BALLOT ACCESS PROGRESS IN LEGISLATURES OF 2 STATES

During May, ballot access bills made important progress in two states:

Vermont: on May 7, the legislature passed an improved version of SB 86 that moves the independent candidate petition deadline, and the petition deadline for the nominees of unqualified parties, from June to August. The Governor must act on the bill in the next few days. He is expected to sign the bill.

SB 86 is an omnibus election law bill. Last year the Senate had written the August deadline into the bill, but earlier this year, the House rejected that improvement, and for a while even considered moving the deadline to May. Fortunately, after some activists lobbied, the conference committee restored the August deadline to the bill, and that version then passed both Houses.

The Vermont deadlines had always been in September until 2009, when the legislature moved them to June. As a result, Vermont had fewer candidates for President on its November ballot in 2012 than in any year since 1976. Even the Green Party couldn’t get its presidential nominee on the Vermont ballot in 2012, because the party nominated Jill Stein on July 14, past the deadline. Vermont does not permit stand-in presidential candidates on petitions. The presidential petition requires 1,000 signatures.

The bill also moves the primary from late August to mid-August. The new presidential deadline is August 1, and the petition deadline for other office will be five days before the primary. These changes take effect in 2016.

California: on May 15, the Assembly unanimously passed AB 2351, which eases the definition of a qualified political party. It makes two changes. The first is that the number of registered members for a group to be a qualified party drops from 1% of the last gubernatorial vote to .33% of the number of registered voters.

The second change is that the alternate way a party remains on the ballot, that it poll 2% for any statewide race in a midterm year, is changed so that the 2% is measured in the June primary instead of the November election.

The change in the registration alternative test for party qualification lowers the number of members from 103,004 to 58,280, although that number will rise before the 2016 deadline. The most significant immediate effect is that the bill will keep the Peace & Freedom Party on the ballot. At the April 2014 tally, the party had 77,594 members.

The other qualified parties, other than Americans Elect, each have over 103,000 members.

Another helpful bill, AB 2233, passed the Assembly Elections Committee on May 6, but it hasn’t had a vote on the Assembly floor yet. It lowers the number of signatures in lieu of filing fee, in special elections, to be proportional to the reduction in the time period for getting signatures. Invariably, the time period in special elections is far shorter than the period for ordinary elections; sometimes it is as short as two days.

On May 22, the Oklahoma legislature’s conference committee for the ballot access bill, HB 2134, re-wrote the bill so that it made a huge improvement in presidential ballot access, but no longer made it easier for a newly-qualifying party to get itself on the ballot for all office. Unfortunately, on May 23, the legislature made a surprise decision to adjourn immediately, even though in most years it remains sitting until the May 30 constitutional deadline.

The bill had passed by large margins in both houses of the legislature, but because the two houses passed different versions, a conference committee was needed. Even though the committee then wrote a new version of the bill, the delay was fatal.

The re-written bill would have lowered the number of signatures for an independent presidential candidate, and the presidential nominee of an unqualified party, from 3% of the last presidential vote, to 1.5%. For 2016, the number would have dropped from 40,047 to 20,023.

Just as significantly, the bill altered the petition format. Whereas existing law says the petition must include the name of the presidential candidate, the amended bill said the presidential petition for an unqualified party could circulate without the name of the candidate. That would have made it possible for the petition to be circulated well before the party chooses its presidential nominee. Presumably this bill will be re-introduced in 2015.

On May 23, U.S. District Court Judge Matthew Leitman, an Obama appointee, enjoined a Michigan law that won’t let people circulate a petition to place a candidate on a primary ballot unless the circulator is registered. Moore v Johnson, 2:14cv-11903. As a result, Congressman John Conyers, who is running for re-election in the August 5 primary, is on the ballot. He needed 1,000 valid signatures, and his petition had initially been rejected because some of his circulators weren’t registered voters. But the state admitted that he did have enough valid signatures, if one sets aside the circulator registration requirement. After the decision came down, the Secretary of State said she may appeal.

On May 16, U.S. District Court Judge Neil V. Wake, a Bush Jr. appointee, upheld Arizona’s February petition deadline for newly-qualifying parties. This is the first time that any court, in the last 50 years, has upheld a deadline for newly-qualifying parties earlier than April. Arizona Green Party v Bennett, cv-14-375.

The decision says that Arizona needs a deadline that early so the Secretary of State can get ready for the new party’s primary, which is held six months after the deadline, in August. The judge rejected the party’s argument that the state is free to let newly-qualifying parties nominate by convention. He said it wouldn’t be right for some parties to nominate with a different method than other parties. He knew about the U.S. Supreme Court decision American Party of Texas v White, 415 U.S. 767, which approved a system in which large parties nominate by primary and small parties nominate by convention. But he did not mention that decision in his opinion. The Green Party will appeal.

