MONTANA PETITION DEADLINE STRUCK DOWN

On May 25, U.S. District Court Judge Sam Haddon ruled that Montana’s March petition deadline for non-presidential independent candidates is unconstitutional. This case had been pending for four years and was very hard fought. The case is Kelly v McCulloch, cv-08-25.

Montana’s state government tried very hard to win this case. Shortly after the case was filed, the 9^th circuit ruled in Nader v Brewer that Arizona’s June petition deadline for independent candidates is too early. Montana is in the 9^th circuit, so this decision was a blow to Montana’s ability to defend its even earlier deadline. Therefore, the Montana Attorney General filed an amicus brief, urging the U.S. Supreme Court to hear Arizona’s appeal. Montana then persuaded twelve other states to sign onto that amicus brief. But, the U.S. Supreme Court refused to hear the Arizona appeal.

Montana also hired an expert witness, a political scientist from Washington state, to help defend its deadline. It is somewhat unusual for a state to hire an expert witness in a lawsuit that challenges an early deadline. There isn’t a great deal an expert can do to help defend an early deadline, because the case law is already so overwhelmingly strong that early petition deadlines are unconstitutional.

The U.S. Supreme Court struck down Ohio’s March independent candidate deadline in 1983. Also, in 1977, the U.S. Supreme Court summarily affirmed a lower court decision that said Arkansas’ April was too early; and in 1976 the Court summarily affirmed a lower court decision that said Pennsylvania’s April deadline was too early. Early petition deadlines have been declared unconstitutional, or enjoined, in 28 states.

Originally, Judge Haddon had not been sympathetic to this lawsuit. On October 9, 2008, he had refused to grant injunctive relief, and had said that the lawsuit was not likely to win. On February 3, 2010, he had ruled that the case should be dismissed because the plaintiffs lack standing. But on December 10, 2010, the 9^th circuit had said the plaintiffs do have standing, and had sent the case back.

This is the first ballot access lawsuit that Montana has ever lost. Now, the only state that has never lost a ballot access case involving a minor party or an independent candidate is New Hampshire.

The ACLU handled this case for the plaintiff, Steve Kelly, who had wanted to run as an independent for U.S. Senate in 2008. The case was so lengthy and hard-fought that the ACLU has calculated that the state should pay it $226,826 in attorneys’ fees. That amount is disputed, and will be subject to more legal action.

Montana’s independent candidate deadline (for office other than President) had been in May until 2007, when the legislature moved it to March. The editor of this newsletter sent messages to each Montana legislature during 2007, predicting that the new deadline would be held unconstitutional, but no notice was paid to that message.

For the 2012 election, the Secretary of State has ruled that the petition deadline should be May 29. She made that ruling on May 29, which meant that the ruling won’t help any independent candidate this year.

The decision should help plaintiffs in other states who are challenging early petition deadlines. Such lawsuits are pending in Alabama, Illinois, New Mexico, North Carolina, Ohio, Oklahoma, and Vermont.

On May 17, Colorado Governor John Hickenlooper signed HB 1292. It moves the deadline for qualifying for the November ballot, for independent presidential candidates, from June 4 to August 8. Until this bill passed, Colorado had had the earliest independent presidential deadline.

The bill also increases the filing fee from $500 to $1,000. However, the fee increase does not take effect until 2016. The improved deadline takes effect immediately. Colorado does not require a petition for independent presidential candidates, just payment of the fee.

On June 25, the Michigan Libertarian Party filed a lawsuit in U.S. District Court, to require the Secretary of State to list Gary Johnson on the ballot as the Libertarian nominee. The party is ballot-qualified in Michigan. But the Secretary of State says she won’t list Johnson because his name was on the Republican presidential primary ballot in February. He tried to withdraw, but his withdrawal arrived three minutes too late.

Michigan has had a law since 1955 that says someone who seeks the nomination of one party cannot then be the nominee of another party. But in 1980, then-Secretary of State Richard Austin interpreted the law not to apply to presidential primaries. He put John Anderson on the November ballot as the nominee of the "Anderson Coalition Party", even though Anderson had been on the Michigan Republican presidential primary that year. The case is Michigan Libertarian Party v Johnson, 2:12cv-12782.

