NORTH CAROLINA REPEALS DISCRIMINATORY LAW ON PUBLIC FUNDING FOR MINOR PARTIES

On July 17, North Carolina Governor Bev Perdue signed SB 1177 into law. It provides that all ballot-qualified parties should be listed on the state income tax form, so that taxpayers may choose to send a small donation to the party of the taxpayer’s choice.

The old law said that only parties with registration of at least 1% of the state total should be listed. No party, other than the Democratic and Republican Parties, has ever had as much as 1% of North Carolina’s registration. George Wallace’s American Party, at its registration peak in North Carolina in 1972, had 7,164 members, which was .30% of the registration. The Reform Party, at its peak in 1996, only had 311 members, .01%. The Libertarian Party’s peak, in September 2005, was 13,006 registrants, .25%.

The state income tax form in North Carolina accidentally listed the Libertarian Party on tax returns filed during 2009. The Libertarian Party was the recipient of $39,691 during 2009, which shows the importance of being listed. Old 2009 forms filed in 2010 also produced another $5,427 for the party.

Twelve states let taxpayers choose a party on state income tax forms, and let the taxpayer donate to that party. In eleven states, the ballot-qualified parties are listed. In Rhode Island, no party is listed, but taxpayers may write in the party they wish to help.

SB 1177 was introduced by Senator David Clodfelter (D-Charlotte). SB 1177 passed unanimously in the Senate, and by a vote of 107-8 in the House. It had many other election law changes, and the title of the bill was "Technical and Administrative Changes." Gary Bartlett, Executive Director of the State Board of Elections, deserves a great deal of credit for this outcome.

On August 4, U.S. District Court Judge Roberto Lange, an Obama appointee, upheld a South Dakota election law that requires the statewide candidates of newly-qualifying parties to submit the signatures of 250 party members, even if the party doesn’t have that many registered members. Constitution Party of South Dakota v Nelson, cv10-3011.

The decision does not even mention the three on-point precedents on the subject of how many signatures are needed for candidates running in the primary of small qualified parties. They are from Pennsylvania in 1985, Arizona in 1980, and Maine in 1992. Instead, Judge Lange cites New York State Board of Elections v Lopez Torres, a 2008 U.S. Supreme Court decision that upheld the severe primary ballot access requirements for candidates to get on for Delegate to a political party judicial convention. However, the key point in the Lopez Torres decision was that the major parties wanted the requirements to be difficult, and that determined the outcome. This case is just the opposite; the Constitution Party
had filed the case because it wants easier ballot access rules for its own candidates to get on its own primary ballot. The judge missed this important point.

The judge also failed to follow instructions set forth by the U.S. Supreme Court in Storer v Brown in 1974, on how to evaluate ballot access petition requirements. Lower courts are supposed to determine the number of signatures needed, and divide that number by the number of eligible signers. In this case, there were only 315 eligible signers, so the law required 80% of the eligible signers to sign. Storer v Brown does not say the candidate is supposed to enlarge the pool of eligible signers.

In Storer v Brown, the Court had considered a California law that said independent candidates need the signatures of 5% of the last vote cast, and primary voters can’t sign. The U.S. Supreme Court did not say that an independent candidate is expected to urge people not to vote in the primary. By analogy, there is no duty in South Dakota for a Constitution Party candidate to increase the party’s registration.

The judge also said the party doesn’t have standing. He said the candidate-plaintiff doesn’t have standing either, because she had not tried to circulate the petition to get herself on the Constitution Party’s primary ballot. That was another legal error. Three times, the U.S. Supreme Court has said that candidates or parties have standing to challenge restrictive ballot access laws, even if they don’t try to circulate a petition. Those decisions were in 1968, 1974, and 1976. Furthermore, when a judge finds that plaintiffs don’t have standing, the judge is supposed to limit his decision to the standing issue. It is not proper for a judge to say that none of the plaintiffs have standing, and then go ahead and decide the issue anyway. The decision will be appealed.

A Maine state court is giving Ralph Nader his first chance to present evidence that the Democratic Party tried to keep him off the ballot in 2004 in as many states as possible, even though it knew that many, if not most, of its challenges lacked merit. The case also concerns dirty tricks. Nader v The Maine Democratic Party, et al, Washington County Superior Court, 2009-57. The hearing starts September 27, 2010.

On August 24, U.S. District Court Judge Graham Mullen, a Bush Sr. appointee, upheld North Carolina’s petition requirement for independent candidates for U.S. House. Greene v Bartlett, 5:08-cv-88, western district.

