ELEVENTH CIRCUIT DECISION WILL HELP BALLOT ACCESS IN GEORGIA AND ALABAMA

On January 6, the Eleventh Circuit issued a short opinion in Green Party of Georgia v Kemp, 13-11816. It remands the case back to U.S. District Court, and says that the U.S. District Court improperly dismissed the case, and should hear it again.

The issue is whether Georgia’s ballot access laws for minor party and independent presidential candidates are too severe. The law requires approximately 50,000 valid signatures, and requires each petition sheet to be notarized. No one has successfully completed a presidential petition in Georgia since 2000. The only other state for which that fact is true is Indiana.

The Eleventh Circuit says that presidential ballot access is entitled to heightened constitutional protection, and implies that the Georgia law cannot be upheld unless the state shows that it is needed for a very good reason.

The decision depends on two precedents, the U.S. Supreme Court decision Anderson v Celebrezze, issued in 1983, and also an Eleventh Circuit precedent, Bergland v Harris, a Georgia case issued in 1985.

The Bergland case was brought by Libertarian Party presidential nominee David Bergland in 1984. At the time, Georgia required 61,670 signatures. The U.S. District Court in 1984 upheld the law, which required 2.5% of the number of registered voters to sign. The Eleventh Circuit sent the case back to the U.S. District Court, saying the law might be unconstitutional and that the lower court should weigh whether the state really needs that many signatures.

Rather than go through more court proceedings, the Georgia legislature lowered all the statewide petitions to 1% of the registered voters, which at the time was 24,668 signatures.

Because Georgia has grown so fast since 1984, the 1% formula is now 50,334 signatures.

Georgia has not asked for reconsideration, and it is possible that the 2014 legislature might avoid any further uncertainty and lower the number of signatures.

The three judges who signed the recent opinion are Gerald Tjoflat, Emmett Cox, and Adelberto Jordan. Judge Tjoflat is a Ford appointee who has participated in many ballot access cases in the past. This is the first time he has ever ruled favorably in a ballot access case.

Effect on Alabama

The recent Georgia opinion will help the three minor parties who are in court against Alabama’s March petition deadline for newly-qualifying parties in presidential election years. Alabama, like Georgia, is in the Eleventh Circuit. Therefore, the Georgia decision applies to Alabama as well. Like the Georgia case, the Alabama case is about presidential ballot access, for parties.

The pending Alabama case, Stein v Bennett, lost in U.S. District Court last year, and the three parties (Constitution, Green and Libertarian) are appealing to the Eleventh Circuit.

On January 7, U.S. District Court Judge Michael Watson put Ohio’s minor parties on the ballot. He wrote, "The Court preliminarily enjoins Defendants from retroactively applying SB 193 to Ohio’s 2014 primary and general elections and orders Defendants to provide Plaintiffs and their candidates access to the 2014 primary and general elections in accordance with the requirements set forth in the Secretary’s Directive 2013-02."

On January 10, the state asked the Sixth Circuit to reverse this decision, and asked for expedited handling. But on January 15, the Sixth Circuit denied the state’s motion to expedite the case. This virtually guarantees that the Sixth Circuit won’t reverse the U.S. District Court, because if it intended to do that, it would need to do it before the primary process is underway.

These decisions mean that the Constitution, Green, Libertarian and Socialist Parties are ballot-qualified for 2014, and will nominate candidates by primary. The primary is May 6, and candidates who want to run in those primaries must submit petitions by February 5. Statewide candidates need 500 signatures; others need 25.

If a party polls 2% for Governor in November 2014, it will have four more years of qualified status. Otherwise, it will need a petition in 2016 signed by 1% of the vote cast in November 2014, which will be approximately 42,000 signatures.

On January 23, the Tenth Circuit struck down a Colorado law that says someone may give $400 to a legislative candidate nominated by primary, but only $200 to a write-in candidate, an independent candidate, or a candidate nominated in a minor party convention. The decision is Riddle v Hickenlooper, 13-1108. The vote was 3-0. The decision is by Judge Robert Bacharach, an Obama appointee, and co-signed by Judges Neil Gorsuch, a Bush Jr. appointee, and Bobby Baldock, a Reagan appointee. Gorsuch, who wrote a concurrence, said, "The only reason I can imagine for Colorado’s scheme is a bald desire to help major party candidates at the expense of minor party candidates."

