June 8, California voters passed Proposition 14, by 53.7% to 46.3%. It provides that the only two candidates who can be on the November ballot for Congress and partisan state office are the two candidates who poll the most votes in June. The implementing language also says that write-in votes in November for Congress and state office can no longer be counted.

Proposition 14 was put on the ballot by the state legislature in February, 2009. Most legislators did not favor that system, but they voted for it in return for State Senator Abel Maldonado’s vote for the budget.

All of the state’s large newspapers, except the Orange County Register, endorsed Proposition 14. Some newspapers not only endorsed the measure, they printed untrue statements about the measure.

The San Jose Mercury News said in an editorial that the measure would not injure minor party candidates, and cited the example of Green Party legislator Audie Bock, who was elected in a special election in 1999 under blanket primary rules. However, the editorial was mistaken. Bock only polled 8% of the vote in the first round, placing third, and she would have been eliminated under Proposition 14 rules. The Mercury News never acknowledged its error.

The Monterey County Herald said that its decision to endorse Proposition 14 was based on the fact that the League of Women Voters had endorsed it. However, the League did not endorse the measure. The newspaper never ran a correction.

The Sacramento Bee editorial in support of the measure said that minor parties would sometimes qualify for the November ballot, suggesting that Greens would place first or second within San Francisco.

However, the Bee editorial board had already been given evidence that this assertion is untrue. This evidence consisted of California blanket primary election returns, showing that the Green Party’s strongest candidates in the blanket primary years never placed first or second within San Francisco. California used the blanket primary in 1998 and 2000, even for President. Neither Dan Hamburg (the Green Party candidate for Governor in 1998 and a former Congressman), nor Ralph Nader in 2000, nor U.S. Senate candidate Medea Benjamin in 2000, nor Peter Camejo in 2003, placed first or second within San Francisco.

But the behavior of the Los Angeles Times was even worse. The newspaper ran one op-ed critical of Proposition 14 in February 2009, an entire 16 months before the election. It then used that as an excuse to refuse to run any later print op-eds against the measure. But in the months before the election, it ran two editorials in support of the measure, and an op-ed in support of the measure, and its news stories about the measure were slanted in favor of the measure.

The campaign against Proposition 14 was outspent 20:1. The campaign for the measure raised $4,500,000, and spent a great deal on radio ads. The campaign against the measure raised $216,000. The Democratic and Republican Parties raised money and arranged for internet ads against the measure, and also arranged for some slate cards to recommend a "No" vote. But the only TV and radio ads against the measure were created and paid for by the Libertarian, Green, and Peace & Freedom Parties. Free & Equal created the leading web page against Proposition 14, and it, as well as Californians for Electoral Reform, organized press conferences and protests against the measure.

The top-two system was tried in Washington state for the first time in 2008, and resulted in a Democratic-Republican monopoly on the ballot for all congressional and all statewide state offices. In Louisiana, which has used top-two for state office since 1975, no minor party candidate ever qualified for the second round. Louisiana also used top-two for Congressional elections 1978-2006, and again, no minor party candidate ever qualified for the second round. However, because the Louisiana system for Congress held its first round in November for the years 1998-2006, the Louisiana system did not have the effect of keeping minor party congressional candidates out of the November election after 1996.

Proposition 14 lost among the voters who voted on November 8. But, approximately half the voters voted by mail during the period May 10-June 7, and those voters overwhelmingly approved Proposition 14. The mail vote count was released at 8 p.m. on election day, and it showed Proposition 14 passing by 60%. Therefore, it appears that voters who voted at the polls defeated it 48%-52%.

The reason for this
disparity is that the campaign against Proposition 14 did not swing into full gear until two weeks before election day. Voters who voted early did not hear any message against Proposition14.

The California ballot said, "Prop. 14. ELECTIONS. Increases Right to Participate in Primary Elections." Then, in smaller type, "Changes the primary process for congressional, statewide, and legislative races. Allows all voters to choose any candidate regardless of the candidate’s or voter’s political party preference. Ensures that the two candidates receiving the greatest number of votes will appear on the general election ballot regardless of party preference."

