SIXTH CIRCUIT RULES THAT SORE LOSER LAWS APPLY TO PRESIDENTIAL PRIMARIES
LIBERTARIANS ASK FOR A REHEARING

On May 1, in a very brief opinion, the Sixth Circuit ruled that the Michigan Secretary of State did not violate Michigan election law when she kept Gary Johnson off the November 2012 ballot on the grounds that his name had appeared on the January 2012 Republican presidential primary ballot.

The part of the decision that deals with the main issue (the sore loser issue) is only one short paragraph long. Libertarian Party of Michigan v Ruth Johnson, 12-2153. It says that the U.S. District Court decision was correct, and that the case is not moot. The part saying the District Court was correct is only one sentence long.

However, the U.S. District Court decision, issued last year, did not thoughtfully address the issue. Much of the U.S. District Court decision explained that the Libertarian Party had been too slow to file its briefs, and therefore the party was to blame for the outcome. However, the purpose of the 6^th circuit appeal is to settle this important issue for future elections, not only in Michigan but in all the states of the 6^th circuit. The issue has virtually never before been litigated, because until Michigan kept Gary Johnson off the ballot in 2012, no minor partycandidate for president had ever been kept off any state’s general election ballot on the grounds that he or she had run in a major party presidential primary.

The U.S. District Court decision was also faulty because it erroneously said that there was no Michigan precedent on whether sore loser laws apply to President.

The decision said John B. Anderson was not on the Michigan presidential primary ballot in 1980, so that when he appeared on the November ballot in Michigan as the nominee of the "Anderson Coalition Party", that didn’t set a precedent.

Actually, that is not true. Two days later, the U.S. District Court re-issued its opinion to correct the error, but the judge did not re-think the issue. In 1980, John Anderson’s name was on the Republican presidential primary ballot in Michigan, so that did create a precedent that the Michigan sore loser law doesn’t apply to presidential primaries.

Presidential candidates whose name appeared on the ballot in major party presidential primaries, and who also then appeared on the November ballot as minor party or independent nominees, include:

1912: Theodore Roosevelt, Republican primaries, then Progressive Party nominee.

1924: Robert La Follette, Republican primaries, then Progressive.

1932: Jacob Coxey, Republican primaries, then Farmer-Labor.

1952: Douglas MacArthur, Republican presidential primaries, then Christian Nationalist and Constitution.

1968: Eugene McCarthy, Democratic presidential primaries, then New Party.

1980: John B. Anderson, Republican primaries, then independent in most states and various minor parties in others.

1984: Lyndon LaRouche, Democratic primaries, then independent.

1988: David Duke, Democratic primaries, then Populist.

1992: Lenora Fulani, Democratic primaries, then New Alliance.

2008: Ron Paul, Republican primaries, then various minor parties in Montana and Louisiana.

2008: Alan Keyes, Republican primaries, then various minor parties in three states.

2012: Gary Johnson, eight Republican primaries, then Libertarian.

Some of these candidates were not declared candidates in November, but they stood by passively as various minor parties put them on the November ballot anyway. This is true for MacArthur, McCarthy, and Paul.

The reason states haven’t applied sore loser laws to presidential candidates is that the U.S. Constitution, Article II, plainly says that in November, states are electing presidential electors. Presidential candidates’ names appear on the November ballot, not as candidates, but as markers for competing slates of presidential elector candidates. The election laws of all states also make this clear.

The presidential elector candidates are the true candidates in November, and they aren’t sore losers, so sore loser laws can’t apply to president. They could only be made applicable if they were re-written to say that no candidates for presidential elector may say they are pledged to vote for a sore loser. Such a law might violate the free speech rights of the elector candidates, especially if their candidate meets the constitutional requirements to be president.

Applying sore loser laws to presidential candidates is not rational, because the group nominating the presidential electors would still be free to say its electors are pledged to some other individual with the same name as the desired presidential candidates. The Michigan Libertarian Party did try that in 2012, but the state ignored the party’s certification that if former Governor Gary Johnson’s name could not be placed on the ballot, then its electors are pledged to another Gary Johnson, a party activist who lives in Austin, Texas. When the party’s lawsuit to get Governor Johnson on the ballot lost in U.S. District Court last year, the party filed a new lawsuit to get the Texan on the ballot, but the courts ruled that lawsuit had been filed too late. But that strategy would still be possible in future elections.

