ARIZONA JUDGE SAYS LISTING ONLY THE DEMOCRATIC AND REPUBLICAN PARTIES ON REGISTRATION FORMS IS OK

On March 19, U.S. District Court Judge Cynthia K. Jorgenson ruled that even though Arizona has five qualified parties, all of which have their own primary, it is constitutional for the voter registration forms to list only the Democratic Party and the Republican Party. Arizona Libertarian Party v Bennett, 4:11cv-856. The Green Party is also a co-plaintiff, but Americans Elect isn’t.

The Arizona voter registration form has a section that asks the applicant to choose a party. It has three checkboxes, "Republican", "Democratic", and "other." The "other" choice has a very short blank line, and anyone who wants to register as an independent, or as a Libertarian, or as a Green, or any other party, must write in the name of the party on that line.

The decision will be appealed. The law governing the voter registration form says only the two largest parties should be listed on the form.

The decision barely discusses the state interest in listing only the Democratic and Republican Parties. It says, "The Secretary of State argued that Arizona has a strong interest in the stability of its political system, and that the Constitution permits a State’s Legislature to decide that political stability is best served through a healthy two-party system. Further, the Secretary points out that neither the Supreme Court nor the Ninth Circuit have recognized a party’s right to be listed on a registration form or for no specific parties to be listed."

No other state that always holdsprimaries for all qualified parties has ever had a voter registration form that only lists some of the qualified parties yet not all of them. Therefore, it is not surprising that there are no precedents on this issue.

The decision says that Connecticut and Florida use voter registration forms that mention only the Democratic and Republican Parties. However, neither of those states has a law saying only the two largest parties should be listed on the voter registration form. Connecticut law provides that only parties that nominate by primary (i.e., those that polled 20% for Governor in the last election) should be listed on the form; smaller qualified parties nominate by convention. When Connecticut did have a third party that qualified for its own primary, A Connecticut Party (which had its own primary in 1992 and 1994), Connecticut listed A Connecticut Party on the voter registration forms.

Florida law says only the parties with 5% of the registration should be listed. It would be wildly impractical for Florida forms to list all the qualified parties, because Florida makes it so easy for a group to be a qualified party, there were 71 qualified parties at one point in 2010. Parties are ballot-qualified in Florida if they submit a list of officers and a set of bylaws. The reason Florida had so many parties in 2010 was that one eccentric individual, Josue Larose, qualified 40 parties. In 2011 the legislature provided that party officers must be registered members of their own party, and must file detailed financial reports and have some financial activity, so Florida was able to trim the number of qualified parties down to seventeen.

Florida has never held a statewide primary for any party other than the Democratic and Republican Parties, because the state only prints up primary ballots for parties with a contest, and in any event won’t hold presidential primaries for parties with registration under 5%.

By contrast, Arizona always holds a primary for all qualified parties, even if no one files to be on that party’s primary ballot for any office. Arizona permits write-in candidates in primaries (unlike Florida and Connecticut) and write-in candidates frequently win minor party primaries in Arizona, and then appear on the November ballot.

The decision does not mention that in Arizona, minor parties generally can only manage to remain ballot-qualified if they keep their registration above two-thirds of 1% of the total. The Green Party does not have enough registered voters just now to remain on the ballot, and will be removed in November 2013 unless it grows from 5,000 to approximately 21,000 members. Obviously, if the party were listed on the form, it would be far easier for it to meet this hurdle.

The decision did not mention anything substantive from Anderson v Celebrezze, the 1983 U.S. Supreme Court decision which said that states cannot discriminate against minor parties and independent candidates Anderson says, "A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and – of particular importance – against those voters whose political preferences lie outside the existing political parties."

There is no evidence that listing all parties entitled to primaries on the voter registration form would injure "stability". No political scientist has published any book or other writing during the last 25 years that says stability is threatened by nondiscriminatory election laws.

On February 27, U.S. District Court Judge Philip A. Brimmer upheld Colorado campaign finance law that says individuals may contribute $400 to a legislative candidate who is nominated by primary, but only $200 to an individual who is nominated by petition, or by convention, or who is a write-in candidate. Riddle v Hickenlooper, 10-cv-1857. Judge Brimmer, like Judge Cynthia Jorgenson (who wrote the Arizona opinion described in the preceding article) is a George W. Bush appointee.

Because Democrats and Republicans always run in primaries in Colorado, whereas minor party members almost always are nominated in convention, th
e law in effect discriminates in favor of Republican and Democratic candidates and against all others. The ruling says the law does not violate Equal Protection because a candidate who runs in a primary must compete in "two elections", i.e., the partisan primary and then the election itself.

