DEADLINE VICTORIES IN HAWAII AND NEW MEXICO

New Mexico: on December 9, the Constitution Party won its lawsuit against the April petition deadline for newly-qualifying parties. The case is Constitution Party of New Mexico v Duran,1:12-cv-325. The state is not expected to appeal. The case had been filed in 2012.

Newly-qualifying parties nominate by convention in New Mexico, so there is no state interest in having a deadline as early as April. The 1995 legislature had moved the deadline from July to April, not because of any election-administration related reason, but because the Democratic majority was angry that the Green Party had polled over 10% for Governor in New Mexico, in an election in which the Republican nominee, Gary Johnson, won with less than 50% of the vote.

The original ballot access law in New Mexico, which was not passed until 1917, said new parties should certify their nominees "anytime before the election." In 1935 that was amended to 40 days before the election, i.e., late September. Back then no petition was required. In 1975 the deadline was moved to 63 days before the election, i.e., early September or late August. In 1981 the deadline was moved to July.

This lawsuit was unique because the Constitution Party had complied with the April deadline in 2012. However, it presented evidence showing that if the deadline had been later, the party would not have needed to hire paid circulators, and would have saved a considerable amount of money.

Hawaii: on December 23, the Attorney General ruled that the independent presidential petition procedure, which has a deadline only 60 days before the general election, can also be used to place the presidential nominee of an unqualified party on the ballot.

Furthermore, when an unqualified party uses the independent presidential petition, its name will appear on the ballot, next to the name of its presidential nominee.

This Opinion was issued because on July 18, 2012, the Justice Party had filed a lawsuit against the February petition deadline for newly-qualifying parties. That lawsuit, Justice Party v Nago, 1:12cv-403, has been pending ever since it was filed, and no decision had been issued. The two sides agreed that if the Attorney General Opinion were issued, that would resolve the dispute. In effect, Hawaii now has a procedure for putting a new party on the ballot with a late deadline, although it only works for the presidential election, not other office.

The Attorney General Opinion, 13-2, does not mention the Justice Party lawsuit. However, the Attorney General put out a press release on December 23 and it explains that the Opinion was issued in response to the Justice Party’s lawsuit.

This is the third ballot access lawsuit the Justice Party has won. The other two were won against the California deadline for newly-qualifying parties, and the Vermont procedures for submitting petitions.

Consequences of These Two Decisions for Alabama

As a result of these decisions, plus others won in earlier years, Alabama now has the nation’s earliest petition deadline for a new or previously unqualified party to put its presidential nominee on the ballot with the partylabel. The Alabama deadline for that, in presidential years, is in March. In 2016 it will be March 8.

To see the 2016 deadlines for a new party to qualify for the ballot, for president, with the party label, see the chart below.

It is true that Mississippi has an even earlier deadline for a new party to qualify for the ballot in a presidential election, but Mississippi does not require any petition for a new party to get on the ballot. Mississippi only requires that the party file a set of party officers.

The constitutionality of the Alabama March petition deadline, for new parties that wish to appear on the ballot with their party label, is pending in the Eleventh Circuit. The U.S. District Court had upheld the deadline, on the grounds that because minor parties can get on the ballot for president using the independent presidential petition procedure, with a September deadline, the burden on them is "slight".

However, Alabama does not permit party labels on the ballot for candidates who use the independent petition. The U.S. District Court decision in Alabama is in conflict with a decision of the U.S. Supreme Court, Storer v Brown, which says that the independent candidate approach to politics is entirely different than the minor party approach to politics, and states must have constitutional procedures for both.

