RANDOM ERROR RESULTS IN OHIO REQUIRING TWICE AS MANY SIGNATURES FOR BALLOT ACCESS

Sometimes ballot access laws, like other laws, have the characteristics they do because of trivial random events. The new Ohio ballot access law for newly-qualifying parties is a sad example. The legislature has passed SB 193, and the Governor has signed it into law. Because of a random event, the new law requires approximately 50,000 signatures for all future elections instead of 25,000.

On October 30, the House passed SB 193 after amending it to provide that in future years (years beyond 2014) the requirement should be one-half of 1% of the last vote cast. The sponsor of the bill, Senator Bill Seitz, said he would accept that amendment. The House also lowered the vote test for a party to remain on from 3% to 2%. Senator Seitz said that was OK also.

Unfortunately, the House accidentally deleted a provision of the bill that requires at least 500 signatures from each of half the US House districts in the state. On October 30, when the bill went back to the Senate for concurrence in the House amendments, Senator Seitz said he would not accept the deletion of the distribution requirement. The Senate then voted not to accept any House amendments.

On October 31, the House voted to stick to its guns about the amendments, except the House was willing to restore the distribution requirement, because it had been deleted by accident.

The bill then went to Conference Committee, which was chaired by Senator Seitz. The conference committee then rejected all the House amendments, including the important ones on the number of signatures and the vote test. And, on November 6, both Houses passed the restrictive version (it passed the House without a single vote to spare). The Governor signed the bill a few hours later.

So, if the House had not accidentally deleted the distribution requirement, the bill would have been much easier.

For 2014 only, the bill requires 27,903 signatures and a 2% vote test.

On November 8, the Libertarian Party amended its complaint in the case it had filed in September that challenges the ban on out-of-state circulators. As amended, the party’s complaint now also challenges the new ballot access law. The party argues that due process requires that the new petition requirement not be used for the 2014 election. The case is Libertarian Party of Ohio v Husted, southern district, 2:13cv953.

On November 13, the party won the part of the case that challenges the out-of-state circulator ban (see next story). The part of the case on whether the new petition can be applied for the 2014 election will be settled in December. It is likely that the party will win that issue.

The new ballot access law also will face legal challenges when it is applied in elections beyond 2014. It has at least two clear legal flaws:

(1) it says that newly-qualifying parties will no longer nominate by primary. Instead, the party will submit its party petition, and then all its nominees must submit their own separate small individual petitions. But the law doesn’t explain what to do if two candidates from the same party file for the same office. A common sense solution would be for the party to hold a nominating convention and choose one. But the Ohio Constitution does not permit parties to nominate by convention.

(2) the new law, like the old law, requires signers of the party petition to say they are "organizing" the new party.

Obviously, the voters who sign the petition are not organizing the party; the party’s founders already organized the party before they began the petition drive. The law forces signers to sign something that is not true. Similar wording on petitions to recognize new parties has been struck down in eight other states, and there are no contrary precedents. Senator Seitz was informed of this problem, but he chose to do nothing about it.

OHIO VICTORY

On November 13, U.S. District Court Judge Michael H. Watson enjoined the new Ohio ban on out-of-state circulators. The issue arose in two parallel cases, Citizens in Charge v Husted, 2:13cv935, and Libertarian Party of Ohio v Husted, the case mentioned in the story above.

The Ohio ban on out-of-state circulators had already been struck down in 2008, but the legislature re-enacted it in 2013, with an exception for independent presidential petitions. The 2013 court order says that the 2008 opinion applies to all types of petitions, not just independent presidential petitions.

TENNESSEE VICTORY

On October 31, U.S. District Court Judge William Haynes put the Libertarian Party on the ballot in a special legislative election set for November 21. Tomasik v Goins, 3:13cv-1118. The basis is that Tennessee has no workable procedure for a newly-qualifying party to get on the ballot in a special election. Furthermore, Judge Haynes had already struck down the law on how a new party gets on the ballot. The state is appealing that decision to the Sixth Circuit, but in the meantime no valid law is in effect for new party access.

