BALLOT ACCESS BILLS ADVANCE IN NINE STATES

Alabama: on March 8, the Senate Elections Committee passed SB 17 unanimously. It lowers the number of signatures for a party to get on the ballot from 3% of the last gubernatorial vote (44,829 signatures) to exactly 5,000 signatures. It also lowers the number of signatures for a non-presidential independent candidate to 1.5% of the last gubernatorial vote. That improvement for independent candidates applies to all independent candidates running for Congress or state office, but it does not apply to county office.

Arizona: on March 14, the Arizona House passed HB 2304. On March 21, the Senate Judiciary Committee passed it. The bill says that when a party qualifies by petition, it is automatically ballot-qualified for the next two elections. If this bill becomes law, the Green Party will be on the 2012 ballot, since it petitioned in 2010. Another improvement in the bill legalizes out-of-state petitioners for all types of petition. Currently, the state says out-of-staters can circulate for an independent presidential candidate, but they can’t work on any other type of petition.

Unfortunately, the House amended the bill before passing it, to delete the part that lowers the number of signatures for members of newly-qualifying parties to get on their own party’s primary ballot.

Idaho: on March 18, the House State Affairs Committee passed HB 275, which lowers the number of signatures for a presidential independent candidate from 1% of the last presidential vote (6,552 signatures) to exactly 1,000 signatures. HB 275 contains many other election law changes, and is backed by the Secretary of State. The number of signatures is being reduced because last year, the old law was held unconstitutional.

Maine: on March 4, the Joint Committee on State and Local Government passed LD 142. Existing law says a qualified party must hold county caucuses each even-numbered year in each of the sixteen counties in the state. This is a difficult job for small qualified parties. The bill says the party must hold such caucuses in any twelve of the sixteen counties.

Maine (2): on March 23, the same Committee heard LD 545, to lower the number of signatures for a candidate to get on the primary ballot of a small qualified party. Existing law requires 2,000 signatures for statewide office, and only party members may sign. The bill says the number of signatures should be the lower of 2,000, or 2% of the number of registered voters in that party. The bill got a good reception.

Nebraska: on March 16, LB 399 was signed into law. It eliminates the county distribution requirement for non-presidential statewide independent candidates (there never was a county distribution requirement for independent presidential candidates).

Statewide non-presidential independent candidates still need 4,000 signatures. But they no longer need 50 signatures from each of 31 counties. Instead, they need 750 signatures from each of the 3 U.S. House districts. Now it will be possible for an independent to get all signatures in as few as three counties. This improvement is being made because a lawsuit against the county distribution requirement is pending, and the state fears it will lose the lawsuit.

New Mexico: on March 19, the legislature passed SB 403. It cuts the number of signatures to get a new party on the ballot in midterm years from one-half of 1% of the last presidential vote, to one-half of 1% of the last gubernatorial vote.

If t
his bill had been in effect in 2010, the new party petition would have needed 2,796 signatures instead of 4,151 signatures. Also, the bill moves the independent candidate petition deadline from early June to late June. And it says petitions to get a new party on the ballot must be available at all times.

Oklahoma: on March 17, the Oklahoma House passed HB 1058 by a vote of 69-17. It lowers the number of signatures for a new party from 5% of the last vote cast (51,379 signatures for 2012), to exactly 22,500 signatures. All of the "No" votes were from Republicans, except for one Democrat. Most of the bill’s sponsors are Republicans.

Even 22,500 signatures is a tough requirement, which works out to 2.1% of the 2010 gubernatorial vote.

Tennessee: on March 15, the Senate State and Local Government Committee passed SB 935. It makes minimal improvements in the law on how parties get on the ballot.

The existing law, which was struck down last year, required a petition signed by 2.5% of the last gubernatorial vote, due in March. The bill does not reduce the number of signatures, but moves the deadline to early April. Also the bill deletes the language on the petition that implies all the signers are members of the party. The court ruling last year said that a petition deadline four months before the primary is too early. The primary is in August so this bill, if passed, would still leave an unconstitutional deadline in place.