At the hearing on May 7, it was apparent that the party would lose in U.S. District Court. When the attorney for the Secretary of State took her turn to speak, the Judge consumed all of her time by asking her questions, instead of actually giving her an opportunity to present her case. All of the Judge’s questions were obviously intended to lead her to say the things that the Judge was already thinking.

The party had its 27,000 signatures in court, which showed that it had been making a good faith attempt to comply. The law requires 23,041 valid signatures.

If the appeal is not in time to get the party on the 2014 ballot, the signatures can be used to qualify for 2016. The Ninth Circuit has set a briefing schedule which will allow for a September hearing, and it is conceivable that the case will be speeded up.

Early petition deadlines for newly-qualifying parties have been struck down in Alabama, Alaska, Arkansas (twice), California, Idaho, Indiana, Kentucky, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, New Mexico, Ohio, Pennsylvania, South Dakota, and Tennessee. In some of those cases, the parties that brought the lawsuit had not even tried to petition, but they still won their lawsuits.

On May 1, the Sixth Circuit agreed with the U.S. District Court, that two Ohio statewide candidates should not be on the party’s primary ballot. Libertarian Party of Ohio v Husted, 14-3230. The two were kept off because their petitions to get on the primary ballot were flawed. Although each petition had at least 500 valid signatures, the circulators did not fill out a blank, asking for the name of the person who was paying the circulators. They believed they didn’t need to fill it out, since they were independent contractors.

On May 10, the party asked for reconsideration before all the judges of the Sixth Circuit. That request is still pending as of May 26. The party had also asked for relief from U.S. Supreme Court Justice Elena Kagan on May 2, but she denied it the same day it was presented to her. The party had then asked Justice Clarence Thomas for relief. He referred it to the full Court, but relief was denied on May 5. The Court’s refusal to intervene does not mean that it expressed any opinion on the case.

The outcome is a severe blow to the party, because it now has no candidate for Governor, and the only way it can remain on the ballot after the 2014 election is to poll 2% for Governor. The party will have two other statewide candidates on the November ballot. The only choices for Governor (assuming the party’s request for rehearing is denied) in November will be the Republican, Democratic, and Green Party nominees. The Socialist and Constitution Parties are already on the ballot but they ran no candidates for statewide office.

On May 6, the Ninth Circuit ruled that the California Secretary of State did not violate due process, or any other part of the U.S. Constitution, when she refused to accept the Peace & Freedom Party’s complete list of presidential primary candidates in 2012. The party had asked her to print the names of four presidential candidates on the party’s ballot, but the Secretary of State deleted Peta Lindsay on the grounds that the Secretary of State read in a newspaper that Lindsay was only age 27. Article Two of the U.S. Constitution says Presidents must be at least age 35. Lindsay v Bowen, 13-15085.

The text of the opinion is only six pages long, and the opinion makes the case seem simple by failing to mention precedents and facts on the other side. At the oral argument, the attorney for the Secretary of State admitted there is no statutory authority for the Secretary of State to review the qualifications of presidential candidates, but that fact is missing from the opinion.

Also missing from the opinion is mention of Keyes v Bowen, 189 Cal. App.4^th 647 (2010), which said, "With respect to general elections, section 6901 directs that the Secretary of State must place on the ballot the names of the several political parties’ candidates (italics original)."

Nor does the opinion mention Fuller v Bowen, 138 Cal Rptr 3d 394 (2012), in which the California Appeals Court ruled that election officials cannot keep candidates for the legislature off the ballot, even if they admit they do not meet the state constitutional qualifications. That case concerned the state constitutional qualification that candidates for the legislature must have lived in the district for a year before filing for office. That has not been enforced since the mid-1970’s, even though no court has ever ruled that the state residency requirement violates the U.S. Constitution.

On April 25, the Eleventh Circuit, for the third time, ruled that there must be a trial in U.S. District Court in a Georgia ballot access case. In 2012 the Green Party and the Constitution Party had filed a lawsuit, alleging that the Georgia procedures for getting the presidential candidate of an unqualified party are too difficult. The U.S. District Court had dismissed the case before the state even filed an Answer, must less a brief. The U.S. District Court said it is obvious that the procedures are constitutional, because they had been upheld in 1971 by the U.S. Supreme Court, in Jenness v Fortson, 403 U.S. 431.

The Eleventh Circuit, in January 2014, had ruled that Jenness is not controlling for presidential elections. The Georgia procedures are so difficult, Georgia and Indiana are the only states in which no petition to place either a minor party or independent presidential candidate has succeeded since 2000. The state requires approximately 50,000 valid signatures; each sheet must be notarized; notaries cannot themselves circulate the petition; and it is difficult for petitioners in Georgia to find places to petition, because shopping centers can and do bar petitioners from their property. The Eleventh Circuit noted that the U.S. Supreme Court said in Anderson v Celebrezze that states have diminished interest in keeping presidential candidates off the ballot.

