U.S. DISTRICT COURT INVALIDATES TENNESSEE BALLOT ACCESS LAW FOR NEW AND MINOR PARTIES

On September 20, U.S. District Court Judge William J. Haynes, a Clinton appointee, struck down Tennessee’s ballot access law for new and previously unqualified political parties. The case had been filed on January 23, 2008, by the Constitution, Green, and Libertarian Parties of Tennessee. Libertarian Party of Tennessee v Goins, 3:08-cv-00063.

Tennessee requires a party to submit a petition of 2.5% of the last gubernatorial vote, to get on the ballot. The law does not say what the deadline is, but officials say the petition is due by the first Thursday in March. Tennessee holds its non-presidential primary in August, and the law requires all parties, even newly-qualifying parties, to nominate by primary.

The ruling says that the combination of the high number of signatures, and the early deadline, makes the law too difficult. No group has successfully qualified since the existing law was passed in 1972. In 2008 and 2010, the law requires 45,464 signatures.

The law also says that the signers must be "members" of the party whose petition they are signing. The state said it doesn’t enforce this law, which is unclear in any event, because Tennessee doesn’t have registration by party. However, the membership provision acts to discourage groups from circulating the petition, because if they prepare their own petition and it says nothing about the signers being members, there is a fear that the petition could be challenged.

Tennessee has very easy independent candidate requirements. Only 25 signatures are required for any independent (except that presidential independents need 275 signatures). However, candidates who use the independent procedure cannot have any label on the ballot except for the word "independent".

Also, in most Tennessee counties, party nominees are placed in a party column with the name of the party in large print, but independent candidates are squeezed into a single column headed "Independent Candidates."

The state has not yet said if it will appeal. The decision will have no effect on the 2010 election.

States often try to justify early petition deadlines for newly qualifying parties, by saying that the state wants to give all parties a primary, so the deadline must be early to give time to check the petition and then prepare a primary for that party. But courts have not let the state’s policy override precedents against early petition deadlines. Other states in which the ballot access laws for new parties were found to be too early, even though the state wanted to provide a primary for them, are Idaho, Nevada, Nebraska, Arkansas, and Ohio. Also, two federal courts in South Carolina (a state that lets any party choose to nominate by convention) have ruled that the state can’t force newly-qualifying parties to hold conventions as early as the older parties.

Most of these states then changed their laws to provide for petition deadlines in the second half of the year, and to provide that newly-qualifying parties may nominate by convention. However, Ohio and South Carolina not yet revised their laws to take account of these court decisions.

In 2007, bills were introduced in the Tennessee legislature to provide that parties need 2,500 signatures, due in July, and that they would nominate by convention. The bills were SB 288 and HB 626. They did not make any headway, but perhaps the 2011 session of the legislature will pass similar bills.

On September 3, U.S. District Court Judge Ralph Erickson, a Bush Jr. appointee, upheld a North Dakota law that effectively says that a party can’t nominate candidates for the legislature unless approximately 10% to 15% of the primary voters choose to vote in that party’s primary. Libertarian Party of North Dakota v Nelson, 3:10-cv-64.

North Dakota is the only state that says a candidate in a partisan primary must do more than outpoll all of his or her opponents for that nomination. In North Dakota, the candidate cannot be deemed nominated unless his or her vote in the primary equals 1% of the population of that legislative district. Turnout is so low in North Dakota primaries, 1% of the population amounts to up to 15% of the voters who turn out to vote. Because the vast majority of primary voters choose to vote in either the Democratic primary or the Republican primary, the law effectively makes it impossible for minor parties to nominate candidates for the legislature. North Dakota has not had any minor party candidates on the legislature since 1976.

The Judge assumed, with no evidence, that any legislative candidate who does not meet the standard must lack any voter support. He did not mention evidence in the case that shows that in other states with open primaries (in which primary voters are free to choose any party’s primary), minor party candidates typically poll very tiny vote totals in the primary but sometimes do very well in the general election. Some of the examples in the evidence are of candidates who got only a dozen or fewer votes in the primary, yet were elected in the general election. Plaintiffs will appeal.