The bill was set to pass the Senate on consent on March 21, but then the bill was removed from the consent calendar. This may mean that it will be amended to improve it, either with fewer signatures or a later deadline.

Utah: on March 11, the legislature passed HJR 24. It authorizes a study of about two dozen election law changes, including whether to liberalize the definition of "political party" from a group that got 2% for any statewide race in the last election, to a group that got 2% in either of the last two elections. Currently it is tough for minor parties to remain ballot-qualified in midterm years, because there is usually only one statewide race on the ballot in midterm years, U.S. Senate. All of Utah’s state statewide posts are up in presidential years.

On March 2, a U.S. District Court ruled that if the Idaho Republican Party doesn’t want non-members voting in its primary, then it has a right to keep them out. Idaho Republican Party v Ysursa, 08-cv-165.

Idaho doesn’t have registration by party, and under current law, any voter is free to vote in any party’s primary. The decision is based on the 2000 decision of the U.S. Supreme Court, California Democratic Party v Jones, which said that if a party didn’t want members of other parties helping choose its nominees, it could exclude them.

Idaho will not appeal the ruling, and the legislature is working on amending the law to implement the decision. The new law will undoubtedly let each party decide if it wants to let independents vote in its primary. The Democratic Party has already said will let anyone vote in its primary. The Republican Party hasn’t yet decided whether to let independents vote in its primary, but it doesn’t want members of other parties voting in its primary. The two ballot-qualified minor parties, the Libertarian Party and the Constitution Party, are also satisfied with an open primary for themselves. The bill to implement the changes will be introduced in early April.

On March 8, U.S. District Court Judge Beryl Howell ruled against the Libertarian Party, which was seeking an order to require the District of Columbia Board of Elections to count write-in votes for Bob Barr in the 2008 election. Libertarian Party v D.C. Board of Elections, 09-cv-1676. Barr was not on the ballot in D.C., but he filed as a write-in candidate, and submitted candidacy declarations for three candidates for presidential electors. This was in accordance with D.C.’s own law.

Judge Howell said the burden on the voters who voted for Barr, and whose write-ins weren’t counted, is "slight", and that counting the votes would be expensive and time-consuming. The party will appeal.

Although the U.S. Supreme Court ruled in 1992 in Burdick v Takushi that states need not print write-in space on ballots, there are no precedents that it is constitutional to refuse to count valid votes. Furthermore, in 1975, a court in the D.C. court system had ordered the D.C. Board of Elections to count the write-in votes of presidential candidates who filed a slate of presidential elector candidates.

In 2004, the Green Party had filed a lawsuit to force the Board of Elections to count write-in votes in its presidential primary. The court had ruled in favor of the Green Party, on the basis that the party needed the write-in count, in order to determine which candidates for Delegate to the national convention had been elected.

Because the 2004 decision, called Best v D.C. Board of Elections, seemed to depend on the fact that the write-in tally was needed for a specific practical reason, Judge Howell in the recent opinion inferred that when there is no specific practical need for the vote tally, no such tally need be made.

Only after the decision come down did the Libertarian Party discover that a federal law requires all states, and D.C., to submit a report to the National Archivist, telling exactly how many votes each candidate for presidential elector had received at each election. That law is section 6 of Title 3, U.S. Code. The party’s appeal brief will mention this federal law.

On March 17, the Libertarian Party filed a lawsuit against a federal campaign law that will not let the party immediately receive a bequest of $217,734. Instead, the Federal Election Commission says the money must be put in an escrow account, and the party can have $30,800 each calendar year, until the fund is exhausted. The lawsuit is Libertarian National Committee v Federal Election Commission, cv11-562, filed in the District of Columbia.

The McCain-Feingold law says no one may give more than $30,800 to a national political committee in any one year. Before that act passed, there were no laws preventing anyone from giving as much money as desired to a political part
y. The
party argues that the ostensible purpose of the restriction is to prevent individuals from bribing politicians by offering to make large donations to that politician’s political party. But the party argued that this rationale makes no sense when applied to a bequest. The money was left to the party by a Tennessee resident, Raymond Burrington, who died in 2007. The party had not known about the bequest until after Burrington died.