On January 9, a U.S. District Court Magistrate denied Michigan’s attempt to dismiss the lawsuit Erard v Ruth Johnson, e.d., 2:12cv-13627. The case had been filed in 2012 by a Socialist Party candidate for Congress, Matt Erard.

The case argues that Michigan’s ballot access laws for newly-qualifying parties are too severe. Currently the law requires 32,261 signatures, to be collected in six months. The petition blanks all say in large print, inside a box, "Petition to Form New Political Party. WARNING: a person who knowingly signs petitions to organize more than one new state party, signs a petition to organize a new state political party more than once, or signs a name other than his or her own is violating the provisions of the Michigan election law."

The magistrate, in a 71-page ruling, said that whereas some of the arguments in the lawsuit do not have merit, two aspects of the law are probably unconstitutional: (1) only Michigan residents can circulate the petition; (2) the wording on the petition intimidates many otherwise willing signers from signing, and also falsely forces them to say they are organizing the party. Similar wording on petitions to recognize new parties has been held unconstitutional in seven other states (Kentucky, Nebraska, Nevada, New Mexico, North Carolina, South Dakota, and Tennessee).

The magistrate did not find that the Michigan law violates equal protection, even though Michigan requires approximately twice as many signatures for a party to get on, than it requires votes for an old party to remain on. She said all of the parties already on the ballot had to collect the same number of signatures. This is not true, because the Democratic and Republican Parties never had to submit any petition to get on the ballot. Before 1939, Michigan didn’t require a petition for any party to get on the ballot.

Erard will next try to persuade the judge who has jurisdiction of the case to overrule the magistrate, on the Equal Protection argument. In federal courts, which don’t have enough judges to handle all the lawsuits, magistrates do much of the work, but the final outcome will depend on the opinion of the judge.

On January 10, the U.S. Supreme Court said it will hear Susan B. Anthony List v Driehaus, 13-193. The issue is an Ohio law making it illegal to make a false statement about a candidate or a ballot measure. The lower courts have repeatedly refused to rule on whether this law is constitutional or not, not only in this case, but in other earlier cases. They always find a procedural reason to duck the issue. It is possible the U.S. Supreme Court will merely rule that the lower courts should have made a decision, and that the Supreme Court will send the case back. That, alone, would probably be a very useful precedent. Many worthy constitutional election law cases are defeated because the lower courts rule that the plaintiffs don’t have standing, or that the case isn’t ripe yet.

On January 13, the Court refused to hear 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 Ninth Circuit had ruled that none of the plaintiffs have standing. The plaintiffs had argued that because nothing happens if "None" wins, the voters who vote for "None" are being discriminated against, because their ballots don’t have as much power as the votes of voters who vote for candidates.

On January 13, Montana asked the Court to hear Fox v Sanders County Republican Committee, 13-839. The issue is the state’s ban on political parties supporting or opposing candidates in judicial elections. The Ninth Circuit had struck down the law 2-1.

Alabama officials are trying to persuade a U.S. District Court Judge not to rule on the constitutionality of ballot access procedures in special congressional elections. The case, Hall v Bennett, has been filed last year to help an independent candidate get on the ballot in the special election for U.S. House held in December 2013.

The state normally lets independent candidates take as long as they wish to collect the needed signatures. But in special elections, the state doesn’t make any allowance for the reduced time period to collect the signatures. The candidate had asked either for a reduction in the required 5,938 signatures, or more time to collect them. Alabama is in the Eleventh Circuit, and the Eleventh Circuit had ruled in a Georgia case in 1982 that such relief must be granted in special elections.

The U.S. District Court in Alabama refused to put the plaintiff, James Hall, on the ballot, partly because there wasn’t enough time. The candidate, James Hall, still hopes to win declaratory relief. Now the state is arguing that the case should be dismissed because it is moot. The U.S. Supreme Court has repeatedly said that these cases are not moot just because the election is over. The state acknowledges that, but says that doctrine only applies to regular elections, not special elections. This is a very weak argument, but it shows the lengths to which Alabama will go to try to block any ballot access case from winning.