ALABAMA INDEPENDENT CANDIDATE LOSS

On November 13, U.S. District Court Judge Mark Fuller refused to put James Hall on the December 17 ballot as an independent candidate in the special U.S. House election set for December 17. Hall is appealing. The case is Hall v Bennett, middle district, 2:13cv-663. In the Eleventh Circuit it is 13-15214.

Normally Alabama lets independent candidates takes as long as they wish to complete their petitions. Because this is a special election, though, the normal two-year petitioning period was not available. The state claims the candidate was free to start petitioning as soon as Congressman Jo Bonner announced that he would quit in the middle of his term. But the independent candidate petition form requires that the date of the special election be listed on the petition, and that date was not known until two months before the petition deadline, so Hall argues that in reality, he only had 57 days to get the required 5,938 valid signatures (3% of the last gubernatorial vote inside that district). Hall collected 2,835 signatures by the September deadline, and several hundred some time later.

The Eleventh Circuit ruled in 1982 that when the normal petitioning time is not available, either because the election was called on short notice or because of late redistricting, states should either lower the number of signatures or extend the deadline. That case, Citizens Party v Poythress, has been followed ever since by U.S. District Courts in Florida and Georgia, the other two states in the 11^th circuit. But Alabama, which is in the 11^th circuit, refused to follow this precedent, and Judge Fuller ignored the Citizens Party precedent. The judge feels that the 1971 U.S. Supreme Court decision Jenness v Fortson is the only precedent that matters. Jenness upheld a 5% petition for Georgia regularly-scheduled elections, but the Georgia law permitted six months to get the signatures.

It is clearly not true that Jenness means that all 5% petition requirements are constitutional, because in 1979 the U.S. Supreme Court unanimously struck down a 5% petition for Mayor of Chicago. Judge Fuller did not mention that case, which was Illinois State Board of Elections v Socialist Workers Party.

No independent or minor party candidate has ever been on the ballot in a special Alabama U.S. House election, going all the way back to 1893, the year Alabama first started using government-printed ballots. This was true even before 1971, when the petition requirement was only 300 signatures. Hall is the only petitioning candidate who submitted a petition for this upcoming election. Clearly, Alabama does not have a problem with over-crowded special congressional elections.

CALIFORNIA CANDIDATE OATH STRUCK DOWN

On November 1, a Superior Court in San Luis Obispo struck down California election laws that require candidates for party office to submit loyalty oaths before being seated. Barta v Bowen, cv11-665. The law only pertains to candidates running in the primaries of the Democratic, Republican, and American Independent Parties, and it only applies to candidates for County Central Committee of those three parties. A separate section of the election code governs party office elections for the state’s other qualified parties (Americans Elect, Green, Libertarian, and Peace & Freedom). The section of the law for those parties has no loyalty oath.

The loyalty oath says that the candidate swears that he or she is not a member of any organization that advocates the violent overthrow of the government, and has not been a member of such organization for at least five years. It was passed in 1953.

California is one of six states in which the election code still bars subversive parties from the ballot.

HAWAII DEMOCRATIC PARTY LOSES OPEN PRIMARY LAWSUIT

On November 14, U.S. District Court Judge J. Michael Seabright ruled against the Hawaii Democratic Party, in the party’s lawsuit to obtain a closed primary for itself. Democratic Party of Hawaii v Nago, 1:13cv301.

The Hawaii Constitution, ever since 1978, has required that all qualified parties nominate their candidates in an open primary. Hawaii primary voters are handed primary ballots for all parties, and in the secrecy of the voting booth, choose one party’s primary ballot and vote on it. Voter registration forms do not ask the voter to choose a party.

The Democratic Party has its own list of party members, which it compiled when it held a caucus to choose delegates to the national convention. Hawaii has never had a presidential primary, so in 2008, thousands of Hawaiian voters signed up to attend the Democratic caucuses, in order to support either Barack Obama or Hillary Clinton. The party argued that it has a freedom of association right to know which voters are helping to choose its nominees for office other than president. The decision does not rebut this notion entirely, but says the party should have submitted evidence that it is being harmed by the current system. When the Republican Party of Idaho won a similar case a few years ago, the Idaho Republicans showed with evidence that persons loyal to the Democratic Party were voting in Republican primaries. That seems to be the type of evidence that the Judge wanted.