State	2016 Deadline	Election Code Citation	Formula for Setting Date
Ariz	September 9	16.341.G	60 days before general election
Hi	September 9	11-113(c)(2)	60 days before general election
NoD	September 9	16.1-12-04	60 days before general election
R I	September 9	17-14-11	60 days before general election
Ky	September 6	118.365(6)	First Tuesday in September
La	September 6	1255	First Tuesday in September
Fla	September 1	103.021(4)	Date named in law
Ore	August 30	249.722(1)	70 days before general election
Idaho	August 30	34-708	Date named in law
Va	August 26	24.2-543	74 days before general election
Del	August 23	Title 15, sec. 3002	21 days before primary election
N Y	August 23	Election code 6-158.9	11 weeks before general election
Mn	August 23	204B.09	77 days before general election
Iowa	August 19	44.4	81 days before general election
Utah	August 15	20A-9-503(3)(b)(i)	Date named in law
Alas	August 10	15.30.025	90 days before general election
Colo	August 10	1-4-303(1)	90 days before general election
N H	August 10	655:43	34 days before primary election
Tn	August 10	2-13-107(a)(2)	90 days before general election
DC	August 10	1-1001.08	90 days before general election
Me	August 9	Title 21A, sec. 354.8	Date named in law
Ct	August 3	9-405 & 9-453i	6 days before primary election
Mt	August 3	13-10-504	97 days before general election
Wis	August 2	8.20(8)(a)	First Tuesday in August
Ma	August 2	Ch. 53, sec. 7 & 10	14 weeks before general election
Ark	August 1	7-8-302(5)	Date named in law
Md	August 1	Art. 33, sec. 703(f)	First Monday in August
Neb	August 1	32-716	Date named in law
N J	August 1	19:13-9	99 days before general election
Pa	August 1	Libt Pty v Davis consent decree	Date named in consent decree
W V	August 1	3-5-24	Date named in law
Mo	July 25	115.329	Last Monday in July
Wa	July 23	29A.20.121(2)	Fourth Saturday in July
Mi	July 21	168.685	110 days before general election
Ok	July 15	10-101.1	Date named in law
Ga	July 12	21-2-132	Second Tuesday in July
Ca	July 11	Elec. Code 5151(c)	19 days + 102 days bef. gen. election
Oh	July 6	3517.01	125 days before general election
Ind	July 1	3-8-6-10	Date named in law
Ill	June 27	10 ILCS 5/10-6	134 days before general election
Vt	June 16	Title 17, sec. 2386 & 2356	2nd Thursday after first Monday in June
Ks	June 1	25-302a and 25-205	Date named in law
Wy	June 1	22-4-402(e)	Date named in law
NoC	May 17	163-96	15 days before June 1
Tx	May 16	181.005(e), 181.061(c)	75 days after primary
SoC	May 8	7-13-351	6 months before general election
Nev	April 11	298.109	25 work days before 3rd Fri in May
SoD	March 29	12-5-1	Last Tuesday in March
Alabama	March 8	17-6-22(a)	Date of primary election
Miss	Jan 8	23-15-1059 & Sec. of State rule	1 week bef. primary candidate deadline

All procedures above permit the party label on the ballot next to a presidential candidate’s name. See above this chart for more about why Alabama is highlighted.

On November 27, some Montana unions filed a lawsuit with the State Supreme Court, asking the Court to remove the 2014 ballot measure which asks voters if they want a top-two election system. The legislature had put it on the ballot in 2013.

The lawsuit is Montana Education Association v State, OP 13-789. On December 10, the Court asked both sides to file briefs. The basis for the lawsuit is that the measure violates the single subject rule, and its title has too many words.

During December, the U.S. Supreme Court refused to hear any election law cases presented to it, even though two of them had been chosen by Scotusblog (the premier news webpage for U.S. Supreme Court news) as cases fairly likely to be accepted.

On December 2, the Court refused to hear Virginia’s appeal in Judd v Libertarian Party of Virginia, 13-231. The issue was a state law making it illegal for out-of-state petitioners to work in Virginia. This was the third time the Court had refused one of these cases when a state had asked for review. The other appeals had been filed by Illinois in 2001, and Arizona in 2008. Scotusblog had felt that Virginia might succeed.

The other case the Court refused to hear, even though Scotusblog had singled it out, is Libertarian Party of Michigan v Ruth Johnson, 13-442, denied on December 16. The issue was whether Michigan’s "sore loser" law applies to presidential primaries. When Michigan refused to put Gary Johnson, Libertarian presidential nominee, on its 2012 ballot, that was the first time in U.S. history that a state had ever used a "sore lower" law to keep a minor party presidential candidate off the general election ballot.

Another case the Court refused to hear (on December 2) is Nader v FEC, 13-556. The Federal Election Commission did not require Democrats to report their spending on efforts to keep Nader off the ballot in 2004. Nader sued the FEC, but the U.S. Court of Appeals ruled he didn’t have standing.

Still another case the Court refused to hear is Minnesota Majority v Mansky, 13-185. The issue was a law that says, "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." The Eighth Circuit had upheld the law. The case had been filed by people who wanted to wear buttons that said "Tea Party Patriots" or "Please I.D. Me."

In January, the U.S. Supreme Court will consider whether to hear several election law cases. Susan B. Anthony List v Driehaus, 13-193, challenges Ohio’s law that makes it illegal for anyone to make a false statement about a candidate or a ballot measure. The lower courts had ducked the issue on procedural grounds, but the U.S. Supreme Court has asked for a response, suggesting the Court is interested in this case.