However, that analysis is flawed. In recent Colorado legislative primaries, 89% of the time, only one candidate is on the ballot. Obviously, it isn’t hard for a candidate to win when there is no primary opponent.

Furthermore, one can argue that a minor party, independent, or write-in candidate needs more contributions than the typical major party member, because there is an built-in advantage for a Democrat or a Republican, because over half the voters support one or the other of those two parties, and it is difficult for a non-major party candidate to overcome that.

The lead plaintiff, Joelle Riddle, wanted to contribute $400 to Kathleen Curry, who was a write-in candidate in the general election. It obviously takes a bigger campaign to elect a write-in candidate who must defeat opponents who are listed on the ballot. Plaintiffs will appeal.

The decision seems to contradict the U.S. Supreme Court decision Davis vFederal Election Commission, 554 U.S. 724 (2008). That decision struck down a federal campaign law that said when a candidate for Congress has an opponent who spends more than $350,000 of his or her own money, campaign contribution limits that apply to the opponent of the wealthy candidate are relaxed.

The U.S. Supreme Court Davis opinion said government can’t tinker with the campaign contribution limits just to help certain kinds of candidates. The limits are there to prevent bribery, not to equalize resources. The philosophy behind the Davis decision is that contribution limits must be the same for all candidates in the same race. Judge Brimmer’s opinion acknowledges the Davis decision but says it isn’t relevant.

During March, the Libertarian Party won two important procedural victories in two courts:

California: on March 6, the 9^th circuit ruled that the Libertarian Party and two of its activists have standing to challenge laws that make it illegal for anyone to circulate a petition for a candidate if the circulator doesn’t live in the candidate’s district. Libertarian Party of Los Angeles County v Bowen, 11-55316.

The U.S. District Court had ruled that the plaintiffs don’t have standing, because the Secretary says she doesn’t enforce the residency requirement. However, her web page mentions the restriction (in the section that tells candidates how to get on the ballot) and doesn’t say that it isn’t enforced. The same web page also mentions a separate law, saying no one can run for the legislature who hasn’t lived in the district one year. But her web page says that restriction isn’t enforced, even though it is in the state Constitution.

On March 20, the Secretary of State asked for reconsideration in front of a larger panel of judges. She says her web page can’t mention that she doesn’t enforce the circulator residency requirement, because in 1978 a law was passed making it illegal for an executive state official to declare a law unconstitutional. Meanwhile, a bill repealing the residency restrictions, SB 213, has passed the Senate Elections Committee.

federal law: on March 18, U.S. District Court Judge Robert L. Wilkins, an Obama appointee, ruled that the lawsuit filed by the Libertarian Party (Libertarian National Committee v FEC, 11-cv-562) is a substantial case, and therefore it can go before the entire panel of judges on the U.S. Court of Appeals, D.C. Circuit. The case challenges a ruling by the Federal Election Commission that the Libertarian Party can’t immediately take possession of a bequest of $217,734.

The money was left to the party by Raymond Burrington, who died on April 26, 2007. The FEC says the McCain-Feingold law does not permit anyone to give more than approximately $30,000 to a national committee of a political party in any one calendar year. Therefore the FEC said the party can only receive $30,000 per year, and the rest of the money is unavailable to the party.

Because the party wants to spend the money, in part, on its candidates for federal office, in order for the party to win the lawsuit, it must also challenge part of the 1974 federal campaign law, and challenges to that law’s constitutionality, if "substantial" must go before all the judges of the U.S. Court of Appeals. The FEC had argued that Judge Wilkins should find that the case is not "substantial", but Wilkins found that it is substantial. He wrote, "the anti-corruption interests that would be implicated by allowing the Libertarian National Committee to receive the entire bequest all at once may be minimal." One important detail of this case is that Burrington did not tell the party about his will.

California: a trial will probably be held in Rubin v Bowen on February 18, 2014. This is the case in Superior Court in Alameda County filed by the Peace & Freedom, Libertarian, and Green Parties against Prop. 14, the top-two primary system.

District of Columbia: on March 18, the U.S. Supreme Court refused to hear Libertarian Party v D.C. Board of Elections, 12-836. The lower courts had ruled that the Constitution does not require officials to count the number of write-in votes for declared presidential candidates. The case had begun in 2008, when Bob Barr was not on the ballot but he had filed a write-in declaration of candidacy, along with a slate of presidential elector candidates, in accordance with D.C. law. Even though he was the only declared write-in presidential candidate, the Board refused to count his votes. The lower courts said the interest in saving money is more important than treating each voter equally.

