RECORD NUMBER OF STATES WITH INCLUSIVE TELEVISED DEBATES FOR GOVERNOR, U.S. SENATOR

In 2010, there are more states in which major party nominees for Governor, U.S. Senate, and U.S. House-at-large have debated minor party or independent opponents on television than ever before.

The number of states with inclusive debates for these three important offices this year is 25. The previous high had been 24, in 2002. There had been 19 inclusive states in 2006, 19 states in 1998, and 20 in 1994. Exact figures are not available for midterm years 1990 and earlier, but the number of minor party and independent candidates was considerably lower in the period 1950-1990, and of course broadcast television did not exist before 1950.

This year, there are 40 states that have gubernatorial, U.S. Senate, or U.S. House-at-large elections, in which there are minor party or independent candidates on the ballot, and in which any debates for those offices have been held. Thus, the "inclusive" states this year outnumber the "exclusive" states, 25 to 15. See below for the list of states and the details for each state.

Ohio isn’t on the "inclusive" category because its U.S. Senate and gubernatorial debates were all exclusive. But Ohio did hold inclusive debates for two lesser statewide offices, Secretary of State and Auditor.

Presidential election years always see fewer debates (whether inclusive or exclusive), because so few states hold gubernatorial elections during presidential election years.

The reason there are more states this year holding inclusive debates is probably that there are so many high-profile minor party and independent candidates for Governor and U.S. Senator. Also, many polls have shown that voters like inclusive debates.

On September 28, the U.S. House passed HR512 by 296-129. It prohibits the Chief Election Officer of a state from taking an active part in the campaign of any candidate for federal office. The bill may get a vote in the Senate when Congress returns after the election. There is an exception if the candidate is a close relative.

A trial is scheduled for November 15 in Washington State Republican Party v Washington State Grange, cv2:05-927. It is conceivable that U.S. District Court Judge John C. Coughenour will cancel the trial, because both sides have asked for summary judgment based on the evidence presented so far. But it is more likely that the trial will go forward.

The political party plaintiffs have submitted experimental evidence that a substantial number of voters are confused by the "top-two" system. The political scientist who performed the experiments, Mathew Manweller, concluded, "If you put the word ‘Republican’ under a candidate’s name on a state ballot, there is a portion of the population that will believe that that candidate is associ
ated or the nominee of the Republican Party." He found that 57% of new voters perceived the candidates on the ballot were nominees of the political parties, and 85% believed they were at least affiliated with that party. These results obtained even when the experimental subjects were looking at a ballot that has the language the Secretary of State places on ballots, saying that neither is necessarily true.

Under the U.S. Supreme Court’s March 2008 decision in this same case, the "top-two" system is unconstitutional if voters do not understand that "party preference" on the ballot, next to the name of various candidates, doesn’t mean anything about the party’s acceptance or association with that candidate.

The Secretary of State countered this evidence with a report by Political Science Professor Todd Donovan, criticizing the methology of Professor Manweller.

But then the political parties submitted a report by Professor John M. Orbell, a multi-disciplinary expert on social science research. Orbell said that Donovan’s criticism only relates to survey research, not experimental research. He pointed out that whereas many other types of social scientists use experiments (especially psychologists), few Political Science professors perform experiments.

The parties also submitted numerous newspaper articles, showing that even the press tends to assume that candiates with "I prefer the Democratic Party" on the ballot really are Democrats; the same is true for other parties.

The state counters that this is all subjective evidence, and that voters in general are generally confused under any system, and that all that matters is that the state has done everything it can to dispel the confusion.

The co-plaintiff Libertarian Party submitted evidence on the ballot access argument, showing that in the 773 instances when minor party members ran in "top-two" primaries or blanket primaries, they only placed first or second in the first round two times (except in instances when only one major party member was running). This evidence is from Louisiana, Washington, and California.