This ballot description is in contrast to the ballot language in November 2008 in Oregon, when Measure 65 also asked voters to approve a top-two system. The Oregon ballot said, "65. Changes general election nomination processes for major/minor party, independent candidates for most partisan offices. Then, in smaller print, "Result of ‘Yes’ Vote: ‘Yes’ Vote general election nomination processes for most partisan offices; all candidates run in single primary; top two primary candidates compete in general election. Result of ‘No’ Vote: ‘No’ vote retains the current party primary election system, retains procedures for the nomination of minor political party and independent candidates to the general election."

The selling point for Proposition 14 was that the state legislature has been late with the budget, every year, for the past nine years. Proponents insisted that Proposition 14 will change the type of people elected to the legislature. Proponents said the existing legislature is filled with ideologues of the far right and far left who can’t get along with each and can’t compromise. This was a winning message, and the political science research suggesting that there is no connection between openness of a primary, and whether the legislature is polarized, was largely unpublicized.

The reason California’s budget is always late is that ever since 1926, the state Constitution has said the budget bill needs two-thirds approval in the legislature. Only two other states have a similar measure. California voters will vote in November 2, 2010, on whether to repeal the two-thirds budget vote requirement.

Lawsuits against Proposition 14 will be filed, but because the constitutionality of the top-two idea will undergo a trial in U.S. District Court in Washington state starting November 15, 2010, lawsuits against California’s new law will probably not be filed until 2011. There may be limited lawsuits filed this year against some particular problems with Proposition 14 that are not present in the Washington state top-two system.

In a historic decision, on June 22 the Utah Supreme Court unanimously ruled that electronic signatures on petitions are valid. Anderson v Bell, 20100237. The plaintiff was an independent candidate for Governor, Farley Anderson. He only needed 1,000 valid signatures, and he deliberately submitted a number of old-fashioned, paper signatures, that was not quite enough to meet the requirement. He also submitted electronic signatures to reach the required number.

The Utah County Auditors had accepted his electronic signatures, but the State Elections Office had rejected them, leading to the lawsuit.

The electronic signatures were gathered on a web page. Signers had to sign under penalty of perjury and they had to enter the last four digits of their Utah drivers license or state ID card.

A somewhat similar lawsuit is pending in a California State Court of Appeals. All fifty states have in the last few years passed the Uniform Electronic Transaction Act (UETA), which sets forth legal guidelines for electronic signatures in general.

On June 11, South Carolina Governor Mark Sanford, a Republican, vetoed HB 3746, which made ballot access more difficult for independent candidates. The House tried to override his veto but a vote of 60-43, but the veto was sustained because a two-thirds vote is needed to override vetoes.

The bill would have required independent candidates to file a declaration of candidacy before the June primary, even though independent petitions aren’t due until July 15. It would also have required petitions to be notarized, and would have prohibited newly-registered voters from signing.

On June 11, a U.S. District Court in Colorado issued an injunction against a state law that makes it illegal to pay initiative circulators per-signature. Independence Institute v Buescher, 10-cv-00609. The injunction was issued after a trial, at which a great deal of evidence was presented.

A key witness was Professor Daniel Smith of the University of Florida, an expert on ballot questions who has examined actual petitions looking for evidence of forged signatures, and has conducted other types of research on petitioning as well. He testified, "I honestly don’t think that the pay per signature model necessarily induces fraud." Also, the state’s expert witness, Ted Blaszak, testified that fraud is seldom committed by professional petitioners. Evidence also showed that banning paying circulators per signature increases the cost of qualifying ballot measures.

On June 23, U.S. District Court Judge Marcia Krieger upheld the one-year prior disaffliation law for independent candidates (for office other than President), even though this year the legislature eased the restriction. The Governor signed the bill on May 27. The only reason the law was still in court is that the liberalization doesn’t take effect until 2011. Riddle v Daley, 09-cv-02680. As a result, independent state legislator Kathleen Curry, who switched from being a Democrat to an independent late last year, must run as a write-in candidate for re-election in November.

The decision says that the law is needed because otherwise, voters would be "confused" and there would be too many independent candidates on the ballot. That assertion is contradicted by the fact that Colorado is the only state in the nation that doesn’t let an independent candidate on the ballot if the candidate had been a member of a qualified party an entire
year before filing. There is no evidence in the case about voter confusion.