On June 18, the Massachusetts Supreme Court construed the law to mean that candidates listed on petitions may never withdraw and be replaced by someone else. Libertarian Association of Mass. v Secretary of the Commonwealth, 2011-348.

Previously, the Secretary of State had permitted independent and minor party candidates listed on petitions to be replaced, but he exercised this authority arbitrarily. His predecessor Michael Connolly had let independent presidential candidate John B. Anderson replace the vice-presidential candidate listed on his 1980 independent petition with the actual candidate. Anderson had declared as an independent presidential candidate on April 24, 1980, but had not found a suitable vice-presidential running mate until August 27. Massachusetts, and 48 other states, all let Anderson replace his stand-in running mate with the actual running mate. The Massachusetts law has not changed since then.

Massachusetts had extended the same favorable treatment to the U.S. Taxpayers Party in 1996, the Reform Party in 2000, and Ralph Nader in 2004. But in 2008, Secretary of State William Galvin surprisingly refused to let the Libertarian Party replace its stand-ins with the actual candidates. The party had then sued and won in U.S. District Court, so that Bob Barr was listed on the ballot even though the petition had carried George Phillies as the presidential nominee. The U.S. District Court had ruled that the Constitution requires states to permit unqualified parties to substitute a new nominee, because the qualified parties are permitted to change their nominees.

But after the election was over, the First Circuit had reversed the constitutional decision, but had suggested that perhaps the Massachusetts state courts would construe the state law to mean that substitution is permitted.

But, the Massachusetts Supreme Court said "no." The Massachusetts Supreme Court said the law "does not impose a significant burden." Actually, it means that parties have lost the freedom to choose a national ticket during the summer of election years. The Court said that candidates and parties who have lost their ability to be on the ballot are always free to run write-in campaigns.

The decision does not mention the decisions in other states that have ruled in favor of substitution. John Anderson had won such cases in 1980 in Florida, Pennsylvania, and Indiana. Also, a U.S. District Court in Virginia had ruled in 1989 that states must permit substitution for every class of political organization.

Dan Winslow, a Massachusetts legislator, says he will introduce a bill in 2013 to authorize stand-ins, at least for President, Vice-President, and presidential electors.

On June 8, the U.S. Court of Appeals ruled that the D.C. Board of Elections has no legal duty to count write-in votes for declared presidential write-in candidates. Libertarian Party v Bd. of Elections, 11-7029.

The decision said the District’s interest in saving money is more important that the right of voters to have their votes counted. The case had originated in 2008, when Bob Barr, the Libertarian presidential nominee, complied with the Board’s procedures for filing as a declared write-in candidate. Barr was the only write-in presidential candidate who filed. He had to submit the names of three candidates for presidential elector, all of whom must have lived in the District for the last three years. He did so, but the Board still wouldn’t count his write-ins.

The three judges, David Tatel, Merrick Garland, and Brett Kavanaugh, seem not to have read the briefs or the evidence in this case.

The opinion is only ten pages long, yet in five places, it says that the case is about counting all the write-ins. Yet the case is not about counting all the write-ins; it is just about counting the write-in votes for candidates who file, and thus who receive valid votes.

The opinion seems embarrassed to acknowledge that Barr’s write-ins weren’t counted, so it asserts that they were counted. The Board’s offical returns say there were a total of 1,138 write-ins for president in November 2008. Therefore, the opinion claims the Board did count Barr’s write-ins, and the number of write-ins he received is between 3 and 1,138 (the Court assumes the three presidential elector-plaintiffs did actually cast a write-in for Barr).

But the official
returns do not say that declared write-in candidate Bob Barr received between zero and 1,138 write-ins. The official returns do not mention Bob Barr at all.

Furthermore, "to count" means the to provide a specific number. If a farmer asks his field hand to count the number of cattle on the farm, and the employee says that there are between 3 and 1,138 cows, that is not what the farmer asked.

The judges ignored the evidence that 36 states have procedures for write-in presidential candidates to file, and that these states count the number of votes cast for such filed candidates without difficulty. The evidence shows that write-ins are sometimes a significant portion of the national totals of minor party and independent presidential candidates. Over 10% of the votes received by Eugene Carthy in 1976, and Ralph Nader in 2004, were write-in votes.