The lawsuit also challenges a related law that does not permit political parties to solicit large bequests. The case was assigned to Judge Robert L. Wilkins, an Obama appointee. The McCain-Feingold law requires 3-judge courts when any part of the law is challenged, so Judge Wilkins will probably arrange a 3-judge panel.

On March 11, the North Carolina Supreme Court upheld the petition requirement for new parties, 2% of the last gubernatorial vote. Libertarian Party of North Carolina v Board of Elections. The vote was 5-1.

For 2012, the requirement is 85,379 signatures. Except in a few instances in California and Florida, no minor party, new party, or independent candidate has ever overcome a petition requirement that high. The Court said the requirement is needed to prevent "frivolous or fraudulent" parties and candidates from getting on the ballot. The majority opinion did not mention that between 1929 and 1981, North Carolina only required 10,000 signatures for a party to get on the ballot. In all those years, there was no instance at which the ballot ever had more than six parties, counting the two major parties.

The North Carolina Constitution says "All elections shall be free". It also says, "Every qualified voter, except as in the Constitution provided, shall be eligible for election by the people to office." Despite this good language, the majority seemed to feel the state Constitution gives no more protection to voting rights than the U.S. Constitution. The majority cited the unfavorable U.S. Supreme Court ballot access precedents, as well as the U.S. Supreme Court precedent that said there is no constitutional right to let two parties jointly nominate the same candidate. That issue has very little to do with this case.

The Court utterly ignored the other issues in the case, such as whether the state must let voters register into unqualified parties, or whether the state should provide a method for a party to get on the ballot in just part of the state, if it is unable to get on statewide. The majority did not mention that North Carolina requires more signatures than any other state except California.

The decision was a great disappointment. The case had been filed in 2005 and a great deal of work had been put into it. The Green Party was a co-plaintiff.

After the decision came down, several of the largest newspapers in the state editorialized that the decision was unfortunate. It is possible that in April, the legislature will pass a bill lowering the number of signatures.

On March 22, the Maryland State Court of Appeals, the highest state court in that state, ruled that signatures on petitions are not invalid just because they are illegible. Montgomery County Volunteer Fire-Rescue Association v Montgomery Co. Board of Elections, no. 86.

The vote was 5-2. The majority said if the printed name and address can be read and match the record on the voter registration rolls, and the appearance of the signature is the same on both records, the signature is valid. This is true even for illegible signatures.

On April 4, the U.S. Supreme Court will probably say whether it will hear Nader v Nago, 10-728. This is the case in which Ralph Nader challenges the Hawaii law for independent presidential candidates, on the grounds that the law requires independent presidential candidates to obtain six times as many signatures as are needed for an entire new party with its own primary.

On March 28, the Court will probably say whether it will hear Green Party of Connecticut v Lange, 10-795. This is the case challenging Connecticut’s discriminatory public funding law for candidates for state office. The law says all candidates must raise a certain number of small donations from many people, in order to receive public funding.

But that is all Republicans or Democrats need to do. By contrast, independent candidates, and the candidates of new parties, must submit a petition of 20% of the last vote cast, in addition to raising the same number of small donations, to receive full public funding.

Some time in April, the Court will probably say whether it will hear Burris v Judge, 10-367. This is a ballot access case, but it was filed by a Democratic candidate, not a minor party or independent candidate. It challenges the 7^th circuit court ruling in 2010 that said no one could get on the ballot for a special U.S. Senate election in Illinois (for a two-month term) unless that person was already on the ballot for the other U.S. Senate race, the race for a full 6-year term. Therefore, the incumbent Senator, Roland Burris, could not run in the special election, so he sued. The basis for the 7^th circuit ruling was that it wasn’t practical to let him run, because there wasn’t enough time for him to petitions.

The Court hasn’t taken any case brought to that Court by a minor party or independent candidate, on either ballot access or public funding, since 1991. If the Court takes either the Hawaii or Connecticut cases, that will be historic.