Ever since 1999, when the U.S. Supreme Court ruled that states can’t require petitioners to be registered voters (Buckley v American Constitutional Law Foundation), many lower courts have struck down residency requirements for circulators. These victories have been won in Arizona, California, Colorado, Connecticut, Idaho, Illinois, Kansas, Michigan, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, and Wisconsin. These victories had also been bolstered by a 1988 U.S. Supreme Court decision (Meyer v Grant) that said states can’t ban paid circulators.

But, earlier this year, courts in Virginia and Pennsylvania bucked that trend, and upheld residency requirements. During the last 30 days, however, both the U.S. Supreme Court and the Pennsylvania Supreme Court have hinted that these requirements are likely unconstitutional.

Virginia

The U.S. Supreme Court became involved in a case from Virginia, Lux v Rodrigues. The case had been filed on July 13, 2010, by Herb Lux, an independent candidate for U.S. House who was kept off the ballot because the state wouldn’t check his signatures, because he had collected most of them, and he isn’t a resident of his own district. Although he is permitted to run in a district where he doesn’t live, he is not permitted by state law to collect signatures on his own petition because only district residents may collect signatures for that office. Ironically, if he were running for U.S. Senate, he could have collected signatures on his own petition, anywhere in the state.

The U.S. District Court upheld the Virginia residency requirement, and the 4^th circuit refused to expedite the case. So Lux asked the U.S. Supreme Court for an injunction to require elections officials to check all his signatures, and to put him on the ballot if he had the needed 1,000 valid signatures, regardless of who collected them.

Because the U.S. Supreme Court was still on its summer recess, his request went to Chief Justice John Roberts. On September 30, Roberts refused to give Lux injunctive relief. Roberts said that injunctive relief from a single judge of the U.S. Supreme Court is an extraordinary remedy that should only be granted if it is already obvious that the lower court made an error. But Roberts said, in his 3-page order, "Lux may very well be correct that the Fourth Circuit precedent relied on by the District Court (an opinion that is 25 years old and was not directly on point) has been undermined by our more recent decisions addressing the validity of petition circulation restrictions…but even if the reasoning in Meyer and American Constitutional Law Foundation does support Lux’s claim, it cannot be said that his right to relief is ‘indisputably clear’."

Virginia argues that if a candidate uses out-of-district circulators, that means the candidate doesn’t have support within the district. But that argument is undercut by the 1988 U.S. Supreme Court decision that struck down the ban on paying circulators. Because any candidate is free to pay anyone who lives in the district to circulate the petition, it can no longer be said that the ability to find circulators is a measure of how much support a candidate has. The test of support is whether voters in a district are willing to sign the petition.

Lux filed his 4^th Circuit brief on October 26.

Pennsylvania

On August 18, a lower state court had ruled that an independent candidate for the legislature should be off the ballot because he had used an out-of-district circulator. This was shocking, because the law requiring in-district circulators had been ruled unconstitutional in federal court in 2002, and the state had not appealed.

On October 4, the Pennsylvania Supreme Court issued a unanimous opinion in the current case, In re the Nomination Petitions of Carl Stevenson, 54 MAP 2010.

The opinion is sharply critical of the lower court. Although the Supreme Court didn’t put Stevenson on the ballot, it asked the lower court to assume that signatures collected by a non-resident are valid, and to re-check the petition to see if he had enough. The Supreme Court said, "Neither the lower court nor appellees (i.e., the challengers) have forwarded any substantive justification of the court’s rejection of appellant’s First Amendment argument…The (lower) Court never offered any substantive evaluation of First Amendment principles to support its rejection of appellant’s argument, and the cases it cites likewise do not en
gage the merits of appellant’s First Amendment argument…the Court didn’t engage his arguments in meaningful fashion…There is nothing in the record or the pleadings below providing a basis for this Court to affirm the existing decision removing appellant from the ballot."

The case then went back to the lower court, but to a different judge, who then checked all the signatures, even the ones collected by an out-of-district circulator. Unfortunately, even after all the signatures were checked, the candidate was still short eight signatures, so he will not be on the ballot. But it is likely that no Pennsylvania court will again say that out-of-district circulators are illegal.

