SECOND CIRCUIT SAYS STATES MAY HEAVILY DISCRIMINATE AGAINST INDEPENDENT CANDIDATES IN PUBLIC FUNDING

On July 13, The U.S. Court of Appeals, 2^nd circuit, voted 2-1 that states may give public funding to the Democratic and Republican Parties, and completely exclude independent candidates and the nominees of new parties from the program. Green Party of Connecticut v Garfield, 09-3760.

The Connecticut law does not completely eliminate the possibility of public funding for new parties and independent candidates, but footnote 14 says that even if it did, the law would still be constitutional.

Connecticut says new parties and independent candidates can get some public funding if they submit a petition signed by 10% of the last vote cast, and equal public funding if they submit a petition signed by 20% of the last vote cast. However, nominees of parties that got 20% of the last gubernatorial vote (in other words, Republicans and Democrats) need no signatures. No candidate in U.S. history, in any state, has ever overcome a requirement as high as 224,694 signatures, which is what the 20% petition provision requires. Because the 2^nd circuit seemed unable to say why a petition requirement that difficult is constitutional, it "solved" the problem by simply saying that the petition alternative need not exist at all. But without the petition alternative, it would be literally impossible for an independent candidate, or a new party, to get any public funding.

There is nothing in the text of the U.S Constitution to authorize such discrimination. The decision does not try to find authority in the Constitution for it. Instead, the majority simply said that the U.S. Supreme Court decision from 1976, Buckley v Valeo, decided this issue.

Buckley v Valeo upheld the law passed in 1974 that set up public funding for presidential candidates.

The 1974 federal law provides equal public funding for all candidates in the primary season, regardless of the candidate’s party affiliation. All candidates who raise at least $5,000 from each of twenty states qualify for primary season matching funds.

However, the 1974 act also says that general election funding for presidential candidates is limited to the nominees of parties that polled 5% of the vote in the last election. An independent candidate, or the presidential nominee of a party that is not entitled to general election funding, can still get general election funding immediately after the election, if the candidate gets 5% of the vote.

The U.S. Supreme Court upheld the discriminatory part of presidential public funding by saying that no one but Democratic and Republican nominees had even placed second, much less first, since 1912.

The 2^nd circuit decision ignores or minimizes three differences between the presidential public funding law, and the Connecticut law:

(1) The 2^nd circuit fails to mention that presidential candidates who poll 5%, but who had not got public funding before the election, may receive funding immediately after the election. Immediate post-election funding does not exist in Connecticut.

(2) The 2^nd circuit does not mention that the presidential law does not discriminate during primary season, which lasts nine months. By contrast, the general election part (the discriminatory part) lasts two months.

(3) The U.S. Supreme Court laid great stress on the historical record of presidential elections. The 2^nd circuit addresses the history of minor party and independent candidates in state elections, but the history it presents is incomplete.

The record in this case shows that, nationwide, 166 candidates (who were not nominees of either of the two major parties) have been elected Governor, or to a state legislature, in the years 1986-2006. However, the decision does not mention that evidence.

Connecticut itself, in 1990, elected a new party gubernatorial candidate, Lowell Weicker. He was the nominee of "A Connecticut Party." In 1992, two nominees of that party, Frank Barrows and Sandra Carpenter, both running for the legislature, outpolled one of their major party opponents, but not the other. Also, in 1994, one nominee of that party, Kenneth Przybysz, also outpolled one major party opponent, but not the other. The decision does not mention these legislative candidates. Nor does it mention that in 1954, two independent candidates were elected to the Connecticut legislature. Nor does it mention that in both 1934 and 1938, Socialist Party nominees were elected to the legislature.

During the last decade, the Green Party and the Working Families Parties have won partisan municipal elections in Connecticut. The decinecticut does not mention th
at either. It says in footnote 13, "The voters of Connecticut have shown little inclination to support the candidacies of minor parties, and as a result, the political opportunity of minor-party candidates in Connecticut was, before public funding, already insubstantial."