On March 21, the Court said that it will not hear a Republican Party case against part of the McCain-Feingold law that makes it difficult for a party to help one of its nominees with party funds. That case was Cao v Federal Election Commission, 10-776. It attacked the law that says parties cannot spend more than $42,000 on behalf of any of its nominees for U.S. House, if it coordinates with that candidate.

On March 28, the Court will hear oral arguments in two cases (which have been combined) that challenge extra public funding for Arizona candidates for state office, who have well-funded privately-financed opponents. The cases are McComish v Bennett and Arizona Free Enterprise Club’s PAC v Bennett.

Federal law: on March 10, the U.S. Court of Appeals, D.C. Circuit, denied the Postal Service’s request to dismiss the case Initiative & Referendum Institute v U.S. Postal Service, 10-5337. This is the case, filed in 2000, that challenges the Post Office ban on petitioning on interior post office sidewalks. Now the D.C. Circuit will request additional briefs from both sides, and examine the evidence, and take the evidence into account when it decides the case.

California: on March 11, a Superior Court in Solano County dismissed the lawsuit King v Robinson, FCS034452. This is the case in which two factions of the American Independent Party each contend they are the legitimate state officers of that party. The dispute began in 2008, when the Secretary of State recognized the faction that included the outgoing state chairman, even though the other faction had far more members of the State Central Committee at its state convention. The judge ruled that the case is moot. He construed the lawsuit to be about the 2008 state convention only, and did not acknowledge that events at the 2008 state convention affected the two rival state conventions in 2010. The King faction has not yet decided whether to appeal.

Colorado: the State Supreme Court has accepted an invitation from a U.S. District Court to decide if a discriminatory campaign finance law violates the state Constitution. The law says that individuals may donate twice as much money to candidates nominated in primaries, as they may donate to candidates nominated by petition or by convention. The plaintiff wanted to give $400 to an independent candidate for the state legislature, but the law only permits her to give $200. However, if the candidate she wanted to support had been a member of a party that holds primaries, she could have given $400. All the briefs to the Colorado Supreme Court will be in by the end of April. Riddle v Ritter.

Georgia: on March 8, the 11^th circuit upheld a state law that says no one may run for local School Board, if he or she has a close relative who is a school superintendent, a principal, an assistant principal, or on the administrative staff of a school. "Close relative" means a spouse, child, sibling, or parent or the spouse of a child, sibling or parent. Grizzle v Kemp, 10-12176. There will be no appeal to the U.S. Supreme Court.

Maine: on March 10, the ACLU filed a state court lawsuit against a state law that forbids anyone from setting up an anonymous web site and commenting on a candidate for public office. Bailey v State of Maine Commission on Governmental Ethics and Election Practices, Cumberland County Superior Court.

Massachusetts: on March 17, the Libertarian Party asked the U.S. Supreme Court for more time to file a petition for certiorari in Barr v Galvin, the case over whether states must let unqualified parties use a stand-in presidential candidate on their ballot access petitions. In states in which the ballot access petition for minor parties must list the party’s nominees, most states let parties use a stand-in, if the party hasn’t yet chosen its presidential nominee when it starts to circulate the petition. However, Massachusetts refused to allow that in 2008, even though the state had told the party in 2007 that it would allow it, and even though the state had allowed it in the past.

The U.S. District Court had ruled in 2008 that Massachusetts must let the party use a stand-in, but in 2010, the U.S. Court of Appeals had reversed that decision. But the Appeals Court also agreed that the law isn’t clear, and said the party is free to ask the state courts to clarify whether the law really does ban stand-ins for President. The party is asking for state court interpretation, but it wishes to preserve its ability to ask for U.S. Supreme Court review if the state court says stand-ins are not allowed.

New York: on March 9, the Libertarian Party filed a lawsuit against the Board of Elections, against its policy of squeezing two parties into the same column or same row on paper ballots. The state did this in the past because the mechanical voting machines only had room for 8 party columns or rows, and sometimes there were more than 8 parties on the statewide ballot. But starting in 2010, New York uses paper ballots, so there is no reason for the state to squeeze two parties into the same column or row any longer. The lawsuit alleges that the party might have polled 50,000 votes for Governor (enough to make it a qualified party) if the state had used a better ballot design. The party was credited with 48,386 votes. There are other election law issues in the lawsuit as well. Redlich v State Board of Elections, Albany County Supreme Court.