On September 20, Ralph Nader submitted evidence in his lawsuit in state court in Maine against the Democratic National Committee and its allies, for what it did to his 2004 campaign. His evidence consists of 14 affidavits, plus exhibits, for a total of 275 pages. The case is Nader v The Maine Democratic Party, et al, Washington County Superior Court, 2009-57. The hearing was to have started on September 27, 2010, but the judge postponed it to November 5, to give the Defendants more time to digest the evidence.

Part of Nader’s case is that most of the Democratic Party’s challenges to his ballot status in 2004 were not in good faith, and were not sincere. He includes evidence that the Democratic Party challenge to his Maine ballot access could not possibly have been sincere, because Democrats charged that one of his candidates for presidential elector was a fictitious person. The most elementary fact-finding would have showed this was not true.

In New Hampshire, Nader’s evidence includes the finding of the state Ballot Law Commission that the Democratic challenge was utterly without merit. The bipartisan Commission had rejected the challenge on a 5-0 vote. One Commissioner said that the Democratic charges were not only not equivalent to a mountain, they didn’t even amount to a molehill.

In West Virginia, Nader’s evidence shows that the Democratic lawsuit against the Secretary of State for putting Nader on the ballot amounted to nothing but a charge by six voters that the person who asked them to sign the petition mislead them about what the petition was for.

Nader also submitted evidence of dirty tricks against his ballot access efforts, by the Democratic Party and its allies. The evidence includes Pennsylvania petition sheets that are obviously forgeries (every signature on the page is in the same handwriting).

Evidence shows that the people who submitted these phony petitions did so to sabotage the drive. When Nader coordinators eliminated these sheets from their filing, the petitioners who collected them sued the Nader campaign.

In Oregon, the evidence includes affidavits from Nader petitioners about late-night visits to their homes by people who told the volunteer petitioners that they were part of a tainted drive, and that they could be in legal jeopardy if they didn’t stop petitioning. There is also evidence about an organized effort by Nader’s allies to have individuals deliberately sign a Nader petition in the space reserved for the circulator, thus invalidating the entire sheet of petitions. There is somewhat similar evidence from Ohio. Finally, there is a great deal of evidence that the challenge to his Pennsylvania petition depended on state employees, using state databanks, and on state time.

If this evidence is sufficient to rebut the Defendants’ motion to dismiss the case, there will be an actual trial with live witnesses.

On September 22, Chief Justice John Roberts asked the Virginia Board of Elections to respond to an appeal by Herb Lux, an independent candidate for U.S. House. Virginia must respond by September 27. The Court will then act quickly.

The issue is Virginia’s law, making it illegal for anyone to circulate a petition outside of his or her home district. The case is Lux v Rodrigues, 10A298. The U.S. District Court had upheld the restriction on August 23, and the 4^th circuit had then refused to expedite Lux’s appeal.

Lux has a very strong case, because he was barred from circulating his own petition. He is not a resident of the district that he is running in. The U.S. Constitution permits congressional candidates to run in any district in their home state.

On September 23, the U.S. House of Representatives Administration Committee passed HR 6116 by a vote of 5-2, with one abstention. This bill provides for public funding for candidates for the U.S. House. It is almost the same as HR 1826.

Anyone running for U.S. House who raises $50,000 from residents of his or her state may qualify for public funding. The candidate must receive donations from at least 1,500 residents of that state, in amounts ranging from $5 to $100. Individuals may give more, but only the first $100 counts toward public funding. To make it easier for Wyoming residents to qualify, the bill also says that if one-fourth of 1% of the voting age population amounts to a number smaller than 1,500, then the one-fourth of 1% standard applies.

The bill does not discriminate against any candidate on the basis of that candidate’s party affiliation or independent status. Even if this bill does
not pass, the nondiscriminatory aspect of the bill is an important piece of evidence that Connecticut’s discriminatory public funding law is not necessary for any state purpose. Opponents of the Connecticut system plan to ask the U.S. Supreme Court to hear the case against the discriminatory aspects of the Connecticut law. The cert petition in the Connecticut case, which is called Green Party of Connecticut v Lenge, is due December 10.