Other Errors & Omissions

The decision does not mention any of the precedents that say the U.S. Constitution does not permit states, nor the federal government, to discriminate against minor parties and independent candidates.

These opinions include two past 2^nd circuit opinions. Schulz v Williams, 44 F.3d 48 (1994) said if states give a free list of the registered voters to the qualified parties, the state must give the list to unqualified parties. Green Party of New York v State Board of Elections, 389 F.3d 411 (2004) said if the state lets voters register into the qualified parties, it must let voters register into unqualified parties.

The decision says in footnote 4 that Connecticut’s public funding program is "far more generous" than Minnesota’s program. This statement is false. Minnesota’s program is so fair that Jesse Ventura in 1998 received an equal amount of public funding with his Democratic and Republican opponents. Every year, the Minnesota program provides money not only to the state’s ballot-qualified minor parties, but even to unqualified parties that polled at least 1% of the vote for a statewide candidate in the last election.

The recent 2^nd circuit opinion quotes the U.S. Supreme Court opinion in Buckley v Valeo: "the government has an interest in not funding hopeless candidacies with large sums of public money." In the context of this case, that is a "straw man" argument. Connecticut requires all candidates who want to receive public funding to raise a very large amount of small private contributions. Gubernatorial candidates must receive $250,000 in private funds, and these contributions only count if they are from residents who give between $5 and $100. State Senate candidates need $15,000 from residents; State House candidates need $7,500. Again, the private contributions only count if they are from individuals who give at least $5, and amounts over $100 don’t count.

These financial hurdles are strict enough, all by themselves, to guarantee that candidates who meet them are not "hopeless."

The decision does not mention that Arizona and Maine have public funding for all state elections, and the programs in those two states do not discriminate against any candidate on the basis of the candidate’s party affiliation or independent status.

Issues in the Case Not Related to Minor Parties & Independents

The decision also strikes down extra public funding for publicly-funded candidates who have privately-funded candidates with substantial financial resources. That part of the decision was 3-0.

The decision also strikes down state laws that make it illegal for lobbyists to make campaign contributions, and make it illegal for contractors and lobbyists to solicit contributions on behalf of candidates.

The entire case now goes back to the U.S. District Court, which must quickly decide if the unconstitutional parts of the law (those described in the preceding two paragraphs) can be severed out from the remainder of the law. If the U.S. District Court finds that the unconstitutional parts can’t be severed from the other parts, then the entire public funding program is unconstitutional and there will be no public funding, discriminatory or not.

If the law survives, the parts of the law that discriminate against independent candidates and minor and new parties will almost surely be appealed to the U.S. Supreme Court.

The author of the opinion is Judge Jose Cabranes, a Clinton appointee. He had ruled against minor parties and independent candidates in the past. In Schulz v Williams, 44 F.3d 48 (1994) he upheld New York law requiring petitions to carry the precinct number, ward number, and assembly district number, for each signer. In Fulani v Federal Communications Commission, 49 F.3d 904 (1995), he said ABC-TV did not violate the Equal Time Rule by airing a three-hour "Town Hall" with Ross Perot in June 1992, while not giving any time to Lenora Fulani.

The other judge in the majority is Peter Hall, a Bush Jr. appointee. The judge who dissented is Amalya Kearse, a Carter appointee. Her dissent is three pages and focuses on the fact that many Democratic and Republican nominees are "hopeless" and have no chance to win, but they don’t need to collect signatures.

On July 2, the Texas Supreme Court stayed the June 24 order of a lower court that had ordered the Green Party not to tell the Secretary of State who its statewide nominees are. The Green Party then immediately gave the Secretary of State its list of nominees, so they will be on the ballot in November. Texas Democratic Party v Texas Green Party.

Also on July 2, the Texas Supreme Court said it would hear the case in August, but on July 7, the Texas Democratic Party dropped the ballot access part of its lawsuit.

This means that the Green Party will be on the ballot as a party in November 2010 in all of the eight most populous states, for the first time in its history (assuming its New York and Pennsylvania petitions are valid).

Democrats had filed the lawsuit, alleging that the funding source for the Green Party petition was illegal. The law is ambiguous.

