On September 1 (Saturday), the Ohio voters who challenged Gary Johnson’s placement on the general election ballot withdrew their challenge. They did not explain why they withdrew. Thanks to Gary Sinawski for this news.
In a slightly related development, on August 31, the U.S. Court of Appeals, 6th circuit, dismissed the Ohio legislature’s appeal of the 2011 U.S. District Court decision that put the Libertarian Party on the ballot for 2012. The 6th circuit said the case is moot.
Ohio has now been without a constitutional ballot access law for newly-qualifying parties for six full years. It will be interesting to see if the 2013 session of the legislature passes a valid law. According to 52 court precedents from around the country, petition deadlines as early as March are unconstitutional. Yet in all six years, there has been no bill introduced in the Ohio legislature to set a petition deadline for newly-qualifying parties that would be upheld. The only reasonable solution is to eliminate the requirement that newly-qualifying parties must nominate by primary. Very few other states requires that newly-qualifying parties must nominate by primary, as a condition of having their nominees on the general election ballot with the party label. Ohio has a strong preference for an early primary, especially in presidential election years. If Ohio were willing to hold its congressional/state office primary in the late summer, the problem would be easier to solve, but given the state preference for an early primary, the state needs to exempt newly-qualifying parties from having a primary.
good news.
Kudo’s to LPO attorney Mr. Mark Brown, who was relentless in our defense. We also appreciate him having a rather “direct” conversation with the Ohio officials on Friday. They must have listened. Pushing back is the only thing a bully understands.
Kevin Knedler
State Chair LPO
Pussies.
The ruling in ‘Blackwell’ was a 2-1 split decision by the 6th Circuit which found that it was the combination of early primary, number of signatures, and period between the filing deadline that were problematic.
The court in ‘Brunner’ should never have even considered Jennifer Brunner’s purported regulations once they had determined that she had usurped legislative authority.
And Judge Marbley’s decision in ‘Husted’ was premature. He was prejudiced against the omnibus bill and that appears to have colored his understanding of the the ballot access issue. And given Congress’s regulation of the mail-out of overseas ballots it is patently absurd for Marbley to suggest that election officials were whining about the period between qualification and the primary.
But rather than continuing to guess which combination of requirements would satisfy the 6th Circuit or the Supreme Court, Ohio should adopt Top 2 which eliminates the problem with party qualification and would likely lead to Ohio switching to a later primary (Ohio held local elections on August 7).
Washington has shown that you don’t need onerous party qualification nor party registration.
Louisiana has fairly relaxed party qualification, and with their long experience with the Open Primary, party registration is no big deal. Arizona’s Top 2 initiative specifically lets candidates register with unqualified parties and have that party name appear on the ballot. Sooner or later California is going to lose a lawsuit over its banning of candidate preferences for smaller parties. It violates the 1st Amendment, violates the California Constitution, and is contrary to SB 6 implementation of the Open Primary.
So the only issue then is the presidential primary. Let’s set a qualification of 1/2 of 1% of the previous presidential vote total to qualify (around 28,000 based on 2008) to qualify for the general election ballot. A party that appeared on the previous general election ballot would be eligible to hold a presidential primary.
If party turnout reached the qualification level (28,000) in the primary, the party could place its nominee on the general election ballot.
If it missed that level, then the party could have a supplementary petition among voters who did not vote in the primary.
Parties that did not hold a primary, as well as independent candidates would qualify by petition. A deadline at the end of July would provide sufficient time to verify signatures and prepare general election ballots.
So presidential party qualification would always occur during the presidential election year, including the major parties. Parties that had appeared on the presidential ballot previously, would have an opportunity in the primary to demonstrate that they had continued support, and if not would still have a petition opportunity.
Alternatively, Ohio could adopt a system like that used in Texas.
Texas does not have permanent party affiliation. Voters are simply restricted to participating in the nominating activities of a single party during each biennial election. Ohio’s system simply leads to a bunch of needless gotchas and litigation.