The constitutional issues are stake are significant. If a government can refuse to count the votes of disfavored candidates, even though the votes are valid votes, then there is nothing to prevent the government from also refusing to count the votes for certain candidates who are on the ballot. The party will ask for a rehearing.

On May 10, the D.C. Court of Appeals (which is not the same as the U.S. Court of Appeals for the D.C. Circuit) ruled that Ralph Nader’s banks in Washington, D.C., must release $56,928 of Nader’s savings to the people who challenged his petition in Pennsylvania in 2004. Nader v Serody, 09-cv-906.

The decision had been pending for over two years. The decision doesn’t even acknowledge that some of the information about the 2004 Pennsylvania challenge to Nader’s petition had not been revealed until after this case had been filed. Nor does the decision acknowledge that the constitutionality of Pennsylvania’s system of charging candidates huge amounts of money when their petitions don’t have enough signatures is being challenged in federal court in Pennsylvania.

On May 24, Nader filed a request for rehearing, which is still pending. The funds won’t be seized until after the request for rehearing has been disposed of.

On June 19, the California Senate Elections Committee passed AB 2058 by a vote of 3-2. It makes it illegal for registration drive workers to be paid on a per-registration card basis. The only method parties in California have to become or remain ballot-qualified is to increase their registration to over 100,000 members. Making it illegal for parties to hire paid workers and pay them for each new registrant in that party is a severe restriction. All Democrats on the committee voted for the bill; all Republicans opposed it.

Assuming the bill passes the Senate, it must return to the Assembly. The legislature passed this idea last year, but Governor Jerry Brown vetoed it. No one knows if he is inclined to veto it again, if it reaches him.

On May 31, New Hampshire Governor John Lynch signed SB 236. It requires newly-qualifying parties to nominate their candidates in June, even though the old qualified parties don’t nominate their candidates until the September 11 primary. The law took effect immediately.

As a result, the New Hampshire Libertarian Party was forced to quickly nominate candidates. No other party is attempting the party petition this year in New Hampshire. The other minor parties will attempt to qualify their presidential candidates using the independent candidate petition procedure, which permits a party label. The independent presidential petition is only 3,000 signatures, whereas the party petition requires 13,698 signatures. Petitions aren’t due until August 8.

This year, the Libertarian Party was able to nominate candidates for all the statewide offices, and both U.S. House races, and three Executive Council positions, and 25 state legislative candidates. By contrast, last time the Libertarian Party did the party petition, in 2000, when it had more time to find candidates, it was able to nominate 39 state legislative candidates, plus candidates in all the statewide and congressional races.

Every time the New Hampshire legislature changes the ballot access laws, it is to make them harsher. During the last 32 years, the legislature has tripled the number of signatures for independent candidates, added a distribution requirement to the statewide independent candidate petition, increased the vote test for a party to remain ballot-qualified from 3% to 4%, made petition deadlines earlier, and now has forced newly-qualifying parties to nominate earlier. The law even requires newly-qualifying parties to identify their presidential candidates by mid-June, even though the old qualified parties need not do that until September.

On June 13, the Ohio legislature passed HB 509. Current law says all qualified parties must notify the state of their presidential and vice-presidential nominees in early August. The bill says that for parties that polled at least 20% in the last election, the filing deadline is in early September. The bill is needed, because the Democrats won’t hold their convention until September 3-6, and the Republicans won’t hold theirs until August 27-30. Without the bill, their nominees could not be listed on the Ohio November ballot. One wonders why the legislature wrote the bill to only apply to those two parties.

On June 21, the New York Assembly passed A7492, the &qu
ot;Voter Friendly Ballot Act." Unfortunately, the legislature then adjourned, and the Senate never voted on it. It would have provided clearer ballots.

Currently, New York ballots are very confusing and do not treat all candidates equally. Sometimes some of the candidates for a particular office are in one row or column, and other candidates for the same office are in a different column or row. The bill would have provided that the names of candidates for the same office should appear in the same place. The bill would also have eliminated party logos. A "party logo" is a cartoon-like drawing showing the symbol of each party, such as the Statute of Liberty, or a Star, or an Eagle.