Election Data Services has estimated the following changes, in 2011, for the number of U.S. House seats that each state will have, based on early data from the 2010 census.

Eight states may gain the following number of seats: Texas (4), Florida (2), and one each for Arizona, Georgia, Nevada, South Carolina, Utah and Washington. Ten states will lose: New York (2), Ohio (2), and one each for Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, and Pennsylvania. This is only tentative, because the final census data is still unknown.

On September 14, when a Superior Court heard argument about two aspects of the new "top-two" system set to go into effect in California in 2011, attorneys for Lieutenant Governor Abel Maldonado argued vociferously that it is constitutional for the new system to force candidates who are registered members of unqualified parties to be given no party label on the ballot. Instead, their label must be "No party preference."

The Superior Court tentatively agreed that it is constitutional to deprive such candidates of a party label, even though candidates who are members of qualified parties may have one.

But on October 8, attorneys for Maldonado filed a brief in the State Appeals Court that completely changes his position. Now he says that the law actually does permit party labels for members of unqualified parties. This is good news. However, the state and the counties who are defendants continue to insist that the law does not permit labels for members of unqualified parties. The case is Field v Bowen, and both the Superior Court and the Appeals Court refused any injunctive relief, partly because the "top-two" system still isn’t in effect.

On September 30, the Maryland State Court of Appeals voted 5-2 to put a referendum on the ballot even though election officials had said it doesn’t have enough valid signatures. Montgomery County Volunteer Fire-Rescue Assn v Montgomery Co. Bd. Of Elections, no. 86.

The issue is whether signatures must be exact matches for that voter’s name as shown on voter registration records. Elections officials had invalidated signatures in which the voter used a middle initial on the voter registration form but not on the petition, or vice versa; or had used abbreviations of first names in one place but not the other.

Election officials thought they were following the law has interpreted several years ago by the Appeals Court, but it is now obvious that the Appeals Court never intended that. The Court will explain the reason for its order in the near future.

Arkansas: on September 20, the Green Party appealed to the 8^th circuit, in its case over the vote test for a party to remain ballot-qualified. Green Party of Arkansas v Daniels, 10-3106.

California: opponents of San Francisco’s Instant Runoff Voting system have appealed to the 9^th circuit, in their attempt to invalidate it. Dudum v San Francisco, 10-17198.

Delaware: a Libertarian Party nominee for the state legislature, William McVay, also tried to run in the September major party primaries for the same office. Delaware permits fusion and seems to have no law against that practice, but the major parties objected and he was kept out of the major party primaries. After the election the State Supreme Court will hear his lawsuit, McVay v Dept. of Elections for Kent County, no. 528.

Illinois: on October 4 the State Appeals Court upheld a law that says if someone circulates for a candidate of one party in the primary, that person can’t circulate for another candidate (even for another office) in the general election. If the case had gone the other way, the Constitution Party would have been on the ballot. It missed by only 65 signatures, out of 25,000. The party will appeal to the State Supreme Court. Constitution Party v State Board of Elections.

Illinois (2): on October 4, the 7^th circuit affirmed a decision of a U.S. District Court, upholding the lower court’s order saying that no one could run in the special U.S. Senate election except people who are running in the long-term Senate election. Senator Roland Burris will ask for U.S. Supreme Court review, even though it is now too late for him to benefit personally. Judge v Quinn, 10-367.

Maine: on October 19, independent gubernatorial candidate Alex Hammer asked the State Supreme Court to hear his appeal. He had lost in Penobscot County Superior Court on September 28. The issue is whether a candidate may scan petitions and transmit them electronically to various town clerks, instead of physically transporting them. Maine is one of the few states that requires petitions to be taken to each town for checking. Hammer v Office of Secretary of State, AP2010-15.