On September 21, the City Council of Washington, D.C., passed the National Popular Vote Plan. The plan has already passed in Hawaii, Illinois, Maryland, Massachusetts, New Jersey, and Washington, as well. It won’t go into effect until states containing a majority of the Electoral College pass it. Congress is free to veto the action of the City Council during the next two months.

On September 1, the 9^th circuit upheld the disparity in Hawaii’s petition requirements for the two different ways for a minor party or independent candidate to get on the ballot for president. Nader v Cronin, 08-16444. The decision is nine pages.

Hawaii in 2004 required 677 signatures to qualify an entire new party, which would be entitled to its own primary and the ability to run a candidate for every partisan office in the state. By contrast, Hawaii required an independent presidential candidate to submit 3,711 signatures. That may sound easy, but Hawaii invalidates signatures if the signer doesn’t include his or her full birthday, or the last four digits of the Social Security number. Hawaii election officials are also reluctant to validate a signature if the handwriting is poor and takes some effort to read. No independent presidential petition in Hawaii has succeeded since 2000.

In 2004, both Ralph Nader and Michael Peroutka (Constitution Party nominee) submitted independent presidential petitions with approximately twice as many signatures as were required, but both petitions were found not to have enough valid signatures. The two candidates then sued, charging that there can’t be any state interest in requiring them to submit six times as many signatures as are needed for a new party. However, the 9^th circuit has now upheld the disparity.

The 9^th circuit said a presidential candidate who creates a new party, in order to take advantage of the smaller number of signatures, has the burden of establishing that he or she is the nominee of that political party. Therefore, the 9^th circuit said, the two methods are really of approximately equal difficulty. There is no evidence to support that conclusion at all, and it is not true. In 2008, Nader created the "Independent Party" in Hawaii, and had his own party nominate him for president in Hawaii. Nothing about that process was burdensome. The plaintiffs will appeal to the U.S. Supreme Court.

This decision demonstrates that when some judges uphold restrictive ballot access laws, they are not sincerely worried about ballot crowding. Hawaii’s policy has the perverse effect of increasing the number of candidates on the ballot. Because Nader created his own party in Hawaii in 2008, and it had its own primary, several people filed to run in the Independent Party’s primary for Congress and state legislature. If Hawaii had an easier petition requirement for independent presidential candidates, Nader would have used the independent procedure, and those additional congressional and legislative candidates would not have run.

On September 14, a Superior Court Judge in San Francisco, Charlotte Woolard, issued a ruling about write-in votes in California, under the new law that goes into effect on January 1, 2011, Senate Bill 6. Field v Bowen, cgc10-502018. The decision fails to say whether or not write-in space should continue to be printed on general election ballots for Congress and state office. It does say that write-ins are banned.

It would hardly have been possible for the judge to say that write-in space should be removed from the ballot, because California Election Code section 13212 continues to say, "Under the designation of each office shall be printed (on ballots) as many blank spaces, defined by light lines at least 3/8ths of an inch apart but no more than one-half an inch apart, as there are candidates to be nominated or elected to the office."

The decision about write-ins is only two sentences long: "It is constitutional to ban write-ins under U.S. and California Supreme Court precedent, Burdick v Takushi and Edelstein v City and County of San Francisco. When Election Code sections 8141.5, and 8606 are read together, it is apparent that the Legislature intended to ban write-ins at the general election."

Although it is constitutional for states to remove write-in space from the ballot, it is not constitutional to leave write-in space on the ballot but refuse to count write-in votes. The judge did not explore the difference, and seemed uninterested in the case.

In the other issue in the case, she said it is constitutional to let some candidates print their party preference on the ballot, but not other candidates. SB 6 says members of qualified parties should have "My party preference is the (here fill in the name of the party the candidate is registered in)", but members of unqualified parties can only have the label "no party preference."

For this conclusion, she depended on cases from California and Ohio that said that the U.S. Constitution does not require that candidates who qualify for the ballot via the independent candidate procedures have a right to choose a partisan label that would appear on the ballot, other than the label "independent."