On June 19, the California State Senate Elections Committee passed AB 1436, the bill to let voters register on election day. The bill had already passed the Assembly. It would not go into effect until 2015.

California held its first regularly-scheduled top-two primary on June 5. The results disprove many assertions that top-two supporters had made earlier:

1. Turnout. Top-two supporters say that top-two systems improve turnout. Yet at the California primary, turnout was only 31% of the registered voters, the lowest presidential primary turnout in California history. This does not mean that top-two depressed turnout; merely that it doesn’t help turnout. One reason turnout was down is that there was no suspense as to whom each major party will nominate for President.

Turnout didn’t increase in the other top-two states, Washington and Louisiana, either, when those states switched to top-two systems.

Advocates of top-two spent a great deal of money to bolster turnout in the California primary. California Independent Voters Network, which is heavily funded by wealthy individuals, mailed an expensive brochure to 500,000 independent voters, urging them to vote, but it appears that only approximately 15% of California’s independent voters did vote. The figures are not final yet.

2. Independent candidates. The leading backers of top-two are registered Republicans and Democrats, including Arnold Schwarzenegger, Abel Maldonado, Charlie Munger Jr., and Steve Peace. Nevertheless, these top-two backers hold themselves out as friends of independent candidates. The backers recruited some public officials to run as independent candidates, and sometimes contributed to their campaigns.

But, even independent candidates who had held public office and who were well-funded failed to place first or second, if there was also at least one Democrat and one Republican in the same race. Only in one race did an independent qualify for the November ballot even though there were also candidates from both major parties in the same race.

That one race was the U.S. House race, 33^rd district, in southwestern Los Angeles County. Incumbent Democratic congressman Henry Waxman placed first, and independent Bill Bloomfield placed second.

However, in that race, the Republican Party unofficially supported Bloomfield. He was endorsed by a former state chair of the Republican Party, and by John McCain, former Governor Pete Wilson, former Los Angeles Mayor Richard Riordan, and many other Republican elected officials. He raised $1,214,976. Bloomfield had been a registered Republican until 2011, when he became an independent. Clearly he was the de facto Republican Party choice. The only registered Republican who ran in this race, Christopher David, only raised $8,848, and is an age-25 Ron Paul supporter.

In other races, independent candidates with good credentials still failed to place first or second, if there were both Democrats and Republicans in their races. Former Republican Assemblyman Anthony Adams ran for U.S. House in the 8^th district as an independent, but did not qualify for the November ballot.

Chad M. Condit, son of former Congressman Gary Condit, ran for U.S. House as an independent in the 10^th district and did not qualify for the November ballot.

Jack Doyle, former Mayor of Santee, and a retired U.S. Navy Captain, ran for U.S. House, 52^nd district, as an independent. He was recruited to run by supporters of top-two. But, he failed to qualify for the November ballot.

Mark Green, mayor of Union City for the last nineteen years, ran for Assembly, 20^th district, as an independent, but he failed to qualify for the November ballot.

Linda Parks, a Ventura County Supervisor, ran as an independent for U.S. House, 26^th district. She raised $208,982, and had the endorsement of many local officials, but did not qualify for the November ballot.

The irony is that, under the old partisan nomination system, these independent candidates could have obtained a spot on the November ballot by submitting a petition of 3% of the last vote cast in their district. And, in November, they could conceivably have won, because under the old system, it is possible for anyone to win with as little as 34% of the vote.

3. Minor party candidates: during the campaign on whether California should use the top-two system, Steve Peace, one of the leading backers of that idea, insisted that top-two would help minor party candidates get elected. But, no minor party member came anywhere close to qualifying for the November ballot. The only exception to that statement, in U.S. House races, is that in the 37^th district, only one candidate appeared on the June ballot. With only one person on the June ballot, the write-in candidate who gets the most write-ins in the primary will qualify for the November ballot. Los Angeles County still hasn’t tallied the write-ins, so no one knows if the person who got the most write-in votes will be the one Republican declared write-in candidate, or the one Libertarian write-in candidate, or the one Peace & Freedom Party candidate.