On June 10, the Texas Democratic Party filed a lawsuit in state court to remove the Green Party from the ballot. Texas Democratic Party v Texas Green Party, Travis Co., 10-001924. The Secretary of State had already certified the Green Party’s petition. Nevertheless, on June 24, the District Court enjoined the Green Party from sending its list of nominees to the Secretary of State.

The basis for the decision is that a corporation paid to collect the signatures. Texas election law, sec. 257.002, says corporations can contribute to political parties if the money is used to "defray normal operating costs incurred by the party" or to "administer a primary election or convention held by the party." The judge said he didn’t think a petition is a "normal operating cost."

The decision is hopelessly arbitrary. It is "normal" for minor parties to spend money on petition drives. Separate from that, Texas law says that a minor party petition is merely an extension of a minor party’s nominating convention. The law says that the petition begins at the state convention, and all voters in attendance sign it. Only if the number of attendees is below the number of required signatures, does the party even need to circulate a petition beyond the convention’s location.

Also, the law nowhere says that even if the contribution was illegal, that the petition should be invalidated. Texas is the only state that won’t let primary voters sign a ballot access petition for a new party. The theory behind this restriction is that a signature on a petition is equivalent to a primary vote. No one would imagine that a candidate who received an illegal campaign donation, and who had just won a primary, should have the primary results set aside. That outcome would be an assault on the voters who voted for that candidate. In this case, the court order is an assault on the 93,000 people who signed the party’s petition. The party is appealing to the State Supreme Court.

On June 24, the U.S. Supreme Court said that states are free to release the names and addresses of people who sign petitions, unless there is reason to believe that if the information is released, the signers will be harmed. Doe v Reed, 09-559. The case is from Washington state.

The vote was 8-1. Justice Clarence Thomas dissented. The opinion is by Chief Justice John Roberts. The plaintiffs signed a controversial referedum petition, and they don’t wish to have their names and addresses made public. They sued to stop the state from releasing the information.

The referendum petition would have had the effect of suspending a 2009 law that set up procedures for same-sex couples to be treated by the state as though they were married.

The decision says that there is a state interest in releasing the data, because even though elections officials check petitions in Washington, they might make mistakes, and public exposition of the names might lead to the discovery of such mistakes in the petition-checking process. But, the decision says that if petition signers can show that they might be harassed, then they should file a new lawsuit and can stop the release of the information. In this particular case, the U.S. District Court will now hold a trial to see if the plaintiffs qualify for privacy.

Justice Antonin Scalia wrote separately to say that the U.S. Constitution does not protect the secret ballot. None of the other justices expressed any opinion about that.

The decision may help other lawsuits that concern ballot access. Roberts wrote that signing a petition to put something on the ballot is expressive activity. "Expressive activity" means that the activity is protected by the Free Speech part of the First Amendment. By contrast, a 1992 U.S. Supreme Court decision, Burdick v Takushi, said that voting and (by implication) signing a petition are not expressive activity.

That language in Burdick v Takushi has made it difficult to win ballot access lawsuits. Law Professor Rick Hasen, an election law expert, wrote on his blog, electionlawblog.org, that Doe v Reed silently overrules Burdick v Takushi on that point.

On June 7, the U.S. Supreme Court refused to hear two ballot access cases, one from Alabama, Shugart v Chapman, and one from Louisiana, Libertarian Party v Dardenne. The Court hasn’t accepted a ballot access case brought by a minor party or independent candidate since 1991.

The chart below shows the most recent election at which a minor party candidate for the state legislature appeared on the November ballot, with the party label. The chart shows that each state has had such a candidate on its ballot in the last 10 years, except that North Dakota has not had such a candidate since 1976. The overwhelming majority of states had one in 2008.

North Dakota’s failure to have any minor party candidates on the November ballot, with the party label, is because of that state’s election law. It requires minor party candidates who appear on the general election with a party label to be nominated in a party primary. Furthermore, it is not enough for a candidate in a primary to simply outpoll all his or her opponents for the nomination. The candidate must also poll between 130 and 143 primary votes, depending on the size of the district. Although this sounds easy, North Dakota legislative districts only have a voter turnout of approximately 2,100 votes in primaries. The Libertarian Party had three candidates for the legislature in its primary this year, but none of them met the minimum vote. The party expects to file a lawsuit soon. No other state has such a minimum vote test for partisan primaries.