Another pending case is Republican Party of Nevada v Miller, 13-442, on whether some Republican candidates for presidential elector, and some voters, have standing to challenge Nevada’s law that puts "None of these candidates" on the ballot for statewide office.

The plaintiffs argue the law is unconstitutional because it does not treat all voters equally. Specifically, they say it discriminates against voters who vote for "None of these candidates" because even if they win, nothing happens. The Ninth Circuit had said none of the plaintiffs have standing.

The Libertarian, Green, Constitution, Independent American, and America’s Party have filed an amicus brief on the side of the Republican Party. The amicus does not take a position on the merits of the case, but argues that the plaintiffs do have standing.

Both of these cases are on the Court’s January 10 conference.

Emory University School of Law has published a Legal Studies Research Paper, 13-265, titled, "Sore Loser Laws and Congressional Polarization", by Political Scientists Barry C. Burden and Bradley Jones, and Law Professor Michael S. Kang. They present research to show that "sore loser" laws make polarization and partisanship more likely, among a state’s congressional delegation.

On December 6, the Kentucky Registry of Election Finance issued an opinion, saying that for campaign finance purposes, all political parties should be treated alike, whether they are ballot-qualified or not.

The Libertarian Party, which has never been a ballot-qualified party in Kentucky, had a nominee on the 2011 ballot for State Treasurer. The party wanted to give him a large donation for his campaign, but had been warned that since it wasn’t a "party", it could only give $1,000. Kentucky defines "party" as a group that got 20% of the vote for President in the last election, although it also considers groups ballot-qualified if they got 2% for President at the last election; it’s just that they aren’t defined as "parties."

As noted in the December 1, 2013 BAN, in November the Constitution Party asked the New Mexico Supreme Court to hear its case on whether parties should be removed from the ballot after just one election, or two elections. The Court refused to hear the case on December 16, the very day the state had filed its brief. On December 27 the Constitution Party asked for reconsideration.

The state’s brief erroneously says that always before, a party that fails to meet the vote test has been removed after just one election, not two. The request for reconsideration submits evidence (from 2006 and 2010) demonstrating that the state is mistaken.

The state’s brief also failed to quote the entire election code section, and omitted the beginning of the sentence in 1-7-2(c), which says "If two successive general elections are held…". The request for reconsideration points this out.

In November 2013, the Penguin Press released Double Down, a 499-page history of the 2012 presidential election. The authors, Mark Halperin and John Heilemann, got a $5,000,000 advance for the book, because their previous book on the 2008 presidential election, Game Change, had sold so well.

Double Down reveals that former Utah Governor Jon Huntsman, who later served as President Obama’s ambassador to China, and who announced for the Republican presidential nomination on June 14, 2011, decided on the evening of September 12, 2011, to drop out of the Republican race and seek the Americans Elect nomination.

The motivation for his decision was that he had just participated in the 8-candidate CNN-Tea Party Express Republican presidential debate in Tampa. He and his family felt out of place. Huntsman said to his campaign strategist, "These aren’t my people."

But, he didn’t publicly commit to the switch. He decided to announce the news at a speech to the National Press Club, to be given on December 8, 2011. He had met with New York Mayor Michael Bloomberg on November 19, and Bloomberg had told him, "You’re the embodiment of the perfect independent candidate." But Huntsman’s campaign staff, and his father, persuaded him to remain in the Republican race. At the time he was polling second in the January 10, 2012 New Hampshire primary, behind Mitt Romney. In the primary itself, he came in third, behind Romney and Ron Paul, and withdrew completely from the race on January 16. Americans Elect did not nominate anyone for President.

Double Down does not mention any other minor party or independent presidential candidate. Game Change, the book about 2008, also did not mention any minor party or independent presidential candidate.

California switched to the top-two system starting in 2011. The 2012 top-two primary in California had the lowest turnout of any primary in California history that was held in conjunction with a presidential primary. California has held presidential primaries continuously starting in 1912.

Turnout in top-two special elections has also been extraordinarily low. California has held 19 special elections since the top-two system went into effect. This includes the initial election, and if a run-off was needed because no one got 50%, it also includes the run-offs.

Ever since the top-two system went into effect, the median voter turnout (the number of voters who cast a ballot, divided by the number of registered voters) has been only 13.84%, and the average turnout has only been 15.80%.

By contrast, during special elections for Congress and legislature held during 2009 and 2010, before top-two took effect, the median turnout was 20.27% and the average turnout was 21.93%. Thus, since the switch was made, turnout in special elections has declined by approximately one-third. This calculation does not include special elections held in conjunction with regularly-scheduled elections.