On July 20, the 4^th circuit upheld a South Carolina law that says if a party nominates someone, and that person later tries to get the nomination of another party and fails, then the first party’s nomination is also void. South Carolina Green Party v State Election Commission, 09-1915.

The case arose in 2008, when the Green Party nominated Eugene Platt for the legislature. Later, Platt lost the Democratic primary for the same seat. South Carolina permits two parties to jointly nominate the same person, but the process is dangerously unpredictable, because Platt was barred from the general election entirely.

A silver lining in the decision is that it says that the Green Party did have the right to choose a substitu
te nominee. The State Election Commission had not taken that position, but it probably will do so now.

Delaware: on June 30, the legislature passed HB 425, which restores the Green Party to the ballot this year. Earlier this year another bill had passed that doubles the number of registered voters a party needs to be ballot-qualified. HB 425 says the earlier bill will not take effect until 2011. The old requirement (which will now be in effect in 2010) is that a party have 306 members; the 2011 requirement will be 612.

Illinois: on July 13, Governor Pat Quinn re-wrote and expanded a bill that had been sent to him by the legislature. The provision the Governor added switches Illinois from having the type of open primary in which the voter asks at the polling place for any party primary ballot, to the type in which the voter decides in the secrecy of the voting booth which party’s primary ballot to use. The bill, HB 4842, won’t go into effect unless both houses of the legislature approve it next year.

Louisiana: on June 25, Governor Bobby Jindal signed HB 292. It takes effect next year, and switches congressional elections from a semi-closed primary, to a top-two system in which the first round is in November, and there is no second round unless no one gets 50% in the first round. This is the same system Louisiana used for congressional elections between 1998 and 2006.

Rhode Island: on June 30, H7894 became effective. The Governor didn’t sign it, but he didn’t veto it either, so it is in force. It tells all towns in the state that they must let voters sign as many petitions for candidates for city office as they wish.

West Virginia: on July 19, HB 201 was signed into law. The legislature had passed it in special session. It sets up procedures for this year’s special U.S. Senate election. The three qualified parties (Democratic, Republican and Mountain) will hold primaries on August 28 to choose a nominee. Independent candidates, and the nominees of unqualified parties, can get on the November ballot with 1,784 signatures by August 23.

On July 23, the Attorney General and attorneys for the Constitution Party filed a joint brief with a U.S. District Court. The brief argues that the state’s ban on out-of-state petition circulators is unconstitutional. The case is Constitution Party of Kansas v Biggs, 10-4043.

Because both sides in the lawsuit agree that the law is unconstitutional, it is certain that the judge will now declare it unconstitutional. Kansas officials decided not to defend the Kansas law because the 10^th circuit already struck down an Oklahoma ban on out-of-state circulators in 2008, and Kansas is in the 10^th circuit. The state saves money by not contesting the lawsuit.

Colorado: Kathleen Curry has asked the 10^th circuit to put her on the November ballot. She is the independent state legislator who can’t run for re-election, except as a write-in candidate, or unless she wins her appeal. The law in effect this year says she can’t be an independent candidate, because she was a Democrat as recently as December 2009. The 10^th circuit is expediting the case. Curry v Daly, 10-1255.

Colorado (2): On June 25, a lower state court put Jennifer Coken, a candidate for the State House, on the Democratic primary ballot. The judge said the Secretary of State was mistaken to invalidate signatures of people who had also signed for her opponent. State law says a voter cannot sign for two opposing candidates, and only the first signature counts. But the judge said isn’t possible to know which petition was signed first, so the requirement can’t be enforced. On July 2, the State Supreme Court refused to hear the state’s appeal.

D.C.: on July 1, the U.S. District Court Judge who is hearing the case on whether the Elections Board must count Bob Barr’s write-in votes for president in November 2008 asked the U.S. Justice Department to express its view about the case.