In Texas, parties qualify for the general election ballot based on the persons who participate in their nominating activities (major parties qualify based on previous election results, but it would work the same way if they had to get enough voters to vote in their primary to qualify for that year’s general election). There is really no difference between 50,000 voters voting in a primary that chooses the nominee; 50,000 voters participating in nominating conventions that choose the nominee; or 50,000 voters signing a petition.
In Ohio, the State conducts the primary, which includes non-partisan offices. In Texas, each party conducts its own primary. So in Ohio, it would be feasible for a voter to appear at the primary election, declare he was affiliating with the XYZ party. If the XYZ party was having a primary he would be handed their ballot, which would include the nonpartisan races. If the XYZ party was not having a primary, his affiliation would still be recorded, but he would be handed a nonpartisan ballot. So voters could still endorse a party without actively participating in its nomination activities.
In Texas, a party has to register its intent to conduct nominations by convention that year, but that is simply a filing of a declaration, along with party rules, and party officers. In 2012 about 10 parties filed such a declaration, though none completed their qualification.
Texas requires that candidates seeking nomination by convention declare their candidacy at roughly the same date as candidates for primary nomination. This is somewhat busywork, and if candidates later withdraw the party can set a new filing deadline. Some parties set the deadline at 11:59 pm the date before the convention.
But this is not necessary. If someone runs or votes in a primary they can’t participate in a convention of another party, so anyone who has not participated in the nominating activities of another party could simply show up at a convention and become the nominee. A party could require pre-filing in their rules if they so wished.
In Texas, parties that nominate by convention have to adhere to a strict schedule. There really is no need for such a limitation. Simply let each party set the date and geographical coverage of their entry-level conventions. These might be townships or parts of cities, or perhaps multiple rural counties. These should be considered public meetings and formally announced (eg wandering around the State Fair with a clipboard is not a meeting). Voters would sign a register just like they do when they vote, and the register would be turned over to election officials in a reasonable time period (a week or two should be sufficient).
Parties could conduct higher level conventions if they wished. A nomination could only be made at a convention whose geographical coverage includes the area which the nomination is being made for. If a party wished to make a statewide nomination, it would need a state convention, but if it were only nominating congressional candidates it would only need to hold conventions in areas including those congressional districts.
After the conventions, parties could supplement the convention registers with a petition.
So voters could affiliate by:
(1) Voting at a primary and affiliating, even if their party was not holding a convention;
(2) Participating in a convention of their party; or
(3) Signing a supplementary petition.
Qualification of the party’s nominee for the general election ballot would be based on a percentage of all voters participating in nominating activities of all parties. This would permit qualification on the basis of individual districts, counties, or statewide. Since voter registration is tied to residence, it is simple to determine which areas a voter’s party participation counts for.
Parties that qualified statewide, or in areas that had a modest proportion of the population (say 10%) would qualify to nominate by primary at the next election, at their discretion.
Why would anyone consider Texas a model? In the past 40 years, Texas has left more significant presidential candidates off its ballot than any other of the seven most populous states. Those omitted candidates includes John Schmitz in 1972, Roger MacBride in 1976, Barry Commoner in 1980, David Bergland in 1984, Lenora Fulani in 1992, John Hagelin in 2000, Ralph Nader in 2004, Chuck Baldwin in 2008, Cynthia McKinney in 2008, and Virgil Goode in 2012. All the candidates I listed were on enough state ballots to have theoretically been elected.
Ohio is constitutionally obligated to nominate by primary, which is why the legislature tries to go that route. And, of course, because they want to have the presidental primary early they make such unreasonable deadlines.
Yes. This is good news. Sic it to those challenges, Gary!
It’s not clear that Ohio is constitutionally obliged to provide primaries for newly-qualifying parties. That provision has been in the Ohio Constitution since approximately 1910, yet Ohio had many minor parties on the ballot during the period 1910 through 1936, as well as 1946, and Ohio didn’t give them primaries. Also minor parties appeared on the ballot in 1968, 1970, 1976, 1996, and 2008, that didn’t have primaries. Ohio could simply define “party” in a way that includes only the Democratic and Republican Parties, if it wanted, and label other qualified parties as “political bodies.” Some other states use such terminology. For example, the Georgia Libertarian Party is on the ballot automatically for all statewide office but it does not meet the state’s definition of “political party.”