Michigan: the Socialist Party is appealing to the State Supreme Court, in its case charging that the state may not require more signatures for a new party to get on the ballot, than the number of votes an old party needs to remain on the ballot. The State Appeals Court had denied a rehearing on October 15. Socialist Party of Michigan v Land.

New York: on October 15, a U.S. District Court refused to issue an injunction in Conservative Party v Board of Elections, 10cv-6923. The Conservative and Working F
amilies Parties filed the lawsuit because if a voter votes for a candidate twice for the same office, once on a major party line and once on a minor party line, the vote will be counted only for the major party. The judge said the case had been filed too late to get any relief. The case will continue.

North Dakota: on October 1, the Libertarian Party appealed to the 8^th circuit in Libertarian Party v Jaeger, 10-3212. The issue is a law that requires between 10% and 15% of all primary voters to choose a minor party primary ballot, if the party wants to run legislative candidates.

Vermont: the lawsuit Trudell v Markowitz will not receive a decision until next year. It was filed in state court on August 25, 2010, to challenge the state’s new June petition deadline for independent candidates (the deadline had been September until this year). There was to have been a hearing on October 1, but the heavy rains caused the court to cancel the hearing, and a new hearing date still hasn’t been set.

Alaska: Lisa Murkowski, write-in candidate for Senate, debated on October 11.

Arizona: the Libertarian and Green nominees for Senate debated on September 26. The Libertarian and Green gubernatorial nominees debated on September 1.

Arkansas: the Green for Governor debated on October 12. The Green and independent for Senate debated on October 13.

California: gubernatorial and Senate debates have been exclusionary.

Colorado: the Constitution Party nominee for Governor has debated ten times.

Connecticut: the Independent Party gubernatorial candidate debated on September 28.

Delaware: the Senate debate of October 14 was exclusionary.

Florida: all Senate debates have included independent Charlie Crist.

Georgia: the Libertarian nominee for Governor debated on October 14. There have been no Senate debates.

Hawaii: the gubernatorial debates of October 14 and 22 were exclusionary. There have been no Senate debates.

Idaho: the October 13 gubernatorial debate included independent candidate Jana Kemp.

Illinois: the October 14 gubernatorial debate included the Green Party nominee.

Indiana: the October 11 Senate debated included the Libertarian.

Iowa: the gubernatorial debate was exclusionary, and there have been no Senate debates.

Kansas: the October 7 gubernatorial debate included the Libertarian and Reform Party nominees. There has been no Senate debate.

Louisiana: the October 27 Senate debate was exclusionary.

Maine: all three independent gubernatorial candidates were in the October 11 debate.

Maryland: the gubernatorial debates have been exclusionary. There has been no Senate debate.

Massachusetts: the October 15 gubernatorial debate included the Green and the independent candidates.

Michigan: the October 10 gubernatorial debate was exclusionary.

Minnesota: the Independence Party gubernatorial nominee has been in all twenty debates.

Missouri: the Libertarian and Constitution nominees for U.S. Senate were in the October 15 debate.

Montana: the Libertarian was in the October 15 debate for House-at-large.

Nevada: both the Senate and gubernatorial debates were exclusionary.

New Hampshire: both the Senate and gubernatorial debates were exclusionary.

New York: the October 18 gubernatorial debate included all seven candidates on the ballot.

North Carolina: the October 13 Senate debate included the Libertarian.

North Dakota: the September 30 Senate debate was exclusionary.

Ohio: the gubernatorial and Senate debates were exclusionary.

Oregon: the gubernatorial and Senate debates were exclusionary.

Rhode Island: the October 6 gubernatorial debate included the Moderate Party nominee and the independent candidate.

South Carolina: the gubernatorial debate was exclusionary, and there has been no Senate debate.

South Dakota: the September 5 debate for House-at-Large included the independent candidate.

Tennessee: the gubernatorial debate was exclusionary.

Texas: the October 19 gubernatorial debate included the Libertarian and Green nominees, although they only debated the Democratic nominee; the Republican refuses to participate until the Democrat releases old tax returns.