On January 6, North Carolina Congressman Mel Watt resigned. On January 6, Governor Pat McCrory said that the vacancy will be filled on November 4, 2014. The Governor said it would be too expensive to hold a special election sooner than that. The NAACP may sue.

CQ Press, part of SAGE Publications, has just published America Votes 2012, by Rhodes Cook. A short-hand title is America Votes 30, which means that this is the 30^th volume in the series, which started in 1956. One volume is issued after each congressional election.

America Votes continues to be the best source of election returns for President, Congress, and gubernatorial races. This volume has 483 pages, and, as is usual for the series, has primary and general election returns. The general election returns are by county. For New England states, they are also by town. The book includes maps of all congressional districts, with special detailed maps for urban areas. The book also includes all special congressional elections held during 2011 and 2012. The book has vote totals for all elections held since 1946 for President, Governor and U.S. Senator in each state, although that summary only includes the vote for the two major party nominees and the occasional other candidate who comes close to winning.

Most medium-sized and large public libraries buy each volume of America Votes and treat them as reference books.

On January 16, bills were introduced in both houses of Congress to repair the part of the federal Voting Rights Act that was struck down by the U.S. Supreme Court last year. The Senate bill, S.1945, has three sponsors, all Democrats. The House bill, HR 3899, has nine co-sponsors: six Democrats and three Republicans. The lead sponsor in the House is James Sensenbrenner (R-Wisconsin).

The bill provides a new formula for determining which states should be required to get permission from the Justice Department before changing election laws. As of now, those states would be Georgia, Louisiana, Mississippi, and Texas.

Alabama: bills have been introduced in each house to ease ballot access for newly-qualifying parties and independent candidates. They would cut the number of signatures from 3% of the last gubernatorial vote, to 1.5%, and ease the deadline (for minor parties) from primary day to three weeks after the run-off primary. The bills are SB 70 and HB 327.

Arizona: Representative Eddie Farnsworth (R-Gilbert) has introduced HB 2196. It repeals a ballot access barrier passed by the 2013 legislature, a law that increased the number of signatures for members of qualified minor parties to get on their own party’s primary ballot.

New Hampshire: on January 21, the House Election Law Committee heard testimony on two bills to ease the definition of "party", which now is a group that polled 4% for either Governor or U.S. Senator. HB 1322 lowers it to 3%, and HB 1497 to 1%. The only person who testified against the bills was the Deputy Secretary of State, who said if either bill passed, it would cost more money to administer elections. When it was pointed out that the state is always free to provide that small qualified parties nominate by convention instead of primary, he responded that, nevertheless, just putting more candidates on the November ballot also costs more money. The Committee will probably decide whether to pass either bill in early February.

On January 9, the New Mexico Supreme Court again refused to hear Constitution Party of New Mexico v Duran. The issue is how to interpret the election law that explains when a party loses its qualified status. As a result, for now, the Constitution and Green Parties are off the ballot. The Court’s refusal to hear the case is not a decision on the merits. No lower court ever heard the case, but the case may be re-filed in a lower state court.

The chart below shows the number of signatures needed to get an independent candidate on the ballot for U.S. House in 2014. In three states, California, Hawaii, and Washington, the barriers to being on the November ballot are not a petition, but the requirement that the candidate poll a certain vote in the primary.

The chart shows the extreme difference between the various state ballot access barriers. All U.S. House districts have approximately the same population, so it senseless that some states require support from tens of thousands of voters, whereas other states get along with a few hundred.

Percentages in the chart are the number of signatures needed in the average district in that state, divided by the number of voters who voted for President in November 2012 in the average district.

The numbers and percentages for California and Washington show the number of votes needed to place second in the primary, in the average district. For Washington, the average was calculated for 2008-2012, the years the top-two system has been in effect. For California, the average was calculated only from 2012 primary election returns, because that is the only election in which California has used top-two. The average number of votes in Washington primaries is higher than in California primaries, because generally, more candidates ran for U.S. House in California than in Washington. Obviously, the fewer candidates, the more votes are needed to place second.