But, those cases were from states in which the party label on the ballot tells the voters that that particular party has nominated that candidate. Under California’s new law, the label on the ballot cannot possibly mean that the party has nominated the candidate, or even that the party approves of that candidate. If it did, it would be unconstitutional, under California Democratic Party v Jones, the U.S. Supreme Court decision that struck down blanket primaries if parties object to them.

Under California’s "top-two" system, a ballot label has no function except for the candidate to express his or her political ideas. Under Cook v Gralike, a U.S. Supreme Court decision from 2001 on ballot labels, the state must treat all candidates equally. Judge Woolard did
not mention Cook v Gralike. Her ruling on party labels is very short: "The state may require candidates not affiliated with qualified parties to use the ‘independent’ label. Several federal circuit courts have also held that a state is not constitutionally required to permit candidates to list their preferred party label on the ballot."

On September 8, U.S. District Court Judge Richard Roberts upheld a postal rule making it illegal for anyone to petition on an interior postal sidewalk. Initiative & Referendum Institute v U.S. Postal Service, D.C., 00-1246. Plaintiffs will appeal.

This is the second time Judge Roberts has ruled against petitioning. He had upheld the same regulation in 2003. The D.C. Circuit had then reversed him, as far as sidewalks that are parallel to streets. The D.C. Circuit had sent the case back to Judge Roberts in 2005 for a decision about interior sidewalks.

The judge had then asked both sides to work on a research project, to see if petitioning and other free speech activity is as common on interior postal sidewalks as on post office sidewalks parallel to streets. The research, which consisted of surveys of postmasters, showed that First Amendment activity is approximately equal for both types of sidewalk. That should have helped to win the case, because it would show a traditional public forum. But the opinion disparages the research, saying it is flawed. The opinion doesn’t explain what harm petitioning does to the postal service.

Arizona: on September 9, a U.S. District Court refused to remove eleven Green Party nominees from the ballot, even though the Green Party had asked that he do so. The eleven candidates had been recruited by Republicans to run in the Green Party primary, but they had no connection to activists in the party. These eleven candidates had been write-in candidates in the Arizona Green Party primary. They filed as write-in candidates on the last day, before the Green Party was aware of them and before the party could find bona fide party members to oppose them. Arizona Green Party v Bennett, cv10-1902. The case is still alive. After the decision, six of the eleven withdrew anyway.

California: on September 9, a U.S. District Court ruled that San Francisco’s Instant-Runoff Voting system does not violate the U.S. Constitution. San Francisco only lets voters express their First Choice, Second Choice, and Third Choice. The lawsuit argued that this violates voting rights, and that voters should be allowed to express more choices. Dudum v City and County of San Francisco, 10-504, northern dist.

Colorado: on September 16, a U.S. District Court refused to enjoin a law that says individuals may give $200 to a candidate for the legislature who does not run in a primary, but $400 to a candidate who does run in a primary. Riddle v Ritter, 10-cv-01857. The judge said he wants a state court to construe the law before he decides whether the law is constitutional. He is not sure if the state permits contributions of $400 (to the candidates who had gone through the primary process) after the primary is over. If the law does permit that, it seems obviously discriminatory. The case had been filed by voters who wish to contribute $400 to Kathleen Curry, the legislature’s only independent.

Colorado (2): on August 31, the 10^th circuit upheld the state law barring independent candidates from the ballot (other than presidential candidates) if they have been a member of a qualified party in the year before filing. Curry v Buescher, 10-1265. As a result, the plaintiff, Kathleen Curry, must run for re-election to the legislature as a write-in candidate. The decision is absurd, because the state legislature repealed this restriction this year, but made the change effective next year. Obviously the state doesn’t need this restriction if it has been repealed.

Colorado (3): on September 14, a state district court ruled that Tom Tancredo should remain on the ballot as the gubernatorial nominee of the Constitution Party. Olsen v Tancredo, 2010cv-7060. The lawsuit had been filed by two Republicans, who said the Constitution Party had no right to nominate someone who didn’t join that party until a day or so before the party nominated him.