The party has asked for a rehearing in the Sixth Circuit. As of this writing, it is still pending.

On May 23, the California Assembly passed AB 141 by a vote of 65-8, and AB 1038 by a vote of 47-18. Both bills, if enacted into law, will decrease the number of candidates on the November ballot.

AB 141, and its companion measure, a constitutional amendment, ACA 9, provide that a write-in candidate for Congress or partisan state office who places second in June cannot advance to the November ballot, unless the candidate polls a substantial number of write-ins. The number would be approximately 2,300 for U.S. House, 3,000 for State Senate, 1,500 for Assembly, and 120,000 for statewide office.

Current law says the candidates who place first and second go on the November ballot. This is in the State Constitution, so even if the legislature passes AB 141, it can’t take effect unless the voters approve the idea in June 2014.

In 2012, there were eight elections in which only one candidate appeared on the primary ballot. In three of them, a Republican filed for write-in status in the primary and came in second (obviously it isn’t hard to come in second when only one name is on the ballot). In another three of these eight districts, a Peace & Freedom Party member filed for write-in status. Therefore, in six of these districts, the voters had a choice of two candidates in November. There were another two elections, both for the Assembly, in which no one filed as a write-in.

If AB 141 had been in effect, California would have had eight elections, instead of two, with only one candidate on the November ballot. Six districts had write-in candidates, and none of them received even close to the number of write-ins required by the bill. Nevertheless, lots of people voted for them in November. James Bennett, for Assembly, 31^st district, received 36%; Frank Miranda, for State Senate, 3rd district, received 34%. Because the legislature eliminated write-in space on the November ballot last year, for Congress and state office, when only one name appears on the November ballot the voter has no voice whatsoever in that election. It is difficult to believe that voters will vote for more one-candidate elections.

The only minor party candidates who appeared on the November ballot in 2012, other than for President, were the three Peace & Freedom Party candidates who got on the ballot via write-ins at the June primary. Therefore, if AB 141 had been in effect in 2012, no minor party candidates would have been on the November ballot for any office other than President.

AB 141 is sponsored by Jeff Gorell, a Republican from Ventura County. The only group that supports the bill is CACEO, the California Association of County Election Officials. The bill is opposed by the ACLU, Californians for Electoral Reform, and three of the state’s smaller parties.

AB 1038

AB 1038 makes it illegal for a party to pay registration drive workers if the payment is based on how many registration cards they obtain for any particular party. Because parties can only remain ballot-qualified in California if they have approximately 110,000 registrants, the bill strikes at the ability of a party to do a registration drive. The sponsor is Assemblymember Richard Pan, who authored the same bill in two previous sessions of the legislature. Both times Governor Jerry Brown vetoed those bills. The bill passed the Assembly by a vote of 47-23. All of the "no" votes were cast by Republicans, except two Democrats, Mike Gatto and Bob Blumenfield, voted "no."

On May 7, Nebraska’s Governor signed LB 349, which repeals the law that says presidential primary voters can’t sign the petition for an independent presidential candidate.

Nebraska petitions for candidates for office other than President, and petitions to qualify a new party, never did ban primary voters from signing. The Secretary of State asked the legislature to repeal the restriction. It didn’t seem to serve any purpose, and it made the job of checking independent presidential petitions more difficult.

As a result, Texas is the only state in the nation that still bans primary voters from signing any petition for independent candidates or newly-qualifying parties. At one time eleven states had such laws, but besides Nebraska, the other states that repealed them are Arizona, California, Colorado, Illinois, New York, Oregon, Rhode Island, Washington, and West Virginia. These laws not only make petitioning more difficult, they make extra work for election officials when they check the petitions for validity. Texas has had the restriction in place for independent candidates since 1905.

Alabama: the legislature adjourned without passing SB 265, the bill to ease ballot access. Also, SB 405, which would have established registration by party, failed to pass.

California: on May 16, the Assembly passed AB 1419, which moves the deadline for newly-qualifying parties in presidential election years from January to July.