Also, there are two legislative races in which there was only one person on the primary ballot, and the leading write-in candidate in both those races are Peace & Freedom Party members. So, in November, the only minor party candidates on the ballot for Congress and state office will be two or three races in which the incumbent is so secure, no one even bothered to run against that person by filing to
appear on the primary ballot against that incumbent.

Sometimes top-two supporters say that minor parties would qualify, if only they would try harder. But in the U.S. House race, 33^rd district, the Libertarian candidate, Steve Collett, spent $69,260. Also the Green in that race, David W. Ssteinman, spent $39,699. But neither of them qualified for the November ballot.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	JUSTICE	Party	Indp.
Ala.	44,829	5,000	in court	in court	in court	0	Mar. 13	Sep. 6
Alaska	(reg) *7,686	#3,271	already on	2,023	*59	0	June 1	Aug. 8
Ariz.	23,041	31,111	already on	already on	0	0	Mar. 1	Sep. 7
Ark.	10,000	#1,000	already on	already on	0	300	April 7	Aug. 1
Calif.	(reg) 103,004	172,859	already on	already on	negotiation	400	unsettled	Aug. 10
Colo.	(reg) 1,000	#pay $500	already on	already on	already on	already on	Jan. 8	*Aug. 8
Conn.	no procedure	#7,500	0	*1,900	0	0	– – –	Aug. 8
Del.	(reg) 608	6,080	already on	*already on	*500	0	Aug. 21	July 15
D.C.	no procedure	(est.) #3,900	*0	already on	*0	0	– – –	Aug. 8
Florida	0	112,174	already on	already on	already on	0	Sep. 1	July 15
Georgia	50,334	#51,845	already on	*in court	*in court	0	July 10	August 6
Hawaii	691	#4,536	already on	already on	0	disputed	Feb. 23	Sep. 7
Idaho	13,102	1,000	already on	0	already on	0	Aug. 30	Aug. 24
Illinois	no procedure	#25,000	*finished	*finished	*finished	finished	– – –	June 25
Indiana	no procedure	#34,195	already on	*too late	*too late	too late	– – –	*July 2
Iowa	no procedure	#1,500	*finished	*450	*150	0	– – –	Aug. 17
Kansas	16,776	5,000	already on	0	0	0	June 1	Aug. 6
Ky.	no procedure	#5,000	*1,500	0	0	0	– – –	*Sep. 4
La.	(reg) 1,000	#pay $500	already on	already on	0	0	May 17	Sep. 4
Maine	28,639	#4,000	*4,000	already on	0	0	Dec 8, 11	Aug. 8
Md.	10,000	34,713	*lack 2,734	*lack 2,000	1,200	0	Aug. 6	Aug. 6
Mass.	(est) (reg) 40,000	#10, 000	*7,500	already on	0	0	Nov. 1, 11	July 31
Mich.	32,261	30,000	*in court	already on	already on	0	July 19	July 19
Minn.	105,352	#2,000	*300	*250	0	0	May 1	Aug. 21
Miss.	be organized	1,000	already on	already on	already on	already on	Jan. 6	Sep. 7
Mo.	10,000	10,000	already on	0	already on	0	July 30	July 30
Mont.	5,000	#5,000	already on	0	0	0	Mar. 15	Aug. 15
Nebr.	4,880	2,500	already on	0	0	0	Aug. 1	*Aug. 28
Nev.	7,013	7,013	already on	0	already on	0	April 13	July 6
N. Hamp.	13,698	#3,000	*19,000	50	0	0	Aug. 8	Aug. 8
N.J.	no procedure	#800	*15gg0	*200	*120	200	– – –	July 30
N. M.	3,009	18,053	already on	already on	already on	already on	Apr. 3	June 27
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	can’t start	– – –	Aug. 21
No. Car.	85,379	85,379	already on	*too late	*too late	too late	May 16	June 14
No. Dak.	7,000	#4,000	already on	0	already on	0	Apr. 13	Sep. 7
Ohio	show support	5,000	already on	already on	already on	0	unsettled	Aug. 8
Okla.	51,739	43,890	in court	in court	0	0	March 1	July 15
Oregon	21,804	18,279	already on	9,025	already on	already on	Aug. 28	Aug. 28
Penn.	no procedure	#20,601	34,000	*6,000	*10,000	300	– – –	Aug. 1
R.I.	17,115	#1,000	0	0	0	0	June 1	Sep. 7
So. Car.	10,000	10,000	already on	already on	already on	0	May 6	July 15
So. Dak.	7,928	3,171	already on	0	already on	0	Mar. 27	Aug. 7
Tenn.	40,042	275	0	already on	already on	0	Aug. 8	Aug. 16
Texas	49,729	80,778	already on	already on	too late	too late	June 29	June 29
Utah	2,000	#1,000	already on	already on	already on	already on	Feb. 15	Aug. 15
Vermont	be organized	#1,000	already on	*too late	*too late	too late	Jan. 1	Jun 14
Virginia	no procedure	#10,000	*5,000	*3,000	*6,500	0	– – –	Aug. 24
Wash.	no procedure	#1,000	*1,000	0	0	800	– – –	July 28
West Va.	no procedure	#7,135	5,000	already on	*100	0	– – –	Aug. 1
Wisc.	10,000	#2,000	0	0	already on	0	April 1	Aug. 7
Wyo.	3,740	3,740	already on	0	already on	0	June 1	Aug. 28
TOTAL STATES ON			29*	21*	17	5	“	`