The party has not yet decided whether to appeal, or to file a new lawsuit that includes evidence.

PENNSYLVANIA PETITION FOR 2014

The number of signatures for Pennsylvania statewide candidates in 2014 will be only approximately 17,000 signatures, because the 2013 turnout was so low. In 2012 it was 20,601.

ARIZONA EXPLAINS WHY ONLY TWO PARTIES LISTED ON REGISTRATION CARD

On November 22, Arizona filed a brief in the Ninth Circuit, defending its law that says only the two largest parties should have their own checkbox on the voter registration form. That law is being challenged by the Libertarian and Green Parties. The case is Arizona Libertarian Party v Bennett, 13-16254.

The part of the voter registration form that asks the voter to choose a party is very small. It lists the Republican Party with a checkbox, and the Democratic Party with a checkbox, and then a blank line for any other choices. The blank line is less than one inch long. No "independent" choice is listed, so people who want to register as independents are expected not to use this part of the form at all, and voters who want to register into any other party must write-in that choice.

In 2012, Arizona had five qualified parties, all with their own primary. They can only remain ballot-qualified if they either poll 5% of the vote for president or Governor, or if their registration rises to at least two-thirds of 1% of the state total. Therefore, it is very important to minor parties that they maximize their registration. Not being listed on the form is a serious problem, because probably a typical voter sees the form and assumes that the Democratic and Republican Parties are the only qualified parties. Yet the state says the burden on the parties is "miniscule".

The state says it would be too much trouble to reprint the form every time a new party qualifies or goes off the ballot. In support of that argument, the brief says that Arizona has had sixteen minor parties on the ballot at one time or another during the years since 1975. This is a factual error. The only minor parties that were on the ballot at any time since 1975 were the Libertarian, Green, Reform, Natural Law, New Alliance, Socialist Workers, and Americans Elect Parties.

The state’s brief claims that in addition the Socialist Labor, American, Arizona Independent, Restoration, United American, Citizens, Communist, Workers World, Populist, U.S. Taxpayers, and Maverick Democratic Parties were on the ballot in the years since 1975. The author of the brief is confused, because those parties only filed to have their write-ins counted; they were not on the ballot in that period.

The state also claims that if it lists all the qualified parties, that would endanger "the stability of Arizona’s political system through a healthy two-party system."

Arizona is the only state that lists some of the parties that are entitled to a primary on the registration form, but doesn’t list all such parties. There are no precedents on this issue because no other state ever behaved this way.

SIX PROFESSORS FILE AMICUS IN MICHIGAN SORE LOSER CASE

On November 4, six political science professors filed an amicus curiae brief with the U.S. Supreme Court, in Libertarian Party of Michigan v Johnson, 13-421. The issue is whether Michigan should have kept Gary Johnson, Libertarian presidential nominee, off the November ballot on the grounds that his name had appeared on the February Republican presidential primary in Michigan. Johnson had left the Republican race in 2011, and had tried to withdraw from the Republican primary, but the Secretary of State said his withdrawal was two minutes too late.

The professors are Douglas J. Amy, John C. Berg, Lisa Disch, J. David Gillespie, William P. Kreml, and Scot Schraufnagel. The amicus makes a general argument against "sore loser" laws for all federal office. It points out that Federalist Papers No. Ten, authored mainly by James Madison, said that whereas factionalism is harmful, any attempt to outlaw factionalism would cause even more harm than factionalism itself causes.

The brief also cites to recent political science research that suggests "sore loser" laws makes partisanship in Congress worse than it would be otherwise. It mentions that two states that permitted primary losers to run in the general election, Alaska and Connecticut, resulted in November victories for two "sore losers", Lisa Murkowsi and Joseph Lieberman, in 2010 and 2006.

The brief argues that the Supreme Court opinion U.S. Term Limits v Thornton, issued in 1995, robs an earlier Supreme Court opinion, Storer v Brown, issued in 1974, of any continued vitality. And it explains how difficult the rise of the Republican Party would have been if "sore loser" laws, and laws banning candidates from the ballot if they had recently switched parties, had been in effect in 1854. Finally, it points out that no other nation has such "sore loser" laws.