Delaware: on July 20, a lower state court ruled that if the major parties object, no minor party member may file to run in a major party primary. Two Libertarian registrants, who are Libertarian Party nominees for public office this year, had also filed in the major party primaries. The state has no law that says candidates in primaries must be party members. The judge ruled from the bench and will not issue a written opinion. The candidates hope to appeal to the State Supreme Court. Delaware permits fusion. McVay v Dept. of Elections for Kent County.

Illinois: on July 22, the 7^th circuit said the state must hold a special election for U.S. Senate in November 2010. It will be interesting to see what ballot access procedures the state will follow to hold this election. Judge v Quinn, 09-2219.

Indiana: on June 30, the State Supreme Court reversed the lower court and upheld the law requiring voters at the polls to show government photo-ID. League of Women Voters of Indiana v Rokita.

Maine: on June 29, independent gubernatorial candidate Alex Hammer filed a lawsuit in state court, to reverse a decision of the Secretary of State that candidates cannot deliver their signatures to town clerks electronically. Hammer had scanned his petitions with high resolution and had e-mailed them to the various town clerks. Hammer v Secretary of State, Penobscot County, ap-10-15.

Nebraska: on July 1, a U.S. District Court refused to enjoin the law banning out-of-state circulators. Citizens in Charge v Gale, 4:09cv-3255. There will be a trial later to decide whether the ban on out-of-state circulators is constitutional. The judge refused to enjoin the law, in advance of the trial, because Nebraska is in the 8^th circuit, and the 8^th circuit is the only circuit that has upheld a ban on out-of-state circulators.

Nevada: on July 1, a U.S. District Court enjoined a regulation that says petitions must swear that all the signers are registered voters. Angle v Miller, 2:09-cv-1969.

~	Demo.	Rep.	Green	Lib’t.	Indpnce	Constitutn	other
Alabama	7,819	7,844	– –	– –	– –	– –	– –
Arizona	13,255	7,493	578	1,573	– –	– –	– –
Idaho	13,200	10,198	– –	1,281	– –	1,005	10 United
Iowa	43,638	33,171	– –	– –	– –	– –	– –
Kentucky	97,590	83,008	– –	– –	– –	– –	– –
Maine	5,857	2,639	1,656	– –	– –	– –	– –
Minn.	39,021	22,703	3,019	– –	5,414	– –	– – < /td>
N. Mex.	5,616	3,360	2	– –	– –	94	– –
No. Car.	457,548	282,089	– –	5,427	– –	– –	– –
Ohio.	71,443	71,443	– –	– –	– –	– –	– –
Rhode I.	9,070	4,176	– –	– –	– –	– –	162 Moderate
Utah	26,894	66,220	2	2,834	– –	2,518	44 Pers. Ch.
Virginia	39,611	21,683	– –	– –	– –	– –	– –
TOTAL	~	~	5,257	11,115	5,414	3,617	216

The states above give state income-taxpayers a chance to direct a contribution to the political party of the taxpayer’s choice. The chart above lists the amounts received by each party. Ohio does not let taxpayers decide which party to help, and only lets taxpayers help parties that polled 20% in the last election. All the other states let the taxpayer decide which party to help. North Carolina won’t print a party on the tax form unless it has registration of at least 1%. The Libertarian Party registration has never been that high in North Carolina, but the state mistakenly put it on the 2008 tax forms anyway. The reason the party got some donations on the 2009 tax forms in calendar year 2010 is that some 2008 forms were submitted late.

YEAR	Democrat	Republican	Green	Lib’t.	Reform	Constit.	Other
2000	941,463	822,671	31,864	13,024	5,054	19,209	71,824
2001	680,608	611,065	12,184	8,173	755	2,295	46,232
2002	928,716	892,438	84,120	7,289	749	2,886	97,559
2003	1,181,312	1,126,585	20,665	7,859	46	51	9,975
2004	828,136	786,190	16,309	8,446	324	1,409	8,822
2005	750,461	714,238	18,100	5,546	34	2,442	25,887
2006	915,945	806,193	50,434	7,282	– –	5,847	45,355
2007	1,050,593	850,580	15,716	5,839	– –	3,503	15,627
2008	1,520,746	1,127,478	8,324	5,034	– –	5,938	5,219
2009	978,325	718,165	7,642	45,889	– –	4,520	4,970
2010	830,562	616,027	5,257	11,115	– –	3,617	216

Ballot Access News has been collecting this data starting in 2000, so those ten years of data are summarized in the above chart. The ratio between the amounts contributed to the Democratic Party and the Republican Party is interesting to track. Although Democrats have always received more donations from state income tax checkoffs than Republicans have, the ratio between the two major parties was closest in 2003, and furthest apart in 2008.