Hawaii does not have a top-two system, but Hawaii forces independent candidates for Congress to run in the open primary and poll a certain share of the votes in that primary. The number is the lesser of 10% of the vote cast for that office in the primary, or else the independent candidate also qualifies if he or she outpolls a party candidate in the primary. To make the Hawaii calculation, the last ten elections were considered to calculate an average.

State	NUMBER	%	Elec. Code Citation	Formula for No. of Sigs.
Florida	0	0	Title 9, sec. 99.0955	no petition; pay filing fee
La	0	0	Title 18, sec. 464.B(1)	no petition; pay filing fee
Okla	0	0	Title 26, sec. 5-112 & 6-106	no petition; pay filing fee
Tenn	25	.01	2-505	number stated in law
N.J.	100	.03	19:13-5	number stated in law
Miss	200	.06	23-15-359	number stated in law
Iowa	300	.08	Title 4, sec. 45.1	number stated in law
Utah	300	.12	20-3-38	number stated in law
Ky	400	.13	Title 10, sec. 118.315(2)	number stated in law
Idaho	500	.15	34-708, 34-617ff	number stated in law
Vermont	500	.17	Title 17, sec. 2402(b)	number stated in law
R.I.	500	.22	17-14-7(e)	number stated in law
Texas	500	.23	Elec. Code 142.007(2)	number stated in law
Colo	800	.22	1-4-801	number stated in law
Wisc	1,000	.26	Title 2, sec. 8.20(4)	number stated in law
Minn	1,000	.27	204B.08	number stated in law
Va	1,000	.29	24.2-506.2	number stated in law
N.D.	1,000	.31	16.1-12-02(5)b	number stated in law
N.H.	1,500	.42	Title 4, sec. 655:42	number stated in law
Maine	2,000	.56	Title 21, sec. 494.5	number stated in law
Mass	2,000	.57	Chap. 53, sec. 6	number stated in law
Ark	2,000	.75	7-7-103(c)(1,4)	number stated in law
Nebr	2,000	.76	32-504)(2)(c)	number stated in law
W.V.	2,138	.96	3-5-23	1% of 2012 vote cast for that office
Ohio	2,408	.69	3513.257(C)	1% of 2010 gubernatorial vote within that district
Nevada	2,435	.96	Title 24, sec. 293.1715.3(c)(1)	1% of 2012 vote cast for that office
Ct	2,933	.94	9-453d	1% of 2012 vote cast for that office
Michigan	3,000	.89	168.544	number stated in law
Alaska	3,017	1.00	15.25.160	1% of number of voters who voted in 2012
S.D.	3,171	.87	12-7-1	1% of 2012 gubernatorial vote
Hawaii	pri votes 3,193	1.47	Title 2, sec. 12-41(b)	Pri. votes, lesser of weakest party winner or 10% pri vote
N.Y.	3,500	1.33	Chap. 17, sec. 6-142(2)(c)	Number stated in law
Oregon	3,579	1.00	Title 23, sec. 249.740(b)	1% of 2012 presidential vote within district
Arizona	3,663	1.43	16.341E	3% of number of registered independents in 2014
Indiana	3,799	1.30	3-8-6-3	2% of 2010 secretary of state vote within that district
Penn	3,928	1.22	Title 25, sec. 2911	2% of 2012 winner’s vote for US House
Maryland	4,628	1.37	Elec. Code, sec. 5-703(e)	1% of number of registered voters in 2014
Wyoming	4,833	1.94	22-5-304	2% of 2012 vote for U.S. House
Kansas	5,000	1.72	25-303	Lesser of 4% of registered voters or 5,000
N.M.	6,018	2.30	1-8-51	3% of 2012 gubernatorial vote within that district
Delaware	6,364	1.54	Title 15, sec. 3002(b)	1% of number of registered voters in 2014
Alabama	6,404	2.16	17-7-1(a)(3)	3% of 2010 gubernatorial vote within that district
Missouri	6,820	1.98	Title 9, sec. 115.321	2% of 2012 gubernatorial vote within that district
S.C.	10,000	3.56	7-11-70	Lesser of 5% of registered voters or 10,000
Montana	12,774	2.64	13-10-502(2)	5% of 2012 vote for winner for that office
Illinois	14,050	4.82	10 ILCS 5/10-3	5% of 2012 vote for that office
Georgia	17,620	6.33	21-2-170(b)	5% of number of registered voters in that district in 2012
N.C.	19,969	5.76	163-122	4% of number of registered voters in that district in 2014
Calif	pri votes 23,542	9.57	Constituton Art II sec. 5	Must place first or second in June primary
Wash	pri votes 35,201	11.26	Admin code, 434-262-012	Must place first or second in August primary