Georgia: on March 20, U.S. District Court Judge Richard Story refused to reconsider his decision in Green Party of Georgia v State, n.d., 1:12cv-1822. The issue is whether Georgia’s presidential ballot access petition is too severe; it hasn’t been used since 2000. Judge Story had dismissed the case on July 17, 2012, before the state had answered the Complaint. When a rehearing request was filed, he took no action on it for over eight months. He still doesn’t acknowledge that the U.S. Supreme Court said in 1983 in Anderson v Celebrezze, "The State has a less important interest in regulating Presidential elections than statewide or local elections." The Green and Constitution Parties will appeal.

Nevada: on March 11, the 9^th circuit heard arguments in Townley v Miller, 12-16881. The issue is the state law that says "None of these candidates" should be on primary and general election ballots, for statewide office.

The groups that want "None of these candidates" removed from the ballot say the law authorizing it is unconstitutional, because if it wins, there is no effect, and therefore voters who vote for it are being discriminated against. The Nevada Republican Party is one of the groups in the lawsuit. The hearing went well for the state. Judge John Noonan, one of the three judges, said, "I’ll be candid", and went on to say that he thought the lawsuit is a waste of court resources.

North Carolina: on March 1, U.S. District Court Judge Graham Mullen, a Bush Sr. appointee, upheld the state’s May petition deadline for newly-qualifying parties. The case is North Carolina Constitution Party v Bartlett, 3:12cv-192, w.d. He implied that the two plaintiff political parties, the Constitution and Green Parties, don’t have standing because they did not make much
effort to petition. He did not mention an earlier reported U.S. District Court case from North Carolina, Greaves v Board of Elections, which said that an independent candidate who had not petitioned did have standing to challenge the April deadline for independent candidates. Nor did he mention any of the other 51 precedents which have struck down early deadlines, other than Anderson v Celebrezze. The parties have already filed an appeal.

Pennsylvania: on March 7, U.S. District Court Judge Lawrence Stengel, a Bush Jr. appointee, ruled that neither the Constitution, Green, nor Libertarian Parties has standing to challenge the state’s unique challenge system for petitions, which put petitioning groups at risk of over $100,000 if their petition is found deficient. Constitution Party v Aichele, e.d., cv-12-2726. The parties will appeal.

Vermont: the State Supreme Court will hear Anderson v State, 2012-272, on March 27. This is the Justice Party’s case against the state’s cumbersome procedures for petitioning onto the general election ballot.

Virginia: on March 20, the 4^th circuit heard oral arguments in Libertarian Party of Virginia v State Board of Elections, 12-1996. The issue is the state’s ban on out-of-state circulators. The lower court had invalidated the ban, and the state appealed, arguing that out-of-state circulators who commit fraud are difficult to find. The three judges said little to reveal their thoughts, but one of the judges said he had once been a prosecutor and he did not agree that it is necessarily tough to locate individuals just because they aren’t state residents.

California: on March 19, SB 213 unanimously passed the Senate Elections Committee. It repeals all residency requirements for petitioners.

Nebraska: on March 15, LB 349 passed the Senate Government, Military and Veterans Affairs Committee. It repeals the law that bars primary voters from signing for an independent presidential candidate.

New Hampshire: on March 6, the House unanimously passed HB 521, which establishes a committee to "study all current New Hampshire election laws and procedures and review all options to increase participation and access to the ballot." The bill says the committee "shall consult with and solicit testimony from the public."

Oklahoma: on March 18, SB 668 was sent to the House Judiciary Committee. It lowers the number of signatures for a newly-qualifying party in midterm years from 5% of the last presidential vote, to 5% of the last gubernatorial vote. The bill had already passed the Senate.

Virginia: on March 18, the Governor signed SB 690, which lowers the presidential petition for both primaries and the general election from 10,000 to 5,000 signatures. On March 25 he signed SB 1049, which says inactive voters may sign petitions.

Arizona: on March 7, the House passed HCR 2026, which says that in 2014, the voters vote on whether to eliminate the public funding program that has existed since 1998. The vote was 31-27. Four Republicans and all Democrats voted "no." On March 19, the Senate Elections Committee passed the bill 4-3.

California: Assemblymember Kristen Olsen (R-Modesto) has introduced ACA 10 and AB 1075. They would provide that if a candidate for legislature receives at least 60% in the June primary, that office would not appear on the November ballot, and the candidate would be deemed elected. If this had been in effect in 2012, eight of the twenty State Senate races, and 21 of the eighty Assembly races, would not have appeared on the November ballot.