One reason, perhaps, for the lower turnout in special elections under top-two is that minor party candidates have ceased filing for special elections. During 2009 and 2010, before top-two took effect, there were special elections in only five districts, but there were six minor party candidates in those races. Some of them did well, including an American Independent candidate who polled 10.2%, and a Peace & Freedom candidate who polled 8.45% (in both elections, each major party also had candidates).

But in 2013, when there were special elections in nine districts, only one minor party member filed to run.

California: on November 26, the plaintiffs in the minor party lawsuit against the top-two system filed a notice of appeal. Rubin v Bowen.

California(2): on February 13, the Ninth Circuit will hear Peace & Freedom Party v Bowen, over whether the Secretary of State had the authority to delete one of the party’s presidential candidates from its 2012 presidential primary ballot.

Ohio: the lawsuit on whether the state’s four qualified minor parties can remain on the ballot for 2014, or whether they must comply with the new ballot access petition requirement, has a hearing in U.S. District Court in Columbus on January 6.

Pennsylvania: the Third Circuit will hear the minor party case sometime in mid-February. This is the case that challenges the unique system in which petitioning groups whose petition is found not to have enough valid signatures are subject to court costs of up to $110,000. The lower court had ruled that the plaintiffs don’t have standing.

A group of influential experts on political campaigns has formed the Annenberg Working Group on Presidential General Election Debates. They include former major party debate negotiators, former debate advisors to past major party presidential nominees, and former campaign managers to major party presidential nominees. The group is headed by Kathleen Hall Jamieson, a Professor of Communications and an expert on political campaigns.

The group is dissatisfied with almost every characteristic of the general election presidential debates held over the last decades, including the exclusion of all minor party and independent presidential candidates in all debates of the past twenty years. The group expects to meet with representatives of minor parties, and independent candidate supporters.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	Wk Fam	Party	Indp.
Ala.	44,829	44,829	0	0	0	0	June 3	June 3
Alaska	(reg) 8,925	#2,975	already on	*1,850	*156	0	June 1	Aug. 26
Ariz.	23,041	(est) #31,000	already on	*9,000	0	0	Feb. 28	May 28
Ark.	10,000	10,000	*already on	*already on	0	0	April 12	May 1
Calif.	(reg) 103,004	65 + fee	already on	already on	304	0	Jan. 2	March 7
Colo.	(reg) 1,000	#1,000	already on	already on	already on	0	Jan. 8	July 10
Conn.	no procedure	#7,500	*0	already on	0	already on	– – –	Aug. 13
Del.	(est.) (reg) 650	(est.) 6,500	already on	already on	*388	557	Aug. 19	July 15
D.C.	no procedure	(est.) #3,900	already on	already on	can’t start	can’t start	– – –	Aug. 6
Florida	0	pay fee	already on	already on	already on	0	Sep. 1	July 15
Georgia	50,334	#50,334	already on	*0	*0	0	July 8	July 8
Hawaii	706	25	*already on	already on	0	0	Feb. 20	June 10
Idaho	13,102	1,000	already on	0	already on	0	Aug. 30	March 14
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	– – –	June 23
Indiana	no procedure	#34,195	already on	0	0	0	– – –	June 30
Iowa	no procedure	#1,500	0	0	0	0	– – –	Aug. 15
Kansas	16,776	5,000	already on	0	0	0	June 2	Aug. 4
Ky.	no procedure	#5,000	*0	*0	*0	0	– – –	Aug. 12
La.	(reg) 1,000	#pay fee	already on	already on	*112	0	May 15	Aug. 15
Maine	28,639	#4,000	0	already on	0	0	Dec 12, 11	June 2
Md.	10,000	(est.) 40,000	already on	already on	0	0	Aug. 4	Aug. 4
Mass.	(est) (reg) 43,000	#10,000	13,336	6,507	102	0	Nov. 5, 11	July 29
Mich.	32,261	30,000	already on	already on	already on	0	July 16	July 16
Minn.	146,297	#2,000	0	0	0	0	May 1	June 17
Miss.	be organized	1,000	already on	already on	already on	0	April 4	April 4
Mo.	10,000	10,000	already on	0	already on	0	July 28	July 28
Mont.	5,000	#11,823	already on	*150	0	0	March 13	May 27
Nebr.	4,880	4,000	already on	0	0	0	Aug. 1	Aug. 25
Nev.	9,738	9,738	already on	*4,000	already on	0	April 11	Feb. 7
N. Hamp.	20,779	#3,000	0	0	0	0	Aug. 6	Aug. 6
N.J.	no procedure	#800	0	0	0	0	– – –	June 3
N. M.	3,009	18,053	already on	*in court	*in court	0	in court	June 24
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	already on	– – –	Aug. 19
No. Car.	89,366	89,366	already on	0	0	0	in court	June 12
No. Dak.	7,000	1,000	*already on	0	0	0	Apr. 11	Sep. 5
Ohio	show support	5,000	*in court	*in court	*in court	0	*July 2	May 5
Okla.	66,744	pay fee	0	0	0	0	March 3	April 11
Oregon	17,700	18,279	already on	already on	already on	already on	Aug. 26	Aug. 26
Penn.	no procedure	*16,625	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 1
R.I.	17,115	#1,000	0	0	0	0	June 2	July 17
So. Car.	10,000	10,000	already on	already on	already on	already on	May 4	July 15
So. Dak.	7,928	3,171	already on	0	already on	0	Mar. 25	*April 29
Tenn.	40,042	25	*in court	*in court	*in court	0	Aug. 6	April 3
Texas	49,729	49,729	already on	already on	can’t start	can’t start	May 20	April 27
Utah	2,000	#1,000	already on	0	already on	0	March 1	March 17
Vermont	be organized	#500	already on	0	0	already on	Jan. 1	June 12
Virginia	no procedure	#10,000	0	0	0	0	– – –	June 10
Wash.	no procedure	#pay fee	can’t start	can’t start	can’t start	can’t start	– – –	May 17
West Va.	no procedure	#6,516	already on	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	*0	*0	already on	0	May 1	June 3
Wyo.	4,833	4,833	already on	0	already on	0	June 1	Aug. 25
TOTAL STATES ON			32*	18	13*	5*	“	`