The judge construed state law to mean that when a qualified party’s nominee withdraws, the party can replace him or her with anyone, regardless of the replacement nominee’s past or present registration.

Illinois: on September 20, U.S. Supreme Court Justice Stephen Breyer denied the request by U.S. Senator Roland Burris to alter the ballot in the special election for U.S. Senate. The term for the special election is two months. The U.S. District Court Judge who told the state to hold the special election had also said that the state should print candidates on the ballot in that election who are also running in the regular term election. Senator Burris isn’t running for a new 6-year term, but he did want to run for the two-month term. His case is still alive but he won’t get any injunctive relief. Burris v Judge, 10-367.

Michigan: on September 3, the state Court of Appeals upheld the ballot access law on how minor parties get on the ballot, in a challenge filed by the Socialist Party. The party had complained that the number of signatures to get a new party on the ballot is twice as high as the number of votes needed for an old party to remain on the ballot. The decision is only two pages, and the judges didn’t even seem to understand the issue. On September 24 the party asked for a rehearing. Socialist Party of Michigan v Secretary of State, 10-867-CZ.

New Mexico: on September 9, the 10^th circuit agreed with the U.S. District Court that neither Alan Woodruff, nor Daniel Fenton, should be on the ballot as candidates for Congress, even though the two candidate-plaintiffs had won a declaratory decision that certain state ballot access laws are unconstitutional, back on December 11, 2009. As a result, New Mexico is the only state this year with no minor party or independent candidates on the November ballot for any statewide race or any U.S. House race. Woodruff v Herrera, 10-2076. Even Washington state has one independent candidate on the ballot for U.S. House, 7^th district, because no Republican ran, so the independent placed 2^nd.

In this year’s electio
n, the Republican Party has not nominated anyone for 16.9% of the state legislative races, and the Democratic Party has not nominated anyone for 19.2% of those races. This means that in 36.1% of the races, there is no contest between a Democrat and a Republican. See the second chart.

The chart below shows totals for recent past elections:

~	Seats	Dem.	Rep.	Minor	Indp.
2010	6,103	4,976	5,120	611	304
2008	5,773	4,887	4,378	501	183
2006	6,159	5,178	4,824	576	148
2004	5,795	4,645	4,703	765	160
2002	6,230	5,139	5,022	1,084	188

As the chart shows, there are more independent candidates for the legislature in 2010 than at any other time in the past decade. The chart does not count any candidate more than once. When candidates are nominated by two parties, that candidate is only credited with the party of which the candidate is a member.

For the chart below, the parties in the "Other(1)" column are: Alaskan Independence in Alaska; Peace & Freedom in California; Independent Party in Connecticut and Delaware; Tea Party in Florida; Iowa Party in Iowa; Reform Party in Kansas; Socialist Equality in Michigan; Independence in Minesota; Conservative in New York; Independent Party in Oregon; Reform in Pennsylvania; Moderate in Rhode Island; Labor in South Carolina; Progressive in Vermont. Parties in the "Other(2)" column are: Ct. for Lieberman in Connecticut; Blue Enigma in Delaware; in New York, 5 Independence, 1 Reform, and 1 Right to Life; Vermont, one Socialist and one Independence.