State	Candidate	District	Vote	%	Year	Party
Alabama	Dick Clark	House 79	396	3.12%	2006	Libertarian
Alaska	Scott Kohlhaas	House 20	812	19.46%	2008	Libertarian
Arizona	Mike Renzulli	Senate 14	3,391	17.44%	2008	Libertarian
Arkansas	Richard Carroll	House 39	4,261	89.33%	2008	Green
California	Pamela J. Brown	Assembly 40	18,239	14.76%	2008	Libertarian
Colorado	James Frye	House 42	1,207	6.91%	2008	Libertarian
Connecticut	Marc L. Guttman	Senate 20	700	1.59%	2008	Libertarian
Delaware	Robert E. Brown	House 2	349	5.74%	2008	Independent Party
Florida	Sarah Roman	House 44	4,825	6.02%	2008	Green
Georgia	Ken Parmalee	House 76	1,487	9.48%	2004	Libertarian
Hawaii	John Blumer-Buell	Senate 6	3,653	20.66%	2008	Independent Party
Idaho	Mikel Hautzinger	House 17A	3,298	23.27%	2008	Libertarian
Illinois	Kevin O’Connor	House 41	15,865	33.32%	2008	Green
Indiana	Rex Bell	House 54	8,374	33.49%	2008	Libertarian
Iowa	Eric Cooper	House 46	3,124	20.72%	2008	Libertarian
Kansas	Yvonne Cunningham	House 26	2,981	21.22%	2008	Libertarian
Kentucky	J. Lance Combe	House 81	2,754	18.50%	2008	Libertarian
Louisiana	Richard Fontanesi	Senate 16	3,995	9.03%	2007	Libertarian
Maine	Sandy L. Amborn	House 120	251	30.20%	2008	Green
Maryland	Jan E. Danforth	House 40	2,606	24.55%	2006	Green
Massachusetts	John I. Lebeaux	Sen, Wor 2	4,806	4.82%	2008	Green
Michigan	Terry Ashcraft	House 89	2,322	4.45%	2008	Libertarian
Minnesota	Paul Gaston	House 54B	2,556	12.18%	2008	Independence
Mississippi	Parker Dykes	Senate 35	4,542	29.05%	2007	Constitution
Missouri	Larry S. Busby	House 154	3,640	26.16%	2008	Libertarian
Montana	Paul W. O’Leary	House 25	239	4.96%	2008	Libertarian
Nebraska	(non-partisan)	– –	– –	– –	– –	– –
Nevada	Nathan Santucci	Assembly 22	14,930	22.33%	2008	Libertarian
New Hampshire	Lisa M. Wilber	Rep, Hills 7	2,242	22.79%	2008	Libertarian
New Jersey	Daryl Brooks	Assembly 15	775	2.10%	2009	Libertarian
New Mexico	Donald E. Thompson	House 19	1,465	24.11%	2006	Green
New York	Miochael Boncella	Senate 47	8,562	11.45%	2008	Working Families
North Carolina	Brian Irving	Senate 17	17,441	18.80%	2008	Libertarian
North Dakota	Clarence Jaeger	Senate 33	999	16.98%	1976	American
Ohio	Timothy McNeil	House 65	3,846	7.88%	2008	Libertarian
Oklahoma	Christopher Powell	House 100	1,556	14.72%	2000	Libertarian
Oregon	Jim Karlock	House 45	2,932	11.33%	2008	Libertarian
Pennsylvania	Mary Lea Lucas	Senate 21	13,987	15.42%	2008	Libertarian
Rhode Island	Jonathan Osborne	Senate 34	2,494	21.60%	2008	Socialist
South Carolina	Victor Kocher	House 76	1,335	9.44%	2008	Libertarian
South Dakota	Steve Willis	Senate 15	356	6.03%	2008	Constitution
Tennessee	Robert Callaway	House 23	4,108	23.47%	2000	Libertarian
Texas	Tom Davis	Senate 14	40,847	18.05%	2008	Libertarian
Utah	Dave Nelson	House 1	905	14.07%	2008	Libertarian
Vermont	Jeffrey Pascoe	House, Ch 7	648	37.85%	2008	Libertarian
Virginia	Matt Cholko	House 39	580	3.15%	2009	Libertarian
Washington	Ruth E. Bennett	House 37(2)	5,017	10.56%	2008	Libertarian
West Virginia	Robert Mills	House 51	1,666	24.51%	2008	Mountain
Wisconsin	Keith Deschler	Assembly 62	3,217	15.24%	2008	Libertarian
Wyoming	Richard Brubaker	House 34	770	19.85%	2008	Libertarian