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	#3,017	already on	*1,842	*160	0	June 1	Aug. 26
Ariz.	23,041	*#33,720	already on	*19,000	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.	(reg) *636	*6,365	already on	already on	388	557	Aug. 19	July 15
D.C.	no procedure	* #3,000	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	*49,336	#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	* 37,027	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	*0	*1,000	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	27,905	5,000	*already on	*already on	*already on	0	July 2	May 5
Okla.	66,744	pay fee	0	0	0	0	March 3	April 11
Oregon	17,893	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			33*	19*	14*	5	“	`

#partisan label permitted (other than "independent").
"WK FAM" = Working Families Party.
*means entry changed since the last issue.
The Independent American Party has 2,300 signatures in Utah.

The Commission on Presidential Debates excludes candidates from the debates unless they are at 15% in several neutral polls. But the rules do not say which candidates must be mentioned in those polls. In September 2012, Gary Johnson, the Libertarian presidential nominee, commissioned several reputable polling companies to run a poll asking if respondents prefer President Obama or Johnson. Johnson polled well above 15% in each of these polls. When the Commission still wouldn’t let Johnson into the debates, he sued the Commission. The case was filed in the central district of California, in Los Angeles.

On January 6, 2014, the U.S. District Court in Los Angeles said that the case was filed in the wrong venue. The Commission has its offices in Washington, D.C. Johnson’s vice-presidential running mate, James Gray, lives in California, which is why the case was filed there, but the decision in Johnson v CPD says no poll ever related to Gray and the vice-presidential debates, so the case doesn’t have enough connection to California to be sustained. Johnson is free to re-fiile the case against the Commission in Washington, D.C., and he probably will. The statute of limitations hasn’t expired yet. In the meantime, the California case is still alive because Johnson had also sued the two major parties, and they have enough connection to maintain venue in California. However, that part of the case will probably be put on hold for a while.

On January 8, Gallup released its poll on how U.S. voters self-identify in politics. For the fourth quarter of 2013, the two major parties together are only at 51%, a record low for them since this poll has been conducted. The findings are: independent 46%, Democratic 29%, Republican 22%, no response 3%. The poll does not let respondents choose another party.

Recently, Ralph Nader withdrew $1,100,000 from the PNC Bank and deposited it in other banks. The money is not Nader’s own money, but belongs to various non-profit organizations directed by Nader.

PNC is the sixth largest bank in the U.S., and has branches in 19 states and D.C. Nader took this action because, after the people who challenged his 2004 Pennsylvania ballot access petition were awarded $80,000 in court costs, PNC bank (which is where $38,000 of Nader’s own personal money was deposited) seized the money and gave it to the challengers before Nader’s lawsuit was over.

For the sixth time in a row, Texas Democrats are indirectly helping the Green and Libertarian Parties to remain ballot-qualified for 2016. The indirect help consists of not running a full slate of candidates for statewide office. The two ballot-qualified minor parties must poll 5% for a statewide race (or 2% for Governor) in order to remain on the ballot. When one of the major parties stays out of a race, it is easy for those two parties to meet that vote test. Texas Democrats left three statewide offices unfilled this year.

The 1787 Party, a new centrist party, will attempt to get on the Texas ballot in 2014. It will need 49,729 signatures, and the signers must not have voted in the March primary. The petition drive begins in March. If the party succeeds, it plans to run one very strong U.S. House nominee, but no other nominees. In most states, a party can get on the ballot in a single U.S. House district even if it didn’t qualify statewide. But in Texas, a party must qualify statewide in order to run for any U.S. House or state legislative seats.

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