John B. Anderson, former independent presidential candidate, also signed the amicus. He had run in 22 Republican presidential primaries in 1980, and he left the Republican race on April 24, 1980, and become an independent candidate. He was permitted to be on the ballot in all 50 states in November. Even Michigan did not keep him off the ballot, even though the "sore loser" law had existed in 1980 and has not been amended since.

The U.S. Supreme Court will probably decide in December or January whether to hear the case. The Republican Party of Michigan has filed an amicus in this case, arguing that the Court should not hear the case because it is of no importance outside Michigan, something that is obviously not true. If Michigan can re-interpret its sore loser law and make it apply to presidential primaries at any time, than any other state can.

The amicus filed by the professors and former Congressman Anderson cost $850 to be printed. The Coalition for Free and Open Elections (COFOE) paid for the printing. COFOE obtains its funding from readers of this newsletter. COFOE thanks all those who have donated.

U.S. SUPREME COURT UNLIKELY TO HEAR VIRGINIA CASE

On November 26, the Supreme Court met to decide which cases to accept. Later that day, the court released the names of four cases that it had accepted. None of them are election law cases. The Court won’t release the list of cases it rejected until December 2.

Virginia had asked the U.S. Supreme Court to hear Judd v Libertarian Party of Virginia, 13-231, and that case was on the conference of November 26. Because that case wasn’t accepted, it is very likely to be on the list of cases that were rejected. The only other possibility is that the Court neither accepted nor rejected the case on November 26, and wants time to think about it some more, and will be putting the case on a future conference. But that is very unlikely.

Twice before, states have lost cases on this subject, and then asked the U.S. Supreme Court to reverse the lower courts. But both times in the past, the Court refused. Those appeals were brought by Illinois in 2001 and Arizona in 2009.

2016 REPUBLICAN NATIONAL CONVENTION

Republican Party Chair Reince Priebus wants a July 14-17 presidential convention for his party in 2016. That would be the earliest major party convention since 1992, when Democrats met July 13-16. In 2012, both conventions were in September.

Priebus also wants Illinois, Indiana, Michigan, Ohio, and Wisconsin to hold their presidential primaries on the same day, a day that would quickly follow the primaries for the four states that have special permission to hold early primaries and caucuses (Iowa, New Hampshire, Nevada, and South Carolina). Priebus probably is worried that southern states will dominate the early primaries if nothing is done. For instance, early this year, North Carolina moved its presidential primary to follow the four earliest states.

NEW MEXICO CONSTITUTION PARTY BALLOT ACCESS CASE

On November 25, the New Mexico Constitution Party filed a lawsuit in State Supreme Court, asking to be put back on the 2014 ballot. The Secretary of State had removed that party, and the Green Party, on July 18. If the Constitution Party wins the case, it is very likely the Green Party will benefit as well. The Constitution Party of New Mexico v Duran, 34431.

The law on when a party loses its qualified status is ambiguous, but it has been interpreted for the last 15 years to mean that after a party submits a petition, it gets the next two elections. But the current Secretary of State set aside those precedents and removed both parties, even though they had both petitioned in 2012.

The lawsuit, so far at least, does not focus on the point that precedent has been disregarded. Instead, it points out that the law requires the Secretary of State to notify a party’s officers no later than March 15 of the odd year following an election at which the party has been removed. The Secretary of State’s notice to the officers was more than four months late. Also, the law requires the Secretary of State to send a letter to the registered members of such parties, informing them that their party is no longer on the ballot. The law requires this letter to be sent by April 29, but such letters were not sent to Greens and Constitution Party members until November 1.

TEA PARTY DENIED EXEMPTION FROM DISCLOSURE

On November 21, the Federal Election Commission voted 3-2 not to grant an exemption to the Tea Party Leadership Fund. The Fund had presented 1,400 pages of evidence, showing that individuals identified with the Tea Party have been subject to harassment. The Tea Party Leadership Group will now file a lawsuit.

BOOK REVIEW: THE RIGHTEOUS MIND

The Righteous Mind: Why Good People are Divided by Politics and Religion, by Jonathan Haidt, 2012.