This chart shows the most recent year at which a minor party candidate for State Legislature appeared on the November ballot, with the party label. All entries are for regularly-scheduled elections.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	WK FAM	Party	Indp.
Ala.	37,513	37,513	too late	too late	too late	too late	June 1	June 1
Alaska	(reg) 9,786	#3,128	already on	0	0	0	June 1	Aug. 24
Ariz.	20,449	(est) #25,500	already on	already on	too late	too late	Mar. 11	May 25
Ark.	10,000	10,000	*too late	*finished	*too late	0	June 30	May 3
Calif.	(reg) 88,991	173,041	already on	already on	in court	0	Jan. 6	Aug. 6
Colo.	(reg) 1,000	1,000	already on	already on	already on	0	June 1	June 15
Conn.	no procedure	#7,500	already on	already on	0	0	– – –	Aug. 11
Del.	(reg) *612	*6,115	already on	563	283	already on	Aug. 10	July 15
D.C.	no procedure	#3,000	*0	already on	*0	*0	– – –	Aug. 25
Florida	be organized	pay fee	already on	already on	already on	too late	Apr. 30	Apr. 30
Georgia	57,582	#44,089	already on	0	0	0	July 13	July 13
Hawaii	692	25	already on	already on	0	0	Apr. 1	July 19
Idaho	13,102	1,000	already on	0	already on	0	Aug. 27	March 19
Illinois	no procedure	#25,000	*finished	already on	*finished	*too late	– – –	June 21
Indiana	no procedure	#32,742	already on	*too late	*too late	*too late	– – –	June 30
Iowa	no procedure	#1,500	finished	0	0	0	– – –	Aug. 13
Kansas	16,994	5,000	already on	0	0	0	June 1	Aug. 2
Ky.	no procedure	#5,000	0	0	0	0	– – –	Aug. 10
La.	(reg) 1,000	pay $500	already on	already on	*0	0	May 20	Aug. 20
Maine	27,544	#4,000	too late	already on	too late	too late	Dec 11, 09	May 27
Md.	10,000	*34,072	already on	already on	already on	0	Aug. 2	Aug. 2
Mass.	(est) (reg) 40,000	#10,000	already on	*7,500	*0	*0	Feb. 1	July 27
Mich.	38,024	30,000	already on	already on	already on	0	July 15	July 17
Minn.	145,519	#2,000	0	*already on	0	*too late	Jun 1	Jun 1
Miss.	be organized	800	already on	already on	already on	*too late	April 9	April 9
Mo.	10,000	10,000	already on	1,400	already on	0	July 26	July 26
Mont.	5,000	#15,359	already on	too late	already on	too late	Mar. 18	Mar. 18
Nebr.	5,921	4,000	*1,500	0	0	0	Aug. 2	Aug. 24
Nev.	9,083	9,083	already on	already on	already on	0	June 11	Mar. 12
N. Hamp.	20,394	#3,000	*2,000	0	0	0	Aug. 4	Aug. 4
N.J.	no procedure	#1,300	*already on	*already on	*already on	*too late	– – –	June 8
N. M.	4,151	16,764	already on	in court	already on	*too late	Apr. 1	June 3
N.Y.	no procedure	#15,000	can’t start	can’t start	can’t start	already on	– – –	Aug. 17
No. Car.	85,379	85,379	already on	*too late	*too late	*too late	May 14	June 10
No. Dak.	7,000	#4,000	already on	0	0	0	Apr. 9	Sep. 3
Ohio	be organized	5,000	already on	already on	already on	too late	Feb. 3	May 3
Okla.	73,134	pay fee	*already on	0	0	0	May 1	June 9
Oregon	20,640	(est) 19,000	already on	already on	already on	already on	Aug. 26	Aug. 26
Penn.	no procedure	#19,056	*9,500	*11,000	*2,000	0	– – –	Aug. 2
R.I.	23,589	#1,000	0	0	0	0	May 28	July 22
So. Car.	10,000	10,000	already on	already on	already on	already on	May 2	July 15
So. Dak.	8,389	3,356	*too late	*too late	already on	0	Mar. 30	June 8
Tenn.	in court	25	in court	already on	in court	*too late	unsettled	April 1
Texas	43,991	43,991	already on	*in court	*too late	*too late	May 24	May 10
Utah	2,000	#1,000	already on	*too late	already on	*too late	Feb. 15	March 15
Vermont	be organized	#500	already on	0	already on	already on	Jan. 1	Jun 17
Virginia	no procedure	#11,000	*already on	*too late	*too late	*too late	– – –	June 8
Wash.	no procedure	pay fee	*too late	*too late	*too late	*too late	– – –	May 15
West Va.	no procedure	#7,250	0	already on	*1,200	0	– – –	Jul 30
Wisc.	10,000	#2,000	already on	already on	*0	*0	June 1	July 13
Wyo.	4,988	4,988	already on	0	finished	0	June 1	Aug. 23
TOTAL STATES ON			34*	22*	17*	5	“	`