Colorado: on May 10, the Governor signed HB 1303, which converts the state to postal balloting. Every registered voter will automatically receive a ballot in the mail. Those who don’t have secure postal delivery can vote in voting centers. Also individuals who had not registered to vote can register on election day at these voting centers. Washington and Oregon have all-postal balloting, but only Colorado combines that with election-day registration.

Illinois: on May 15, the legislature passed HB 226. It lets 17-year-olds register to vote, and to vote in a primary if they will be age 18 by the general election. Because the Illinois primary is in March, the bill has greater impact than similar laws that exist in a dozen other states with later primaries. Such 17-year-old registrants will be able to sign ballot access petitions, but they won’t be able to circulate them.

North Carolina: on May 13, the House passed HB 794, but it was amended before it was passed. Originally it lowered the number of signatures for newly-qualifying parties and independent candidates, but now it just requires the legislature to study ballot access later this year.

Oregon: on May 22, SB 146 was amended to include a provision that will help parties remain ballot-qualified. Existing law says a party must meet the vote test every election (unless it has so many registrants that it doesn’t need to worry about the vote test). The bill says the vote test must only be met every four years. The bill passed the Senate Rules Committee on May 24.

Texas: on May 20, the legislature passed SB 817, a bill requested by the Libertarian Party. It moves the state convention date for qualified parties that nominate by convention from June to April. The party felt its nominees would have better campaigns if the party were allowed to nominate earlier in the year. The bill also lets individuals run for public office and simultaneously hold office, but only for the smaller qualified parties.

Arizona: on May 22, a U.S. District Court refused to reconsider its March decision, upholding the state voter registration form. The law says only the two largest parties should have their own checkbox on the form. If someone wants to register as an independent, or as a member of one of the other three ballot-qualified parties, the voter must check the "other" box and write in the choice.

California: on May 20, the state told a U.S. District Judge that it may appeal Libertarian Party of Los Angeles County v Bowen to the U.S. Supreme Court. The issue is whether the party has standing to challenge the law that won’t let petitioners circulate a petition to get a candidate on the ballot, unless the circulator lives in the candidate’s district. The 9^th circuit had ruled that the party does have standing, and had sent the case back to the U.S. District Court for a decision on the issue itself.

On May 14 Congressmen Mark Pocan (D-Wisconsin) and Keith Ellison (D-Minnesota) introduced HJR 44. It is a proposed amendment to the U.S. Constitution that would guarantee the right to vote to every U.S. citizen who is at least age 18. So far it has nine other sponsors, all of them Democrats. It would permit ex-felons and felons to vote in all states, for all public elections.

On May 14, the Florida Election Commission voted 4-1 that the Secretary of State’s $70,000 fine levied against the Libertarian Party should be reversed. The law imposes a $10,000-per-day fine on parties that are late with certain financial reports. The Commission determined that the party did file on time.

On the same day, the Commission reduced a fine against the Green Party from $10,000 to $200. The Green Party was a few hours late, but the Commission re-calculated the fine.

The charts below list every minor party member who has ever run for federal or state office in a state that uses a top-two primary, and in which at least two major party members were in the same race.

Top-two primaries have been used in Louisiana 1975 to the present (except congressional elections 2008-2010 were not top-two elections); in Washington starting in 2008; and in California starting in 2011.

The charts show that none of the 85 minor party members who have run in such elections have ever placed first or second. The system has an unbroken record of excluding all parties from the general election ballot other than the Demoratic and Republican Parties (for elections in which at least two major party candiates ran).

"Minor party" means an actual organization, i.e., a group that has officers and bylaws. In Washington, independent candidates are free to choose any party label they wish that is not longer than 15 characters and is not obscene. Some independent candidates have chosen whimsical labels, such as "Salmon Yoga", but there is no such organization, so such candidates are not included.