Jonathan Haidt is a professor of psychology at New York University-Stern. School of Business. This is his second book; the first was The Happiness Hypothesis. The Righteous Mind uses experimental psychology research to study how people come to hold religious and political views. The book draws on Psychology, Anthropology, and Sociology to explain the relationship between our opinions and the reasoning process (hint: it is not good news for people who care about logic and rationality!).

The book makes a strong case that the evolutionary process has shaped the process by which people determine what is moral, and explains why different human civilizations have different ideas about morality.

One of the basic problems for human beings is how to get along with each other and how to motivate as many people as possible to be useful members of society. The book presents research to show the overriding importance of human loyalty to their own groups, and makes a convincing case that groups of all types are essential to civilization.

The book has material that will please liberals, conservatives, libertarians, religious people, non-religious people, and even people who oppose large-scale migration. It is well-written and even though there are charts and diagrams, it is easy to understand. Anyone who reads this book will come away with a better understanding of individuals who differ from themselves. It would be highly useful if all world political leaders were to read this book.

WEBSITE HOSTING

If you are a candidate and need a company to develop or host your web page, BAN recommends Liberty Works, which hosts the BAN web page. Contact Kevin Hayes at kevhays01@gmail.com.

WHEN DID A MINOR PARTY LAST POLL 5% FOR GOVERNOR?

State	Candidate	Year	Percent	Party
Alabama	John Logan Cashin	1970	14.7%	National Democratic
Alaska	Walter J. Hickel	1990	38.9%	Alaskan Independence
Arizona	Sam Steiger	1982	5.1%	Libertarian
Arkansas	Walter Carruth	1970	5.9%	American
California	Peter Camejo	2002	5.3%	Green
Colorado	Tom Tancredo	2010	36.4%	Constitution
Connecticut	Lowell Weicker	1990	40.4%	A Connecticut Party
Delaware	Isaac Dolphus Short	1936	6.6%	Independent Republican Party
Florida	Sidney J. Catts	1916	47.7%	Prohibition
Georgia	James K. Hines	1902	5.5%	Peoples
Hawaii	Frank F. Fasi	1994	30.7%	Best
Idaho	W. Scott Hall	1926	28.4%	Progressive
Illinois	Richard Whitney	2006	10.4%	Green
Indiana	Albert J. Beveridge	1912	26.0%	Progressive
Iowa	John L. Stevens	1912	15.6%	Progressive
Kansas	Henry J. Allen	1914	15.9%	Progressive
Kentucky	Gatewood Galbraith	1999	15.4%	Reform
Louisiana	John M. Parker	1916	37.2%	Progressive
Maine	Patricia LaMarche	2006	9.6%	Green
Maryland	Thomas Holiday Hicks	1857	54.9%	American
Massachusetts	Frank A. Goodwin	1934	6.4%	Equal Tax
Michigan	Henry R. Pattengill	1914	8.3%	Progressive
Minnesota	Tom Horner	2010	11.9%	Independence
Mississippi	J. T. Lester	1915	7.4%	Socialist
Missouri	Albert D. Nortoni	1912	15.6%	Progressive
Montana	Frank J. Edwards	1924	6.1%	Farmer-Labor
Nebraska	Dan Butler	1924	7.9%	Progressive
Nevada	James Ray Houston	1974	15.5%	Independent American
New Hampshire	Meldrim Thomson	1970	9.9%	American
New Jersey	Everett Colby	1913	11.0%	Progressive
New Mexico	David E. Bacon	2002	5.5%	Green
New York	Carl Paladino	2010	5.0%	Conservative
North Carolina	Iredell Meares	1912	20.4%	Progressive
North Dakota	Alvin C. Strutz	1944	18.8%	Independent Republican Party
Ohio	James R. Garfield	1914	5.4%	Progressive
Oklahoma	Fred W. Holt	1914	20.8%	Socialist
Oregon	W. J. Smith	1914	5.8%	Socialist
Pennsylvania	Peg Luksik	1998	10.4%	Constitution
Rhode Island	Ken Block	2010	6.5%	Moderate
South Carolina	Sampson Pope	1894	30.4%	Peoples
South Dakota	Tom Ayres	1926	6.5%	Farmer-Labor
Tennessee	A. L. Mims	1894	9.9%	Peoples
Texas	Ramsey Muniz	1974	5.6%	La Raza Unida
Utah	Merrill Cook	1992	33.5%	Independent Party
Vermont	Anthony Pollina	2008	21.9%	Progressive
Virginia	Rob Sarvis	2013	6.5%	Libertarian
Washington	Vick Gould	1972	5.9%	Taxpayers
West Virginia	Walter B. Hilton	1912	5.6%	Socialist
Wisconsin	Ed Thompson	2002	10.5%	Libertarian
Wyoming	Lewis C. Tidball	1894	11.3%	Peoples