#partisan label permitted (other than "independent").
"AMER ELE" = Americans Elect Party.
*change since June 1 issue.

The Party for Socialism and Liberation’s presidential candidate is on in Colorado and Vermont. Petitioning is finished in Arkansas, Iowa, New Jersey, and Washington. The group has 200 signatures in Minnesota.

The Socialist Party has 700 signatures in New Jersey, 100 in Minnesota, and is on in Ohio.

The Reform Party has 500 signatures in Arkansas.

American Third Position is on in Colorado, has 630 signatures in New Jersey, 50 in Arkansas, 25 in Mississippi, 50 in Washington, and 30 in West Virginia.

Americans Elect has been removed from the petitioning chart, because it has ceased petitioning and will have no candidate for President this year. The Justice Party now appears on the petitioning chart.

The Peace & Freedom Party will hold a presidential convention in Los Angeles on August 4-5. The presidential nominees of the Freedom Socialist Party, the Justice Party, the Party for Socialism and Liberation, and the Socialist Party, are all seeking the party’s nomination.

On May 31, the Federal Election Commission announced that Gary Johnson had qualified for primary season matching funds, and issued a check to his campaign for $100,000. An additional check will be sent after more paperwork is processed.

The Socialist Workers Party recently announced that its presidential candidate this year is James Harris, and the vice-presidential nominee is Maura DeLuca. The ticket is already on the ballot in Colorado.

On June 5, California held presidential primaries for four minor parties. These results are almost complete:

American Independent: Ed Noonan 16,625; Laurie Roth 16,044; Mad Max Riekse 10,227.

Green: Jill Stein 8,826; Roseanne Barr 7,138; Kent Mesplay 1,937.

Libertarian: Gary Johnson 6,661; Barbara Joy Waymire 2,083; Scott Keller 1,190; R. J. Harris 660; Bill Still 655; Roger Gary 549; James Ogle 542; Carl Person 516; Lee Wrights 470.

Peace & Freedom: Rocky Anderson 1,559; Stewart Alexander 1,073; Stephen Durham 960.

On May 31, Buddy Roemer said he is no longer a candidate for President. Even though Americans Elect had said on May 17 that it would not run any candidate, Roemer had then said he was seeking the Reform Party nomination. However, he no longer will pursue that nomination.

Even though Americans Elect has become inactive, and even though it never intended to have any candidates for any office other than President and Vice-President, there will be at least two Americans Elect nominees for Congress in Arizona. They are Richard Grayson in the 4^th district and Stephen Dolgos in the 8^th district. Americans Elect is entitled to a primary this year, and they have filed to run in that primary. Since no one is running against them for the nomination, they cannot be defeated.

It is conceivable, but unlikely, that the national headquarters of Americans Elect will sue to remove the two candidates from the November ballot. Americans Elect has a trademark for its name.

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