The law requires a petition signed by 4% of the current number of registered voters. North Carolina has had government-printed ballots since 1901, and no independent candidate for either House of Congress has ever appeared on the ballot. However, this year, the Service Employees International Union did succeed in getting enough signatures to place an independent for U.S. House on the ballot. He won’t appear on the ballot because he withdrew. But the judge cited that example as reason to uphold the law. There is nothing in the court record about that petition effort. It is probable that the petition drive, for a candidate named Wendell Fant, cost $50,000.

The real basis for the decision is that in 1971, the U.S. Supreme Court upheld Georgia’s ballot access petition, 5% of the number of registered voters, in Jenness v Fortson. It is most likely that the U.S. Supreme Court didn’t understand how difficult such petitions are to complete. Plaintiffs in that case, Socialist Workers Party candidates in 1970, presented no evidence. The state presented evidence that two statewide petitions had succeeded in Georgia, one in 1966 for the Republican candidate for Governor, and one in 1968 for George Wallace. No one told the court that the 5% petition had been in place since 1943 and that it had never been used except in 1968 and 1970.

The effect of lower court reliance on Jenness v Fortson, and the U.S. Supreme Court’s refusal to take a new case on this subject, is that it is policy in the United States that states are free to ban all independent and minor party candidates who aren’t extremely well-funded. A filing fee of $50,000 would be considered outrageous, but in effect, North Carolina has a filing fee of $50,000 for independent candidates for U.S. House.

On July 29, U.S. District Court Judge D. P. Marshall, an Obama appointee, upheld an Arkansas election law that removes a party from the ballot after a presidential election if it didn’t poll 3% for President. Green Party of Arkansas v Daniels, 4:09-cv-695. The party need not decide whether to appeal until the end of September.

No federal court has ever struck down a state law on how a party remains on the ballot, so it is tough to win a case like this. The ruling says that because the party got itself on the ballot by petition in 2006, 2008, and 2010, the burden on the party is "moderate", not "severe." The decision acknowledges that the petition drive cost the party $40,000 in 2006, $30,000 in 2008, and $14,000 in 2010. The cost in 2010 decreased partly because, in 2009, the legislature expanded the period for completing the petition from 60 days to 90 days.

It is possible the 2011 session of the legislature will improve the vote test. If the Green Party’s nominee for Governor, Jim Lendall, receives 3% of the vote in November 2010, the party will be automatically on the ballot in 2012. But if Lendall doesn’t get 3%, the party will need yet another 10,000 signatures for 2012.

On July 30, bills were introduced in each house of Congress to make it more difficult for presidential candidates to qualify for matching funds. Current law requires the candidate to raise $5,000 in each of 20 states. The bill would change that to $25,000 in each of 20 states. The bills are S3681, by Senator Russell Feingold (D-Wi.) and HR6061, by Rep. David Price (D-N.C.).

The bills would make other changes. Notably, it would allow the matching funds to be released in September of the year before the election. Currently the money is not available until January of the election year.

On July 28, two minor party candidates for Congress in 2012, and four voters, filed a lawsuit in state court, alleging that certain details of California’s "top-two" system are unconstitutional. Field v Bowen, Superior Court, San Francisco, cgc10-502018.

One plaintiff, Rodney Martin, is the chair of the Reform Party in California, which has over 20,000 registered members even though it is not qualified. Another plaintiff, Jeff Mackler, is a leader of Socialist Action. Both would like to have their party label on the ballot, but the top-two system says only candidates who are members of qualified parties can have a party label. The law says the ballot label should be "My party preference is the (insert name here) Party." Proponents of the "top-two" system say that party labels on the ballot do not mean that the party has nominated the candidate, or even that the party approves of the candidate. The labels are for the purpose of letting the voters know the candidate’s ideology. Therefore, one wonders what rationale lets some candidates express themselves, but does not let other candidates express themselves.

The lawsuit also challenges the part of the top-two implementation that says write-ins can not be counted in November. The top-two law does not remove write-in space from the ballot, and still permits write-in candidates to file a declaration of write-in candidacy. Federal courts, as early as 1915, have said that the U.S. Constitution protects a voter’s right to have his or her valid vote counted.

Lieutenant Governor Abel Maldonado, and Governor Arnold Schwarzenegger, have attacked the lawsuit, claiming the plaintiffs are "party bosses" and/or "special interests." Nothing could be further from the truth. On August 24, the judge in this case ruled that Maldonado, and the California Independent Voters Network, and the "Californians for 14" Committee, may intervene in the lawsuit.