~	# seats	Repub.	Demo.	Lib’t.	Constit.	Green	Wk Fam	oth(1)	oth(2)	indp.
Alab.	140	103	101	0	1	0	0	0	0	8
Alaska	50	38	40	3	0	0	0	1	0	3
Ariz.	90	73	68	10	0	10	0	0	0	0
Ark.	117	64	92	0	0	3	0	0	0	6
Calif.	100	94	97	22	2	5	0	6	0	0
Colo.	84	83	72	7	1	0	0	0	0	1
Conn.	187	161	169	2	0	8	5	9	5	9
Del	53	43	45	5	0	0	0	1	1	1
Florida	143	114	98	1	0	0	0	15	0	21
Ga.	236	161	153	0	0	0	0	0	0	1
Hawaii	64	62	61	1	0	0	0	0	0	0
Idaho	105	103	60	4	2	0	0	0	0	3
Illinois	139	95	124	0	0	8	0	0	0	1
Indiana	125	119	96	34	0	1	0	0	0	1
Iowa	125	112	97	3	0	1	0	1	0	4
Kansas	126	111	88	13	0	0	0	1	0	1
Ky.	119	96	91	2	1	0	0	0	0	6
Maine	186	181	180	0	0	12	0	0	0	12
Md.	188	139	180	6	2	0	0	0	0	0
Mass.	200	104	188	2	0	2	0	0	0	37
Mich.	148	148	145	44	8	5	0	1	0	16
Minn.	201	201	197	0	4	1	0	16	0	4
Mo.	180	149	133	12	20	0	0	0	0	6
Mont.	126	116	102	6	5	1	0	0	0	2
Nevada	53	52	50	6	18	0	0	0	0	0
N.H	424	401	378	3	0	0	0	0	0	2
N.M.	70	51	53	1	0	0	0	0	0	0
N.Y.	212	180	195	2	0	5	4	21	7	2
No.C.	170	157	129	6	0	0	0	0	0	3
No.D.	72	69	55	0	0	0	0	0	0	4
Ohio	116	109	108	28	3	3	0	0	0	13
Okla.	125	103	78	0	0	1	0	0	0	3
Ore.	76	74	72	2	2	2	1	4	0	1
Pa.	228	188	178	10	1	5	0	1	0	14
R.I.	113	73	111	0	0	0	0	4	0	33
So.C.	124	88	72	8	4	3	0	1	0	1
So.D.	105	91	75	0	1	0	0	0	0	12
Tenn.	116	99	84	2	0	0	0	0	0	17
Texas	166	128	103	50	0	2	0	0	0	2
Utah	90	90	74	9	20	0	0	0	0	1
Vt.	180	132	150	1	0	0	0	6	2	23
Wash.	123	110	98	0	1	0	0	0	0	7
W.V.	117	85	105	2	0	3	0	0	0	4
Wisc.	116	102	97	7	2	1	0	0	0	16
Wyo.	75	68	34	4	0	0	0	0	0	3
TOT	6103	5120	4976	318	98	82	10	88	15	304

Four states don’t elect state legislators this year: Louisiana, Mississippi, New Jersey, Virginia. Nebraska has non-partisan legislative elections. Therefore, those five states aren’t listed above.

For a few days in September, the Libertarian Party appeared to have a realistic chance to possibly win one or two congressional elections this year. In Alaska, U.S. Senator Lisa Murkowski seems to have been willing to accept the Libertarian Party nomination for U.S. Senate, after she was defeated in the Republican primary. The original Libertarian Party nominee for U.S. Senate in Alaska seemed willing to withdraw, and the party was legally permitted to substitute Murkowski. But the party decided not to nominate Murkowski, and she will now be a write-in candidate.

Almost simultaneously, Wink Hartman, who had lost a Republican primary for U.S. House in Kansas, 4^th district, considered accepting the Libertarian nomination for that same seat. The original Libertarian Party nominee had withdrawn (he was later replaced by another Libertarian), and the party was permitted to nominate Hartman. But in the end, Hartman decided not to run. Hartman is a millionaire who would have run to win.

The Labor Party was formed in 1990 by Tony Mazzocchi, a prominent labor leader. Until 2010, it had never run a candidate for partisan office. But this year, it is running Brett Bursey for South Carolina House of Representatives, district 69. He has a Democratic and a Republican opponent. The Labor Party, unlike the Working Families Party, refuses to cross-endorse major party nominees.

A Gallup Poll released on September 19 shows that 58% of the public feels a major new party is needed, whereas 35% do not, and 7% are undecided.

---

SUBSCRIBING TO BAN WITH PAYPAL

If you use Paypal, you can subscribe to B.A.N., or renew, with Paypal. If you use a credit card in connection with Paypal, use richardwinger@yahoo.com. If you don’t use a credit card in conjunction with Paypal, use sub@richardwinger.com.