MINOR PARTY MEMBERS WHO RAN IN WASHINGTON TOP-TWO PRIMARIES WITH AT LEAST TWO MAJOR PARTY OPPONENTS

DATE	CANDIDATE	PARTY	OFFICE	RANK	VOTE %
8/19/08	Arlene Peck	Constitution	Lieutenant Governor	5th of 5	3.60%
8/19/08	Marilyn Montgomery	Constitution	Secretary of State	3rd of 3	6.46%
8/19/08	Glenn Freeman	Constitution	Auditor	3rd of 3	6.89%
8/19/08	Randall Yearout	Constitution	U.S. House 5	5th of 6	3.07%
8/19/08	Will Baker	Reform	Governor	8th of 10	.36%
8/19/08	Duff Badgley	Green	Governor	6th of 10	.67%
8/19/08	Gary Murrell	Green	U.S. House 6	4th of 4	3.56%
8/19/08	John H. Beck	Libertarian	U.S. House 5	6th of 6	2.14%
8/19/08	Laurence Pratt	Progressive	Representative 25-1	3rd of 3	4.88%
8/17/10	Will Baker	Reform	U.S. Senate	12th of 15	.32%
8/17/10	Mary R. Edwards	Constitution	U.S. House 4	5th of 6	3.05%
8/17/10	Randall Yearout	Constitution	U.S. House 5	5th of 6	6.04%
8/17/10	Roy Olson	Green	U.S. House 9	4th of 4	3.30%
8/17/10	Howard Pellett	Green	Representative 40-2	3rd of 3	7.51%
8/7/12	Karen Murray	Constitution	Secretary of State	5th of 7	3.83%
8/7/12	Will Baker	Reform	U.S. Senate	8th of 8	1.08%
8/7/12	Linde Knighton	Progressive	Representative 36-2	7th of 7	1.90%

MINOR PARTY MEMBERS WHO RAN IN CALIFORNIA TOP-TWO PRIMARIES WITH AT LEAST TWO MAJOR PARTY OPPONENTS

DATE	CANDIDATE	PARTY	OFFICE	RANK	VOTE %
5/17/11	Steve Collett	Libertarian	U.S. House 36	8th of 16	1.41%
5/17/11	Maria Montana	Peace and Freedom	U.S. House 36	12th of 16	.51%
6/5/12	Gail K. Lightfoot	Libertarian	U.S. Senate	9th of 24	2.09%
6/5/12	Marsha Feinland	Peace and Freedom	U.S. Senate	14th of 24	1.19%
6/5/12	Don J. Grundmann	American Independent	U.S. Senate	18th of 24	.68%
6/5/12	Kabiruddin Karim Ali	Peace and Freedom	U.S. Senate	24th of 24	.25%
6/5/12	Douglas Arthur Tuma	Libertarian	U.S. House 7	4th of 4	3.07%
6/5/12	Barry Hermanson	Green	U.S. House 12	3rd of 6	5.36%
6/5/12	Carol Brouillet	Green	U.S. House 18	4th of 4	4.09%
6/5/12	Eric Petersen	Green	U.S. House 20	5th of 6	2.07%
6/5/12	Michael W. Powelson	Green	U.S. House 30	6th of 7	2.06%
6/5/12	Steve Collett	Libertarian	U.S. House 33	4th of 7	4.35%
6/5/12	David William Steinman	Green	U.S. House 33	5th of 7	3.48%
6/5/12	Howard Johnson	Peace and Freedom	U.S. House 34	3rd of 3	6.66%
6/5/12	Anthony W. Vieyra	Green	U.S. House 35	3rd of 3	18.64%
6/5/12	Michael Benoit	Libertarian	U.S. House 50	4th of 5	5.41%
6/5/12	John H. Webster	Libertarian	State Senate 13	3rd of 4	15.45%
6/5/12	David Edwards	Green	Assembly 1	4th of 5	6.11%
6/5/12	Charley Hooper	Libertarian	Assembly 1	5th of 5	5.38%
6/5/12	Pamela Elizondo	Green	Assembly 2	3rd of 4	8.77%
6/5/12	Janice Marlae Bonser	Libertarian	Assembly 8	5th of 6	4.33%
6/5/12	C. T. Weber	Peace and Freedom	Assembly 9	6th of 6	3.01%
6/5/12	John Paul Lindblad	Green	Assembly 39	5th of 6	7.60%
5/21/13	Mohammad "O" Arif	Peace and Freedom	State Senate 16	5th of 5	.74%

Three states have used top-two primary systems. The charts on this page and the following page list all minor party members who have run in such elections for federal and state office, and in which the minor party candidates had at least two major party opponents.

These charts show that no minor party candidate with at least two major party opponents has ever placed first or second in the primary.