South Dakota: on March 15, the 8^th circuit heard Constitution Party of South Dakota v Nelson, 10-2910. The issue is the state’s ban on out-of-state circulators. However, the judges seemed disturbed by some procedural irregularities in the evidence. The plaintiff who doesn’t live in South Dakota and who wanted to help the party obtain signatures never filed an affidavit in this case asserting that he wanted to circulate. And the plaintiffs who are officers of the party did file affidavits, but they never alleged they wanted to hire an out-of-state circulator. It seems somewhat likely that the case will be dismissed with no substantive opinion.

Washington: the 9^th circuit has set a briefing schedule in Washington State Republican Party v Washington State Grange, 11-35122. The first brief, to be filed by the three political parties in the case, is due May 23. This is the lawsuit that argues that the top-two system violates the U.S. Constitution, as to freedom of association, and as to ballot access, and to trademark law. The U.S. District Court had upheld the law.

Utah: on March 21, a U.S. District Court ruled that, for the time being, the state may not release the names and addresses of people who signed a petition to get an initiative on the ballot. Utahns for Ethical Government v Barton, 2:10cv-333. The U.S. Supreme Court had a similar case last year, and ruled that names and addresses of people who sign petitions may be made public, unless there is a chance the signers will be harassed. In this case, the people who organized the petition have not yet made a case that the signers will be harassed. However, the government has refused to check the petition so far, because it claims the petition is invalid, so the judge ruled that there is no rational reason to release the names and addresses.

Washington: a U.S. District Court will hold a trial in Doe v Reed starting on September 27. This is the case to determine if the names and addresses of people who signed a petition in 2009 should be made public. This case has already been to the U.S. Supreme Court, which ruled that generally, there is no privacy right for people who sign petit
io
ns. However, the Court said there is a privacy right if the evidence shows that if the names and addresses were made public, the signers would be harassed. The purpose of the trial is to see if one particular petition qualifies for privacy. It is the petition that put a referendum on the 2009 ballot, to overturn a state law for civil unions for same-sex couples.

Oklahoma: both houses have passed bills to move the petition deadline for a new party from May 1 to March 1. These bills are HB 1615 and SB 602. The change is almost certainly unconstitutional, whether the bill to lower the number of signatures for a new party passes or not. The bills also move the non-presidential primary from July to June.

Illinois: on March 15, the House Elections & Campaign Reform Committee passed HB 2009 unanimously. It says no one who ran in a primary and loses, or no one who ran in a primary and won, but later withdrew, can then run in the general election under a different label. This would be true, whether the candidate tries to run for the same office, or a different office. The law appears to apply to presidential candidates. If it had existed in 1980, John B. Anderson could not have got on the ballot as an independent presidential candiate. Also, Adlai Stevenson in 1986, who won the Democratic gubernatorial primary but then resigned from the ticket rather than run with a running mate from the Lyndon LaRouche movement, could not have run as the nominee of the Illinois Solidarity Party in the general election.

Nevada: AB 81 is pending in the Assembly Elections Committee. The Secretary of State initiated this bill. Among other things, it vastly increases filing fees. For example, the fee for U.S. House candidates would rise from $300 to $2,000. Also the bill moves the petition deadline for a new party from May to April. A U.S. District Court in Nevada struck down the old April petition deadline in 1986, so this part of the bill, if enacted, would almost certainly again be declared unconstitutional.

Texas: HB 418, which would have required candidates nominated by petition and by convention to pay filing fees, has been withdrawn by the sponsor, Representative Leo Berman. In Texas, ever since the 1970’s, only the Democratic and Republican Party have nominated by primary. All other parties nominate by convention. The Libertarian Party worked hard to defeat this bill. The rationale for filing fees for Republicans and Democrats is that otherwise the primary ballots of those parties would be too crowded. That rationale doesn’t make sense when applied to parties that nominate by convention.