See the article below for more information about this chart: LIBERTARIAN VIRGINIA RESULTS

On November 5, Libertarian Rob Sarvis polled 6.5% for Governor of Virginia. This was the first time any minor party candidate for Governor in a southern state (excluding Kentucky) had polled as much as 5% since 1970, when the National Democratic Party polled 14.7% for Governor of Alabama. In that Alabama race, the Democratic nominee had been George Wallace, and Republicans ran no one.

The chart on page five shows the last time a minor party gubernatorial candidate polled as much as 5% in each state.

A gubernatorial result that high would have put a minor party on the ballot in 40 states. Unfortunately for the Libertarian Party, Virginia requires a 10% vote for any statewide race (at either of the last two elections) for party status. The Virginia 10% is tied for second-highest vote test in the nation; only Alabama, at 20%, is higher. Also at 10% are New Jersey and Oklahoma.

SOCIALIST ALTERNATIVE ELECTS SEATTLE CITY COUNCIL MEMBER

On November 5, Seattle voters chose a new city council in non-partisan elections. All seats were at-large, in numbered seats. Kshama Sawant, the Socialist Alternative Party candidate, defeated incumbent city councilman Richard Conlin, for seat two, by 93,654 to 90,517.

This is the first time any party with "socialist" or "socialism" in its name has won an election in a jurisdiction with a population greater than 100,000 since 1956, when the Socialist Party’s Frank P. Zeidler was re-elected Mayor of Milwaukee in a non-partisan election.

Socialist Alternative also came close to electing Ty Moore to the Minneapolis city council, 9^th ward. Minneapolis uses ranked-choice voting. In the first round, Moore received 1,569 votes, second only to Alondra Cano, who received 1,698. In subsequent rounds, Moore gained 189 votes, but Cano gained 289, giving her a majority.

Sawant’s campaign issues were raising the minimum wage, establishing rent control, and higher taxes on the wealthy.

At local elections on November 5, Green Party members won 22 elections. gp.org/elections/candidates/index.php has the list. However, that list also includes 2013 elections from earlier months.

Libertarians won 15 elections. To see the list, go to lp.org and use the search feature for "2013 election results."

The Modern Whig Party elected a partisan office in Pennsylvania: Judge of Elections in one Philadelphia precinct.

New Jersey elected a Governor on November 5. The unofficial results: Republican Chris Christie 1,242,116; Democrat Barbara Buono 780,779; Libertarian Ken Kaplan 11,821; Green Steven Welzer 8,045; LaRouche organization Diane Sare 3,263 (her ballot label was "Glass-Steagall Now"); Peace & Freedom William Araujo 3,187; independent Hank Schroeder 2,706; independent Jeff Boss 2,016 (his ballot label was "NSA Did 911").

The next B.A.N. will carry the minor party results for legislature of New Jersey and Virginia.

The Green Party and the Libertarian Party are now both on the Arkansas ballot for 2014. The Hawaii Libertarian Party believes it is finished with its 2014 petition. The Arizona Green Party is one-sixth finished with its petition.

On November 18, U.S. Senator Bernie Sanders, independent of Vermont, said he might run for President as an independent in 2016 if no one else with his viewpoints runs. He was elected as an independent to the U.S. House in 1990 and was re-elected through 2004. In 2006 he was elected to the U.S. Senate as an independent, and he was re-elected as an independent in 2012.

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