North Star, A Memoir, by Peter Camejo. Paperback, 364 pages, published 2010 by Haymarket Books.

This is Peter Camejo’s autobiography, published after his death in September 2008. Camejo was a leader in the Socialist Workers Party from his college days at MIT, until the end of the 1970’s. He was the party’s presidential candidate in 1976. He was also the Green Party gubernatorial candidate in California in 2002, 2003, and 2006. He was also Ralph Nader’s running mate in 2004.

No one who enjoys the content of this newsletter could not be interested in the contents of this book. Furthermore, plenty of readers who are not interested in minor parties would also enjoy this book. Camejo is a very talented writer. Furthermore, his life was extraordinarily exciting.

The book opens with an account of how friendly employees at the Cali, Colombia airport saved him from being arrested. Camejo was heavily involved with the anti-Vietnam War movement, the movement for greater equality and fairness for Latinos, with the student movement, and with social movements in many Latin American nations. Much of the book takes place in various South and Central American countries.

Camejo also was a financial planner, trained by Merrill Lynch, and a founder of Progrressive Assets Management.

United States Gubernatorial Elections, 1861-1911, by Michael J. Dubin. Hardback, 650 pages, published 2010 by McFarland & Co.

This is Michael Dubin’s fourth book of old election returns data that is impossible to find anywhere else in a single source.

This latest book has the vote for all gubernatorial candidates for all states, 1861-1911. The book presents the vote by county for most of these candidates.

The book is a companion book to U.S. Gubernatorial Elections 1776-1860, U.S. Presidential Elections 1788-1860, and United States Congressional Elections, 1788-1997.

Unlike other reference books, Dubin always includes all candidates. All of his books are indexed.

Arizona(1): on August 17, opponents of the part of the state’s public funding law that permits extra public funding for candidates with privately-funded opponents who have a great deal of money asked the U.S. Supreme Court to hear their case. McComish v Bennett, and a very similar additional case, Arizona Free Enterprise Club’s Freedom Club PAC v Bennett.

Arizona(2): on August 13, the 9^th circuit issued Wolfson v Brammer, 09-15298. It says a candidate has standing to challenge an election law, even if the original election is over and the candidate had not said he or she would run in the next election. The issue is speech limitations on judicial candidates, but this ruling will help ballot access cases also.

Colorado: on August 4, a lawsuit was filed against a law that lets individuals contribute twice as much to a candidate nominated in a party primary, as to an independent candidate. Riddle v Ritter, 10-cv-01857.

Dist. of Columbia: on July 30, the U.S. J
ustice Department wrote a letter to U.S. District Court Judge Emmett Sullivan, saying it does not wish to take a position on whether the U.S. Constitution requires the District of Columbia Board of Elections to count write-ins for declared write-in presidential candidates. The judge had asked for the opinion of the U.S. government. Libertarian Party v Board of Elections, 09-cv-1676.

Florida: on July 30 the 11^th circuit enjoined extra public funding for candidates who have privately-funded opponents with a great deal of money. This is the same issue as in the Arizona(1) entry above, but the two circuits disagreed with each other. Scott v Roberts, 10-13211.

Georgia: on August 4, the 11^th circuit refused to rehear Coffield v Handel, the case over the number of signatures for an independent candidate for U.S. House. Faye Coffield will appeal to the U.S. Supreme Court.

Maine: on August 5, opponents of extra public funding for certain candidates filed a lawsuit against extra funding. This is the same issue described in the Florida and Arizona(1) paragraphs above. Cushing v McKee, 1:10-cv-330.

North Dakota: on July 19, the Libertarian Party filed a lawsuit against a state law that says primary winners still can’t be on the November ballot, for state legislature, unless they each received between 130 and 150 votes in the primary. North Dakota legislative districts are so small, this is sometimes as many as 12% of all the votes cast. Libertarian Party of N.D. v Jaeger, 3:10-cv-64. Briefs from both sides have now been filed.

Rhode Island: two federal lawsuits have been filed by independent candidates against the straight-ticket device, which injures independent candidates because only the party nominees have such a device. A decision is expected by the first week in September. Lusi v Mollis, 10-350, and Healey v State, 10-316.

Vermont: on August 24, a lawsuit was filed in state court, challenging the June petition deadline for independent candidates. Trudell v Moskowitz, Superior Court, Washington County.