Connecticut: the Joint Government Administration and Election Law Committee has introduced a bill saying that parties would be forbidden to nominate a non-member. The bill’s purpose is to ban fusion. At a three-hour hearing on March 25, dozens of witnesses testified against the bill.

Idaho: on March 22, the legislature passed SB 1108, which makes it far more difficult for statewide initiatives to get on the ballot. Current law requires a petition signed by 6% of the registered voters, but they can live anywhere in the state. The bill would require the signatures of 6% of the registered voters in at least 18 of the state’s 35 legislative districts.

Michigan: some Republican leaders in the state legislature have said they will introduce a bill to either provide that each U.S. House district elects its own presidential elector, or that the number of electoral votes received by each presidential candidate is proportional to the popular vote within the state. To counter that, seven Democratic State Senators have introduced a state proposed constitutional amendment, Joint Resolution P, that would preserve the current winner-take-all system.

North Dakota: two bills have been introduced to make it more difficult to put initiatives on the ballot. The Senate passed SB 2183, to require that petitioners must have lived in the state for at least two years. But the House Political Subdivisions Committee killed the bill. Still pending is HB 1397, which would make it illegal to pay petitioners. That bill passed the House 84-7 even though it is flatly unconstitutional.

South Dakota: HB 1018 has been signed into law. It lets a qualified party remove itself from the ballot, if the national chair and the state chair request it. The idea for the bill came from the Secretary of State, because Americans Elect is on the ballot for 2014. However, it is not clear that Americans Elect can remove itself, since it doesn’t have any party officers any longer.

Radicals in Power, the New Left Experience in Officeby Eric Leif Davin, 298 pages, hard cover, 2012, Lexington Books.

Davin wrote this book because there is no other book about the New Left that tells the history of the New Left figures who turned to electoral politics, and despite their youth and lack of experience, got elected to local office. Most of the book relates events that happened between 1964 and 1984.

Chapter One is mostly about Berkeley, although it includes information about La Raza Unida in Texas, and also a smaller college town in California, Cotati, where Peace & Freedom Party members briefly held a majority on the city council.

Chapter Two is about Lawrence, Kansas, and Aspen, Colorado, where radicals captured Democratic Party nominations and, in one case, elected someone.

Chapter Three is about Kent State, and how students injured in the tragic 1970 campus shooting eventually were elected to local office.

Chapter Four is about Madison, Wisconsin, and the rise of Mayor Paul Soglin.

Chapters Five, Six, and Seven are about the Peoples Party of the 1970’s, and how the party’s Michigan branch elected candidates in partisan elections in both Ann Arbor and Ypsilanti.

Chapters Eight through Twelve cover Urbana, Detroit, Boston, and Santa Cruz.

Chapter Thirteen covers Burlington, Vermont, starting with the founding of the Liberty Union Party in 1970, and then the Citizens Party, the Bernie San
ders campaigns, and the Progressive Party. The Citizens Party and the Progressive Party both won partisan elections in Vermont.

Fortunately, Davin has been interested in this topic for forty years, and during the 1970’s and 1980’s he interviewed most of the people who won the races that are covered in the book. A great deal of the book consists of the interviews. If he hadn’t conducted those interviews in the past, the book could not have been written, because many of the key figures are no longer living.

Many activists of the New Left did not believe in electoral action, and some of them participated in civil disobedience, attempts to block streets and access to government buildings, and setting off bombs. All of this activity is also described in the book. Davin doesn’t moralize, but anyone reading the book will realize that, at least for the New Left, the electoral road (in the places where it succeeded) accomplished more than other activities.

It would be a blessing if legislators and judges would read this book, because they might learn how much harm is done when people are blocked from electoral activity. Unfortunately, the publisher has put a price of $80 on the book. If enough libraries buy the book, the publisher will create a paperback, which will be considerably cheaper. Please ask your local library to buy the book.