California: on March 15, the State Senate Elections Committee passed SB 205. It makes it illegal for anyone to pay anyone to register voters into any particular party, if the payment is based "directly or indirectly" on how many registration changes occur. In California, the only method for a party to remain ballot-qualified is to increase its registration to 103,004 registrants. Neither the Libertarian Party nor the Peace & Freedom Party have this many registrants. One way for them to survive is to pay people to go out on the streets and persuade voters to fill out new voter registration forms, switching to those parties. This is tough work, and it the parties can’t hire people on a per-registration basis, their attempts to remain ballot-qualified will be hampered. The three Democrats on the Committee voted "Yes"; the two Republicans voted "No."

On March 8, Missouri Representative Jill Schupp introduced HB 796. It would eliminate the flaw in the state’s petition procedure for new parties. Currently, the law says a petition may be circulated by a group that desires to become a qualified party. The petition need not say who that group’s nominees will be, because they won’t have been chosen yet. Unfortunately, due to a drafting error, the existing law does force the petition to carry the names of that group’s presidential nominee, even though the group probably hasn’t chosen that nominee yet. The bill would fix the error. In the meantime, the Secretary of State has been letting such groups use a stand-in presidential nominee on the petition.

Although bills in twelve states have been introduced to require birth certificates for presidential candidates, none of them has made any headway and some have been defeated.

Americans Elect continues its efforts to qualify itself as a political party. It has attained party status in Nevada. It has finished in Alaska, Arizona, and Kansas, but it has not submitted the petitions yet. It is starting its party petition in Michigan. In the most surprising news, it is also beginning to collect signatures in California. California has two methods to qualify a new party: (1) persuading 103,004 persons to register as members of the new party, on voter registration forms; (2) collecting 1,030,040 valid signatures on a petition. Americans Elect is launching the petition. The California petition will probably cost $2,500,000.

No one has ever used the California 10% petition alternative, except the Independent Progressive Party in 1947-1948. At the time the 10% law required 275,970 signatures. The party submitted 440,000, and was told it just barely had enough valid signatures. The 10% petition has only existed since 1937. The party (known as the Progressive Party in most other states) ran Henry Wallace for President in 1948. He was a former Vice-President, but he only polled 2.2%.

The American Independent Party is already on the ballot in California. The election law says the name of a new party "shall not be so similar to the name of an existing party so as to mislead the voters." The Secretary of State will soon issue a legal opinion on whether "Americans Elect" is dissimilar enough to "American Independent" to be allowed. In 1896 the California Supreme Court ruled that the National Democratic Party could be on the ballot, even though the Democratic Party was already on.

Americans Elect says it will not run candidates for any office except President. It says it will let all the registered voters of the United States choose its presidential nominee, by voting on-line in the late spring or early summer of 2012. To the extent the group has qualified as a party in most states by then, the candidate will benefit from the party’s ballot status.

On March 26, the Arkansas Libertarian Party started its petition drive to get on the ballot for 2012. The law requires 10,000 signatures, and they must be collected within 90 days. If this petition succeeds, it will be the first time any party has qualified in Arkansas in the last 40 years, except for the Green Party and the Reform Party.

The Country Party, a new party within Wyoming, is about to start its petition to get on the 2012 ballot. It needs 3,734 valid signatures. The Country Party was founded by former members of the Libertarian Party, who disagree with the Libertarian Party stance on some issues.

The Constitution Party is also about to start in Wyoming. Wyoming does not allow petitions to create a party to circulate until April 1 of the odd year before an election year.

On January 25, New Mexico Representative Andy Nunez changed his registration from "Democrat" to "independent". He did so because he had been removed as chair of the Water and Natural Resources Committee. He lost his chairmanship because he had opposed Speaker Ben Lujan for another term as speaker. Nunez is the first New Mexico state legislator to be an independent. New Mexico did not even permit independent candidates to get on the ballot until 1977. Nunez is the first New Mexico state legislator not to be a member of either major party since 1914, when the Progressive Party and the Socialist Party each elected a state legislator.

Mississippi elects all its state partisan offices in the odd year before presidential election years. This year, even though Mississippi has very easy ballot access, the only minor party running any candidates for statewide office is the Reform Party.

---

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.