Virginia: on August 23, a U.S. District Court upheld the state’s ban on circulators for an independent candidate for district office, if the circulators don’t live in that district. Lux v Rodrigues, 3:10-cv-482. A quick appea is underway. The candidate, Herb Lux, running for U.S. House, won’t be on the ballot unless his appeal succeeds.

On August 4, the Governor of Massachusetts signed the National Popular Vote Plan bill. Massachusetts is the sixth state to have passed it.

The chart below shows how many U.S. House nominees the Republican, Democratic, Libertarian, Green and Constitution Parties have this year, and (for the sake of comparison) in 2008. For the California entry for the Constitution Party, the entry "six" reflects that six of the seven American Independent Party nominees for U.S. House believe that the AIP ought to be, and is, the California affiliate of the Constitution Party.

~	Dem 10	Dem 08	Rep 10	Rep 08	Lbt 10	Lbt 08	Grn 10	Grn 08	Con 10	Con 08
Ala	4	6	7	6	0	0	0	0	1	0
Alas	1	1	1	1	0	0	0	0	0	0
Ariz	8	8	8	8	9	8	4	2	0	0
Ark	4	3	4	1	0	0	3	3	0	0
Cal	51	51	53	46	21	20	5	5	6	2
Colo	7	7	7	7	6	1	1	1	4	3
Ct	5	5	5	5	0	1	3	5	0	0
Del	1	1	1	1	1	1	0	0	0	0
D.C.	1	1	1	0	0	0	1	1	0	0
Fla	21	25	24	22	0	0	0	0	0	1
Ga	10	13	13	11	0	0	0	0	0	0
Hi	2	2	2	2	1	2	0	0	0	0
Id	2	2	2	2	1	0	0	0	0	0
Ill	19	19	19	18	0	0	13	10	0	0
Ind	9	9	9	9	9	5	0	0	0	0
Iowa	5	5	5	5	2	0	0	1	1	0
Kan	4	4	4	4	4	4	0	0	0	0
Ky	6	5	6	6	1	1	0	0	1	1
La	5	5	7	6	0	1	0	1	0	0
Maine	2	2	2	2	0	0	0	0	0	0
Md	8	8	8	8	7	8	0	1	3	1
Mass	10	10	9	4	2	0	0	0	0	0
Mich	15	15	15	14	14	15	11	12	9	7
Minn	8	8	8	8	0	0	0	0	1	0
Miss	4	4	4	4	2	0	0	1	1	0
Mo	8	9	9	8	8	7	0	0	3	8
Mont	1	1	1	1	1	1	0	0	0	0
Neb	3	3	3	3	0	0	0	0	0	1
Nev	3	3	3	3	2	3	0	2	3	3
N H	2	2	2	2	2	2	0	0	0	0
N Jer	13	13	13	12	3	1	4	4	1	1
N Mex	3	3	3	3	0	0	0	0	0	0
N York	29	29	25	27	6	1	0	1	1	0
No C	13	13	13	13	4	3	0	0	0	0
No D	1	1	1	1	0	0	0	0	0	0
Ohio	18	18	18	18	13	4	3	1	5	0
Okla	3	5	5	5	2	0	0	0	0	0
Ore	5	5	5	3	1	2	4	5	1	4
Penn	19	19	18	18	1	1	1	1	0	5
R I	2	2	2	2	0	0	0	0	0	0
So C	6	6	6	6	2	0	3	1	3	2
So D	1	1	1	1	0	0	0	0	0	0
Tenn	9	9	9	6	2	0	0	0	0	0
Tex	26	26	32	30	31	29	2	0	0	0
Utah	3	3	3	3	2	2	0	0	3	3
Vt	1	1	1	0	0	0	0	0	0	0
Va	10	11	11	9	4	1	0	0	0	0
Wash	9	9	8	9	0	0	0	0	0	0
W Va	3	3	3	2	0	0	0	0	1	0
Wis	8	7	8	7	1	2	0	0	0	0
Wyo	1	1	1	1	1	1	0	0	0	0
TOTAL	412	422	428	393	166	127	58	58	48	41