MINOR PARTY MEMBERS WHO RAN IN LOUISIANA TOP-TWO PRIMARIES WITH AT LEAST TWO MAJOR PARTY OPPONENTS

DATE	CANDIDATE	PARTY	OFFICE	RANK	VOTE %
11/1/75	Robbie Daniels	Libertarian	Representative 45	3rd of 3	7.92%
10/27/79	Greg Nelson	Socialist Workers	Governor	9th of 9	.35%
10/27/79	Jeremy Millett	Libertarian	Superintendent of Education	5th of 5	3.29%
9/13/80	Naomi Bracey	Socialist Workers	U.S. Senate	5th of 5	.76%
9/13/80	Tristan Junius	Libertarian	U.S. House 1	3rd of 3	2.70%
9/11/82	Suzanne Weiss	Socialist Workers	U.S. House 1	3rd of 3	6.71%
9/11/82	Rose Rummler	Libertarian	U.S. House 8	3rd of 3	1.23%
10/22/83	Nels J’Anthony	Socialist Workers	State Senate 5	3rd of 3	4.49%
9/29/84	Michele Smith	Socialist Workers	Governor	7th of 9	.14%
9/29/84	Derrick Morrison	Socialist Workers	U.S. House 2	3rd of 5	.49%
9/27/86	Nels J’Anthony	Socialist Workers	U.S. Senate	14th of 14	.18%
9/27/86	William Carter	Populist	U.S. House 7	6th of 6	3.57%
10/6/90	Jeffrey Diket	Libertarian	U.S. House 2	11th of 12	.30%
10/19/91	Michael Wolf	Libertarian	State Senate 16	3rd of 4	5.34%
10/21/95	Michael Wolf	Libertarian	Representatiive 68	8th of 8	1.90%
10/23/99	Belinda Alexandrenko	Reform	Governor	6th of 11	.69%
10/23/99	S. Roberts-Joseph	Reform	Lieutenant Governor	4th of 4	1.60%
11/7/00	John Simanonok	Libertarian	U.S. House 1	5th of 5	1.00%
11/7/00	Mike Taylor	Libertarian	U.S. House 4	3rd of 4	2.33%
11/7/00	Raymond Dumas	Libertarian	U.S. House 5	4th of 4	2.97%
11/7/00	Michael Wolf	Libertarian	U.S. House 6	3rd of 3	2.32%
11/7/00	Martin Rosenthal	Natural Law	U.S. House 1	4th of 5	1.32%
11/5/02	Gary Robbins	Libertarian	U.S. Senate	8th of 9	.19%
11/5/02	Ian Hawxhurst	Libertarian	U.S. House 1	4th of 4	3.30%
11/5/02	Wayne Clement	Libertarian	U.S. House 2	5th of 5	2.67%
11/5/02	Bill Jacobs	Libertarian	U.S. House 4	3rd of 3	2.67%
11/5/02	Vinson Mouser	Libertarian	U.S. House 5	7th of 7	.62%
10/4/03	Gregory Kahn	Libertarian	State Senate 4	3rd of 3	5.13%
10/4/03	Jason Neville	Green	State Senate 3	3rd of 3	6.05%
10/4/03	Dan Thompson	Green	Representative 105	4th of 4	7.81%
11/2/04	Richard Fontanesi	Libertarian	U.S. Senate	5th of 7	.82%
9/30/06	Raymond Clipper	Libertarian	Secretary of State	7th of 7	1.82%
9/30/06	S. B. A. Zaitoon	Libertarian	Insurance Commissioner	3rd of 3	10.61%
11/7/06	Peter Beary	Libertarian	U.S. House 1	4th of 4	1.13%
11/7/06	Gregory Kahn	Libertarian	U.S. House 2	10th of 13	.43%
11/7/06	James Blake	Libertarian	U.S. House 3	4th of 4	1.59%
11/7/06	Brent Sanders	Libertarian	U.S. House 5	3rd of 4	1.64%
11/7/06	John Watts	Constitution	U.S. House 5	4th of 4	1.10%
12/9/06	S. B. A. Zaitoon	Libertarian	State Senate 16	3rd of 3	4.09%
10/20/07	Richard Fontanesi	Libertarian	State Senate 16	3rd of 3	9.03%
10/20/07	Michael Ecuyer	Constitution	Representative 74	5th of 5	2.98%
10/20/07	T. Lee Horne	Libertarian	Governor	8th of 12	.20%
10/22/11	Scott Lewis	Libertarian	Governor	7th of 10	1.22%
10/22/11	Belinda Alexandrenko	Reform	Agriculture Commissioner	3rd of 3	5.70%
11/6/12	Caleb Trotter	Libertarian	U.S. House 2	5th of 5	2.36%
11/6/12	Jim Stark	Libertarian	U.S. House 3	5th of 5	1.21%