I am open for another system in Ohio, as long as we can register and get names of the supporters. Only way to get voter registration in Ohio is via a party primary. The Ohio primaries are for the parties, lets face it.
All of this seems so needlessly complicated. I never understood, other than being a self-serving protectionist measure on the part of the Ds and Rs, why there are any restrictions or laws at all on the internal governance or operations of political parties, and what harm there could possibly be to a state to print the name of a political party on the ballot next to a candidate. (and let whomever is constitutionally qualified and files a document attesting such — appear on the ballot)
California is famous for their multitude of candidates in a given race. There is no harm to the state, or to the voters with such a practice.
Louisiana allows anyone to be on the ballot who files a single sheet of paper on time (within a 3 day window) attesting that they are eligible for the office, and how they want their name to appear on the ballot , and paying their qualifying fee which is usually quite reasonable. (you choose your party by affiliating at voter registration. You can change it at any time very easily)
I don’t understand why anyone has to gather petition signatures EVERY election to be put on a ballot. Such a requirement accomplishes nothing in regard to any state interest.
I also don’t understand why parties have to CONTINUALLY qualify. They shouldn’t have to qualify EVER. A candidate should declare for office — pay their fee (which covers election costs based on the size of the race) — and their party is whatever they say it is. (but should show nomination papers from that party)
My only major beef with Louisiana law is that they dictate how you have to be internally structured based on how many members you have, and parties have no say on who uses their label on the ballot.
But if I have to live with that instead of absurd petitioning requirements each election, or a million hoops to jump through and court cases every time, I’ll take it.
“Top-two” establishes a single party system controlled by the state. It’s essentially state sponsored c o m m u n i s m and eliminates free elections. If adopted nationwide it would mean that the US had adopted an election system equivalent to the old USSR.
“Top-two” and it’s evil supporters should be opposed by everyone who believes in liberty and free elections. The supporters of “top-two” are attempting a permanent takeover of America’s electoral system so that no alternative ideas or candidates can ever challenge the ruling elite.
#6 Why would anyone consider Texas a model?
Because the US Supreme Court has upheld the Texas model. Texas and Ohio, unlike California, do not maintain a permanent record of the political beliefs of its citizens.
Texas, unlike Ohio and California does not require pre-qualification. Texas, unlike California and Ohio permits concurrent nomination and qualification.
In California, before the recent Top 2 Open Primary reform, party affiliation was literally a declaration of intent to vote in the subsequent primary. That is, California was checking whether there was enough interest to hold a primary. But that has to be done in advance. Contrast with Texas that simply lets the modicum of interest be demonstrated during the nominating process.
The US Supreme Court opinion in ‘American Party of Texas vs. White’ said it is “too plain for argument” that a State may require a party to nominate by primary or convention.
In 1972, the American Party attempted to qualify, but it only attracted 2,700 voters to its precinct conventions, and 5,100 more for its supplemental petition of the 22,000 needed for qualification.
In 1976, the American Party did qualify, as well as an independent candidate. As a write-in candidate, Peter Camejo received 6 times as many votes as MacBride.
In 1980, the Libertarian Party did qualify, as well as independent candidate. Did Commoner attempt to qualify?
In 1984, the Libertarian Party failed to qualify, but an independent candidate did.
Lenora Fulani qualified in 1988, so the process was not to onerous. Perhaps she didn’t have as much support in 1992. Nationwide, her vote in 1992 was 1/3 that of 1988.
The NLP party did qualify in 1996. Did it attempt to qualify in 2000?
Ralph Nader qualified as the Green Party candidate in 2000. Did he attempt to qualify as an independent in 2004?
The US Taxpayers Party had qualified in 1996, how much effort did the Constitution Party attempt in 2008 and 2012? The Green Party qualified in 2000, and subsequently qualified in 2010, a non-presidential election.
All the candidates or parties they represented other than Commoner did qualify at other elections during the past 40 years.
How close did the Constitution Party come to qualifying? They did register this year.
This challenge didn’t pass the laugh test, that’s why it was withdrawn.
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