"Con" = Constitution Party; "Lbt" = Libertarian; "Grn" = Green

< td width="15%" valign="TOP">

10,000

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	*too late	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	*too late	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	*already on	– – –	Aug. 11
Del.	(reg) 305	*6,115	already on	*already on	*too late	already on	Aug. 10	July 15
D.C.	no procedure	#3,000	*too late	already on	*too late	*too late	– – –	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	*too late	*too late	*too late	July 13	July 13
Hawaii	692	25	already on	already on	*too late	*too late	Apr. 1	July 19
Idaho	13,102	1,000	already on	*too late	already on	*too late	Aug. 27	March 19
Illinois	no procedure	#25,000	*already on	already on	*too late	too late	– – –	June 21
Indiana	no procedure	#32,742	already on	too late	too late	too late	– – –	June 30
Iowa	no procedure	#1,500	*already on	*too late	*too late	*too late	– – –	Aug. 13
Kansas	16,994	5,000	already on	too late	too late	too late	June 1	Aug. 2
Ky.	no procedure	#5,000	*too late	*too late	*too late	*too late	– – –	Aug. 10
La.	(reg) 1,000	pay $500	already on	already on	*too late	*too late	May 20	Aug. 20
Maine	27,544	#4,000	too late	already on	too late	too late	Dec 11, 09	May 27
Md.	*34,072	already on	already on	already on	*too late	Aug. 2	Aug. 2
Mass.	(est) (reg) 40,000	#10,000	already on	*already on	too late	too late	Feb. 1	July 27
Mich.	38,024	30,000	already on	already on	already on	*too late	July 15	July 17
Minn.	145,519	#2,000	*too late	already on	*too late	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	*already on	*too late	*too late	*too late	Au g. 2	Aug. 24
Nev.	9,083	9,083	already on	already on	already on	*too late	June 11	Mar. 12
N. Hamp.	20,394	#3,000	*already on	*too late	*too late	*too late	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	*finished	*finished	*too late	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 < /td>	too late	Feb. 3	May 3
Okla.	73,134	pay fee	already on	*too late	*too late	*too late	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	#19,082	*too late	*too late	*too late	*too late	– – –	Aug. 2
R.I.	23,589	#1,000	*too late	*too late	*too late	*too late	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	*too late	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 < /td>	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	*too late	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	*too late	already on	*finished	*too late	– – –	Aug 23
Wisc.	10,000	#2,000	already on	already on	*too late	*too late	June 1	July 13
Wyo.	4,988	4,988	already on	*too late	too late	*too late	June 1	Aug. 23
TOTAL STATES ON			38*	26*	17	6*	“	`

*change from the August 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.

Two Green Party legislative candidates have received endorsements from groups that have seldom endorsed minor party nominees in the recent past. The Arkansas AFL-CIO endorsed Mark Swaney, and the Madison, Wisconsin Public School Teachers Union endorsed Ben Manski.

On August 21, Australia held elections for both houses of its national legislature. The Senate uses Proportional Representation, and the House uses Preferential Voting.

In election returns for the House, Greens polled 11.38% of the total national vote, and elected one member from Melbourne. The House has 150 members. Although one member out of 150 seats may seem very disappointing for a party that polled such a high share of votes, if the election had been conducted under "winner-take-all" rules, the Greens would not have even elected one member. The Labor Party candidate in that Melbourne district had the most first-place votes, but the Green was elected when the second-choice voters were counted.

In the Senate, the votes still aren’t entirely counted, but it appears the Greens will have seven, eight or nine Senators, out of 75. Neither of the two major parties has a majority in either house. Greens will be very influential in organizing the Senate. In the House, the four independents and the one Green will also be influential.

The Libertarian Party, the Tea Party, and the Green Party all submitted statewide petitions in Pennsylvania this year, but all of the candidates named on those statewide petitions withdrew after the petitions were challenged. The challenges were filed by leading Democrats and Republicans. The Republican Party’s challenge contained a threat that if the candidates did not withdraw, and if the petition were invalidated, the candidates would be liable for up to $110,000 in court costs. Pennsylvania thus becomes one of only five states in which only Democrats and Republicans are on the statewide ballot. The other states are Kentucky, New Mexico, Alabama, and Washington. Also, there are no statewide races in Virginia, New Jersey, and Mississippi.

The Socialist Action Party has placed its nominee on the ballot for U.S. House in Connecticut’s First District. He is Chris Hutchinson. This is the first time a U.S. House candidate with "Socialist" in the party name has appeared on a Connecticut ballot since 1960. Socialist Action Party was formed in the 1980’s by people who had previously been members of the Socialist Workers Party.

The Working Families Party is running Rob Groce for South Carolina’s U.S. House seat, First District. He is not also the nominee of the Democratic Party. The WFP had originally nominated a candidate who was running in the Democratic primary, but that candidate lost the Democratic primary. South Carolina election law does not allow the WFP to keep its original nominee, because he lost the Democratic primary. But the State Election Commission did let the WFP come forward with a new nominee, which sets a valuable precedent in South Carolina.

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