Utah: the September 16 Senate debate included the Constitution Party nominee.

Vermont: the October 14 Senate debate included the Socialist and independent candidates. The October 7 gubernatorial included the Liberty Union nominee as well as three independent candidates.

West Virginia: the October 18 Senate included the Green and Constitution Party nominees.

Wisconsin: the Senate and gubernatorial debates were exclusionary.

Wyoming: the October 12 gubernatorial debate included the Libertarian.

WHY 10 STATES AREN’T LISTED ABOVE

The list above explains whether debates for Governor, U.S. Senator, or U.S. House-at-Large have included minor party or
independent candidates in debates with the major party nominees. But the list above omits twelve states.

This is because inclusive debates for those three offices would be impossible: in Alabama, Kentucky, New Mexico, Pennsylvania, and Washington, there are no minor party or independent candidates on the November ballot for statewide office. In Mississippi, New Jersey, and Virginia, there are no statewide races. And in Nebraska and Oklahoma, no debates have been held for the statewide offices that have minor party or independent candidates on the ballot.

The chart on page five shows the vote tests that affect whether parties become, or remain, ballot-qualified. Some states have two types of vote test, and the charts lists both. The "Gain?" column lists parties that are not now ballot-qualified, by which may become qualified if they meet that vote test. "Retain?" lists parties that are now qualified, but where they may lose that status if they fail the vote test. "Immune" means that party has fulfilled some other task, and it doesn’t need to worry about meeting the vote test.

~	STATUS TYPE	VOTE TEST	GAIN?	RETAIN?	IMMUNE
Alab.	Primary	20% any statewide	– –	– –	– –
Alas.	Primary	3% Governor	– –	– –	Libt, Ak Indpc
Ariz.	Primary	5% Governor	– –	Green	Libt
Ark.	Primary	3% Governor	– –	Green	– –
Cal.	Primary	2% any statewide	– –	Libt, P&F	AIP, Green
Colo.	Convention	1% any statewide	– –	Constitution	Libt, Green
Colo.	Primary	10% Governor	Constitution	– –	– –
Conn	Convention	1% each office	WF, Independent	Green, Libt	– –
Conn.	Primary	20% Governor	WF, Independent	– –	– –
D.C.	Primary	7,500 any	– –	Green	– –
Ga.	Statewide Only	1% any statewide	– –	Libt	– –
Ga.	Primary	20% Governor	Libt	– –	– –
Hi.	Primary	10% any statewide	– –	Green	Libt
Id.	Primary	3% any statewide	– –	– –	Libt, Consti
Ill.	Statewide Only	5% any statewide	Libt	Green	– –
Ill.	Primary	5% Governor	Libt	Green	– –
Ind.	Convention	2% Sec. of State	– –	Libt	– –
Ind.	Primary	10% Sec. of State	Libt	– –	– –
Iowa	Primary	2% Governor	Libt,SWP,Iowa	– –	– –
Kan.	Convention	1% any statewide	– –	Libt, Ref	– –
Kan.	Primary	5% Governor	Libt, Reform	– –	– –
Me.	Primary	5% Governor	– –	– –	Green
Md.	Convention	1% Governor	– –	Grn, Libt, Consti	– –
Mass.	Primary	3% any statewide	Green	Libt	– –
Mich.	Convention	½ of 1% any stwd	– –	Lb, Gr, Const, NL	– –
Mich.	Primary	5% any statewide	Lb,Gn,Const,NL	– –	– –
Minn.	Primary	5% any statewide	Grn,Grassroots	– –	Independence
Mo.	Primary	2% any statewide	– –	Libt	Consti
Mt.	Primary	3% any statewide	– –	Consti	Libt
Neb.	Primary	5% any statewide	– –	Libt	– –
Nev.	Convention	1% any statewide	Green	Libt	Consti
N.H.	Primary	3% any statewide	Libt	– –	– –
N.M.	Convention	½ of 1% Governor	– –	Consti	Libt,Independent
N.Y.	Primary	50,000 for Gov.	Libt, Grn, Anti	WF, Indpc, Consrv	– –
NoD.	Primary	5% Sec. of State	– –	Libt	– –
Okla	Primary	10% Governor	– –	– –	– –
Ore.	Convention	1% any statewide	– –	Consti, WF, Prog	Libt,Gr,Indpt
R.I.	Primary	5% Governor	– –	Moderate	– –
S.D.	Primary	2.5% Governor	– –	Consti	– –
Texas	Convention	5% any statewide	– –	Libt, Green	– –
Texas	Primary	2% Governor	Libt, Green	– –	– –
Utah	Primary	2% any statewide	– –	Libt, Consti	– –
Vt.	Primary	5% any statewide	LU, Libt,Soc	Progressive	– –
Wis.	Primary	1% any statewide	Constitution	Libt, *Green	– –
Wyo.	Convention	2% several	– –	Libt	– –
Wyo.	Primary	10% several	Libt	– –	– –