#partisan label permitted (other than "independent").
"WK FAM" = Working Families Party.
*means entry changed since the last time this chart appeared (in the October 1, 2013 issue).

On December 26, former U.S. Senator Larry Pressler announced he will run for his old U.S. Senate seat in South Dakota as an independent. He was elected as a Republican to the same seat in 1978, 1984, and 1990. No one running outside the major parties for U.S. Senate in South Dakota has polled as much as 10% since 1924.

On December 9, Bill Bozarth, a well-known Atlanta civic activist, announced he will run for the Georgia House as an independent candidate. He was Executive Director of Common Cause 2002-2010, and is a member of the Atlanta Citizens Review Board.

On December 21, Dan Schnur let it be known that he will run for California Secretary of State as an independent candidate. He will be the first independent candidate for that office in the history of government-printed ballots.

He will be somewhat disadvantaged, because in 2009 the legislature deleted the ability of an independent candidate to have the ballot label "independent" (except that independent presidential candidates may still have that label). Instead he must have "no party preference" on the ballot.

Schnur has spent much of his career working for Republican office-holders and candidates. For five years he was a spokesperson for Republican Governor Pete Wilson. He was also the Communications Director for U.S. Senator John McCain, when McCain ran for president in 2000. Schnur also was a campaign manager for a Republican gubernatorial candidate in 2002, and has been head of the Fair Political Practices Committee. Currently he is the head of the Jesse Unruh Institute at the University of Southern California.

On December 13, Bruce Hyer, who had been elected as an independent candidate to the Canadian Parliament, announced that he has joined the Green Party. Because the Green Party had elected one member of Parliament in the last election, it now has two members in that body.

PARTY	N.J. Vote	Va. Vote	N.J. %	Va. %
Green	796	– –	1.38%	– –
Indp. Gr.	– –	12,682	– –	23.88%
Lib’t.	2,100	15,252	1.80%	10.46%

New Jersey and Virginia are the only states that held regularly-scheduled legislative elections in November 2013. The only minor parties that had candidates on the ballot for legislature in either of those states are mentioned above. "Indp. Gr." stands for "Independent Green Party", which is not affiliated with the Green Party. The percentages above are each party’s share of the vote in the districts in which it had candidates.

New Jersey also had State Senate elections. The only minor party candidate in a New Jersey State Senate election was a Libertarian who polled 1,014 votes, 1.63%.

The Independent Green Party of Virginia has been running candidates for legislature since 2005. The 2013 election was the party’s best showing ever in legislative races.

The December 1, 2013 BAN has a rundown of minor party members who were elected to public office on November 5, 2013, but that list failed to list Constituton Party member Steven W. Johnson, who was elected to the Enoch, Utah, city council, in a non-partisan election.

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