*change from the May 1 2010 chart.
#partisan label is permitted on the ballot (other than "independent").
Mississippi, New Jersey, Virginia, and West Virginia have no statewide race in 2010, so the entry is for U.S. House.

On June 24, a Hart/McInturff poll conducted for NBC News and the Wall Street Journal asked voters if they prefer to vote for Congress this year for a Republican, a Democrat, or "Independent/Third Party." The results: 31% Republican, 34% Democratic, 25% independent/third party, 10% not sure. The poll also learned that 46% of the voters say they would be comfortable voting for a candidate other than a Democrat or a Republican.

North Carolina has had a government-printed ballot since 1901, and no independent candidate for U.S. House has ever qualified for that ballot. However, this year, the Service Employees International Union succeeded in getting enough signatures for its candidate for U.S. House, 8^th district. He is Wendell Fant, a former staffer to the very Democratic incumbent that the union now opposes, Larry Kissell.

This year, independents in the 8^th district needed 16,929 valid signatures. The SEIU submitted 35,540 signatures, of which 21,084 were valid. However, then Fant declared that he will not run, so the petition is legally useless. Conceivably, the organizers of the petition could try to substitute some other candidate who is willing to run, but that would require winning a lawsuit.

On June 22, California held a special election to fill the vacant State Senate seat, 15^th district. The vote: Republican, 49.49%; Democratic 41.73%; independent 5.88%; Libertarian 2.89%. Because no one got 50%, all four candidates will run again in August.

Brad Bryant, Georgia’s State Schools Superintendent, is attempting to qualify as an independent candidate for the office he now holds. No statewide independent has ever qualified for the Georgia ballot, except for independent presidential candidates, in all the years that Georgia has required independent candidates to submit a petition. Georgia has required petitions since 1943. Bryant needs 44,089 valid signatures. He is actually a Republican, but he was appointed to his present position after the deadline for filing for the Republican primary. Governor Sonny Perdue, a Republican, appointed Bryant and will help him obtain the signatures.

The Maryland State Board of Elections has ruled that the Independent Party is no longer a ballot-qualified party, even though it has registration of 1.05% of the total number of registered voters in the state. The law says any party with registration greater than 1% is qualified. However, the party hasn’t filed any campaign finance reports, and the Treasurer (the only officer of record) moved to Iowa, so the Board declared the party abandoned. The party was formed in 2008 to serve as a vehicle for placing Ralph Nader on the ballot. Maryland only requires 10,000 signatures for parties, but 34,072 signatures for statewide independent candidates.

On March 2, Texas held its primary. In the 22^nd U.S. House district, Kesha Rogers won the Democratic nomination in a 3-candidate race. She is an activist in the Lyndon LaRouche organization, which believes that President Obama should be impeached, and which displays large posters of the President with a Hitler moustache.

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