This chart shows vote tests that determine whether a party either gains or retains qualified status. "WF" = Working Families Party; "LU" = Liberty Union; "Anti" = Anti-Prohibition; "NL" = Natural Law.

At the November 2, 2010 election, 81.9% of the voters will see at least one Libertarian on the ballot. As is usual, the Libertarian Party is on more ballots than any other minor party.

Also at the 2010 election, 54.6% of the voters will see at least one Green Party nominee; and 39.0% will see a Constitution Party nominee (although that party has different names in different states).

There is no ballot-listed national party called the Tea Party, but 7.3% of the voters will see candidates with a Tea Party label, in Florida, Nevada and part of New Jersey. Also, 8.8% of the voters will see a Working Families nominee on their ballots, although most of those nominees are also Democratic Party nominees. And 9.5% of the voters will see an Independence Party nominee on their ballots, in Minnesota, New York, and South Carolina, although those three state Independence Parties are not associated with each other.

On October 12, Laura Wells, Green Party nominee for California Governor, was arrested merely for trying to sit in the audience of the gubernatorial debate between Jerry Brown and Meg Whitman. She was given a ticket, and the tickets did not name the ticket-holder. She cleared one round of security, but at a second round, she was ejected. When she questioned the ejection, she was arrested. Other individuals who had been given a ticket were not stopped and were allowed to sit in the audience. Wells may bring a lawsuit, similar to one that Ralph Nader brought in 2000 when he was ejected from the audience of one of the presidential debates (although Nader was not arrested). The Nader lawsuit was settled by the Commission on Presidential Debates sending him a letter of apology.

Since 1987, the Commi
ssion on Presidential Debates, a private group, has been hosting the only general election presidential debates in which major party nominees have been willing to appear. On September 30, Congress passed S.3196, and President Obama has since signed it into law. It says presidential candidates who have a realistic chance of being elected may receive government funding before the election, to help prepare for a possible transition into office. The new law gives the Administrator of the General Services Administration the authority to choose which presidential candidates qualify. The law says the GSA should be guided by the Commission on Presidential Debates’ decision as to whom to admit into debates.

North Carolina is holding a non-partisan statewide election for a State Court of Appeals post. Thirteen candidates are running for one open seat. The state has apparently not done much work to publicize IRV, and reports from early voting suggest that many voters don’t understand it. Some voters vote for multiple candidates in the part of the ballot reserved for recording a first choice vote. The State Board of Elections is aware of the problem and has re-designed that part of the ballot. This will be the first statewide general election in U.S. history, in any state, to use IRV.

At the September Republican primary in Massachusetts, voters nominated a candidate for Attorney General with write-in votes. State law requires a write-in candidate for that office at a primary to not only win more votes than anyone else, but to receive at least 10,000 write-ins. James McKenna received 27,711 write-ins. This is the first time a statewide candidate has been nominated by write-in votes in Massachusetts.

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