The fact that no minor party candidate in a top-two primary has ever placed first or second in the primary, if there were at least two major party candidates in the race, does not mean that voters never want to elect minor party candidates.

In the Minnesota primary of September, 1998, any voter was free to choose any party’s primary ballot. Jesse Ventura was on the Reform Party primary ballot, and he only polled 3% of the total vote cast for Governor in all three primaries, because most voters were eager to help choose the major party nominees. The fact that Ventura got only 3% in the open primary does not mean he didn’t enjoy a great deal of support, as shown by the fact that he won the November 1998 election.

Also, at the Vermont open primary of September 2008, any voter was free to choose the Progressive primary, but few did so. Six Progressive Party nominees were elected to the legislature in November, but none of the six of them received as many as 25 votes in the Progressive primary.

Americans Elect, founded in 2010 to place a centrist presidential candidate on the November 2012 ballot, spent approximately $12,000,000 to qualify the party for the ballot in 29 states, before abandoning the project in May 2012 because the group couldn’t attract a high-level presidential candidate. The founders have apparently lost interest in the project, even though it is still ballot-qualified in ten states, including California.

But others who also want a new centrist party have not abandoned the idea. Two books, advocating such a party, have been published, and will be reviewed in the July 1 2013 Ballot Access News. One is Resurrecting Democracy, a Citizen’s Call for a Centrist Third Party, by Robert A. Levine. The other is The Centrist Manifesto, by Charles Wheelan.

Emily J. Mathews of New York city heads a group that intends to establish a new party, called the "1787 Party" (1787 is the year the U.S. Constitution was written). The party has a centrist philosophy. On March 23, the group sought a ruling that it qualifies as a National Committee. However, on May 9, the Federal Election Commission denied the request, pointing out that the FEC can’t give "National Committee" status to a group until after it has placed a nominee on the ballot, under the party name, for at least one federal office. The proposed new party will soon establish a web page, which will probably use the address 1787forAmerica.org. The postal address is 244 Madison Ave., #1787, New York NY 10016. The party is already a registered corporation in Washington, D.C.

Evan Falchuk, a business executive, has established a new centrist party, organized only in Massachusetts. It is the United Independent Party. Falchuk plans to get on the 2014 as the party’s candidate for Governor, either with a petition of 10,000 signatures, or by a registration drive to qualify the party. That drive is underway now.

The Twelve Visions Party has placed its U.S. Senate nominee on the Massachusetts ballot, for the special election of June 25. The nominee, Richard Heos, needed 10,000 signatures. He will be the only choice on the ballot other than the Democratic and Republican nominees.

The Twelve Visions Party was established in 2009. It ran a presidential candidate, Jill Reed, in 2012, but she only appeared on the ballot in Colorado. The party is an offshoot of an older organization that promotes self-improvement. It is headed by Mark Hamilton, son of Wallace Ward (also known as Frank R. Wallace). They established Neo-tech, which changed its name to Neo-think, and which has published many self-help books.

The party wants to place the "Prime Law" in the U.S. Constitution. The text is, "Article One. No person, group of persons or government shall initiate force, threat of force, or fraud against any individual’s self, property or contract. Article Two. Force is morally and legally justified only for protection from those who violate Article One. Article Three. No exceptions shall exist for Articles One and Two."

On May 9, Kevin Halverson, sheriff of Minidoka County, Idaho, changed his registration from "Republican" to "Libertarian." He had been elected as a Republican in 2004, and re-elected twice since then.

On May 7, Green Party member Rebecca Rotzler won a partisan election for Village Board in New Paltz, New York. The village does not permit parties that are qualified for the state ballot to participate, so she had to use the label "Innovation Party." Her petition was challenged, so she had to run as a write-in, but she won on write-ins.

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