State	Name of Winner	Year	Party (or independent status)
Alabama	Robert Miller Patton	1865	Whig
Alaska	Walter J. Hickel	1990	Alaskan Independence
Arizona	– – –	– –	– – –
Arkansas	– – –	– –	– – –
California	Hiram Johnson	1914	Progressive
Colorado	Davis H. Waite	1892	Peoples
Connecticut	Lowell Weicker	1990	A Connecticut Party
Delaware	Peter F. Causey	1854	American
Florida	Sidney J. Catts	1916	Prohibition
Georgia	James M. Smith	1872	Liberal Republican
Hawaii	– – –	– –	– – –
Idaho	Frank Steunenberg	1896	Peoples
Illinois	Joseph Duncan	1834	Whig
Indiana	Samuel Bigger	1840	Whig
Iowa	– – –	– –	– – –
Kansas	L. D. Lewelling	1892	Peoples
Kentucky	Charles S. Morehead	1855	American
Louisiana	Andre B. Roman	1838	Whig
Maine	Angus B. King	1998	independent
Maryland	Thomas Holliday Hicks	1857	American
Massachusetts	Henry J. Gardner	1856	American
Michigan	William Woodbridge	1839	Whig
Minnesota	Jesse Ventura	1998	Reform
Mississippi	Benjamin G. Humphreys	1865	Secessionist Whig
Missouri	Frederick Bates	1824	National Republican
Montana	Robert B. Smith	1896	Peoples
Nebraska	William A. Poynter	1896	Peoples
Nevada	Reinhold Sadler	1898	Silver
New Hampshire	Ralph Metcalf	1855	American
New Jersey	Charles C. Stratton	1844	Whig
New Mexico	– – –	– –	– – –
New York	Washington Hunt	1850	Whig
North Carolina	Jonathan Worth	1866	Conservative
North Dakota	William Langer	1936	independent
Ohio	Seabury Ford	1848	Whig
Oklahoma	– – –	– –	– – –
Oregon	Julius L. Meier	1936	independent
Pennsylvania	James Pollock	1854	Whig
Rhode Island	Lincoln Chafee	2010	independent
South Carolina	James L. Orr	1865	Conservative
South Dakota	Andrew E. Lee	1896	Peoples
Tennessee	William G. Brownlow	1865	Whig
Texas	J. W. Throckmorton	1866	Conservative
Utah	– – –	– –	– – –
Vermont	Stephen Royce	1854	Whig
Virginia	William E. Cameron	1881	Readjuster
Washington	John R. Rogers	1896	Peoples
West Virginia	– – –	– –	– – –
Wisconsin	Orland S. Loomis	1942	Progressive
Wyoming	– – –	– –	– – –

Dashes indicate states that have never elected a Governor who wasn’t the Democratic or Republican nominee.

On March 12, Bill Bolling, Virginia’s Lieutenant Governor, said he won’t be an independent candidate for Governor this year. He had been elected Lieutenant Governor as a Republican in 2009, but he has expressed dissatisfaction with Ken Cuccinelli, who will be the Republican gubernatorial nominee this year.

Bolling might have been discouraged by the history of Virginia gubernatorial elections. The state hasn’t elected anyone Governor who wasn’t the Democratic or the Republican nominee since 1881. See the chart on page five for information on the last time each state elected a Governor who wasn’t a Republican or Democratic nominee. No southern state other than Florida has elected such a person since the 19^th century.

Virginia is one of two states that elects its Governor in the years after presidential elections; the other is New Jersey.

Burlington, Vermont elects city officers in partisan elections every March. This year, the Progressive Party won two seats on the city council. Half of the 14 members of the council are elected in staggered two-year terms. Progressives now hold four seats. The council also has one independent, and no party has a majority.

On March 6, Oregon Governor John Kitzhaber chose Matt Donohue for a vacancy on the Circuit Court, which includes Benton County. Donohue has long been a registered Green, and had also been serving on the Corvallis School Board.

Three special elections for U.S. House will be held soon. Minor party candidates are on the ballot for all of them. On April 9, Illinois holds a special election in the Second District. On the ballot are the nominees of the Democratic, Republican, and Green Parties, and three independent candidates. Although the Green party candidate and two of the three independents had been challenged, the challenger withdrew her objection to the petitions.

In the South Carolina 1^st district, a special election will be held on May 7. The Democratic, Republican, and Green Parties have nominees on the ballot. The Working Families Party is also on the ba
llot, because South Carolina permits fusion and the Working Families Party cross-endorsed the Democratic nominee.

In the Missouri 8^th district, a special election will be held on June 4. The Republican, Democratic, Libertarian, and Constitution Parties have nominees on the ballot.

The Peace & Freedom Party has launched a voter registration drive in California, in hopes of preserving its qualified party status. Unless the law changes, parties must have registration equal to 1% of the 2014 gubernatorial vote by the end of 2014, or they will go off the ballot. The latest California registration tally, from February 10, 2013, shows 61,987 registrants in PFP, but the party will probably need 110,000 in the next two years. The party has hired a full-time registration drive worker. Cindy Sheehan has declared for Governor in 2014 as a Peace & Freedom Party candidate.

On March 19, the Arizona Libertarian Party told the Secretary of State that independent voters will be permitted to vote in the 2014 Libertarian primary.

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