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	*already on	too late	too late	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	*too late	June 1	June 15
Conn.	no procedure	#7,500	already on	already on	0	*9,500	– – –	Aug. 11
Del.	(reg) *306	*6,115	already on	*already on	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	*too late	*too late	*too late	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	*finished	*too late	*too late	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	*too late	already on	*too late	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	*5,500	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	*3,000	0	0	0	*Aug. 11	*Aug. 11
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	*3,000	*6,000	*0	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	*finished	*finished	*too late	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	*already on	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	0	0	– – –	*Aug 23
Wisc.	10,000	#2,000	already on	already on	0	0	June 1	July 13
Wyo.	4,988	4,988	already on	0	*too late	0	June 1	Aug. 23
TOTAL STATES ON			34	25*	17	5	“	`

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

On July 23, Tom Tancredo said will probably be the Constitution Party’s candidate for Colorado Governor. The Constitution Party is ballot-qualified, and has the right to nominate someone even though the person has not recently been a registered party member.

Tancredo was a candidate for President in Republican primaries in 2008. He was in Congress in 1999-2009. He says will not accept the Constitution Party’s nomination if the two Republicans running in the August 10 primary both pledge (no later than July 26) that they will withdraw immediately after the primary if polls show them losing to the Democratic nominee. But both Republicans, Scott McInnis and Dan Maes, have already said they will not do that.

The Constitution Party only has the right to nominate someone who hasn’t recently been a registered member because SB 83 passed the Colorado legislature in 2007. Before that bill passed, only the two major parties had the right to nominate someone who hadn’t recently been a registered member. That bill, in turn, only came into existence because the Libertarian Party complained to the legislature. The Libertarian Party had wanted to nominate someone for Sheriff of Arapahoe County in 2006, but he had recently been a registered Republican, so the party sued. In response, the legislature fixed the problem.

Recently, two state legislators became independents. Wisconsin Assemblyman Bob Ziegelbauer left the Democrats and is running for re-election as an independent. Louisiana Representative Ernest Wooton left the Republicans and is running for U.S. Senate as an independent. Also, Michigan State Supreme Court Justice Elizabeth Weaver left the Republican Party and is running for re-election this year as an independent.

Two independent candidates for Georgia statewide office tried to get on the ballot this year, but neither succeeded. One is Brad Bryant, who is the state’s Schools Superintendent. He had been appointed to that job a few months ago and he wanted to run for re-election, but he was too late to file in the Republican primary, so he set out to gather 44,089 signatures to be an independent candidate. He only collected 33,000 by the deadline, despite spending tens of thousands of dollars on paid circulators.

The other candidate is Ray Boyd, who wanted to run for Governor as an independent, and who had a campaign fund of $2,000,000. He did not hire enough paid circulators and was unable to qualify.

A third independent, Mary Norwood, an independent for Chair, Fulton County Commission, needs approximately 22,500 valid signatures. She submitted 33,000, and as this is being written, her petition is still being checked. But she paid the filing fee four hours too late, so even if she has enough signatures, she needs to win a lawsuit on timing.

Kristin D
avis is circulating petitions to get herself on the New York ballot as the gubernatorial candidate of the "Anti-Prohibition Party". She had earlier hoped to get the Libertarian Party’s gubernatorial nomination.

Ben Manski, a well-known and well-respected political activist in Madison, Wisconsin, is running for the Assembly as a Green Party candidate. The incumbent is not running for re-election. This is the first time the Wisconsin Green Party has ever run a candidate for the lower house of the Wisconsin legislature from Madison.

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