On March 26, the Eleventh Circuit denied Georgia’s request for rehearing. And, on April 25, it denied the state’s request for a stay. The state had asked that the mandate be stayed while the state asked the U.S. Supreme Court to reverse the Eleventh Circuit.

Therefore, the case will be tried. The state’s opening brief is due May 31.

Georgia has had fewer minor party and independent presidential candidates on its ballot, in the period 1968 to the present, than any other state except Oklahoma. See the charts in the next section which shows how each state ranks.

Below are two charts, each ranking the states in difficulty, for minor party and independent presidential candidates. For each chart, the easier states are at the top, and the hardest states are at the bottom.

The middle column on this page shows how many presidential candidates (other than the Democratic and Republican candidates) were on the ballot in each state, on the average, for the period 1968-1988.

The right column on this page shows how many presidential candidates (other than the Democratic and Republican candidates) were on the ballot in each state, on the average, 1992-2012.

The advantage of using this method is that it is realistic. Obviously, in a genuine sense, the easiest states are the states in which the greater number of candidates qualify.

The alternate method of comparing states, involving comparing the number of signatures needed to get on the ballot, is less realistic, because other restrictions, such as early deadlines, severe weather, notarization requirements, restrictions on who can circulate and on where petitioning can be carried out, also influence the ability of groups and candidates to get on the ballot.

The state with the greatest decline in voter choice between the 1968-1988 period and the more recent period is Indiana. This is because the legislature quadrupled the number of signatures in 1980, effective 1983.

Other jurisdictions that declined are Illinois, Kansas, Kentucky, Michigan, New Hampshire, North Carolina, North Dakota, Oklahoma, Pennsylvania, and the District of Columbia. In each case, the ballot access laws were made worse in those places during the period between 1974 and 1990.

The nation as a whole improved. The average number of candidates in the earlier period was 3.4, but the average in the later period was 4.4.

CANDIDATES 1968-1988 New Jersey 7.8 Minnesota 7.3 Washington 6.8 Iowa 6.7 Wisconsin 6.3 North Dakota 6.2 Colorado 5.3 Michigan 5.3 Tennessee 5.3 Utah 5.0 Kentucky 4.8 New York 4.5 Ohio 4.5 Utah 4.5 Pennsylvania 4.3 Rhode Island 4.3 Alabama 4.2 Dist. Columbia 4.2 Illinois 4.2 New Mexico 4.0 Louisiana 3.8 Kansas 3.5 Mississippi 3.5 New Hampshire 3.5 California 3.3 Arkansas 3.0 Indiana 3.0 Delaware 2.8 Virginia 2.8 Arizona 2.7 Idaho 2.3 Massachusetts 2.3 South Dakota 2.2 Hawaii 2.0 North Carolina 2.0 South Carolina 2.0 Connecticut 1.8 Maine 1.8 Montana 1.8 Nebraska 1.8 Maryland 1.7 Texas 1.7 Alaska 1.5 Nevada 1.3 Oklahoma 1.3 Oregon 1.3 Florida 1.2 West Virginia 1.2 Missouri 1.0 Wyoming 1.0 Georgia .8

CANDIDATES 1992-2012 Colorado 10.0 New Jersey 8.2 Iowa 7.3 Louisiana 7.3 Minnesota 7.3 Washington 7.3 Wisconsin 7.3 Utah 7.2 Tennessee 6.8 Arkansas 6.5 Florida 6.5 Vermont 6.0 Rhode Island 5.8 Mississippi 5.2 New Mexico 5.0 New York 5.0 Ohio 4.7 California 4.5 Alaska 4.3 Michigan 4.3 Nevada 4.3 Alabama 4.2 Oregon 4.2 South Carolina 4.2 Delaware 4.0 Dist Columbia 4.0 Nebraska 4.0 North Dakota 4.0 Hawaii 3.8 Kentucky 3.8 Illinois 3.7 Massachusetts 3.7 Idaho 3.5 Maine 3.5 Maryland 3.5 Virginia 3.5 Connecticut 3.2 Kansas 3.2 Montana 3.2 South Dakota 3.2 Missouri 3.0 Pennsylvania 3.0 Wyoming 3.0 Arizona 2.8 New Hampshire 2.8 West Virginia 2.7 Texas 2.2 Indiana 1.7 North Carolina 1.7 Georgia 1.5 Oklahoma 1.0

On May 14, U.S. District Court Judge Stephen J. Murphy, a Bush, Jr. appointee, upheld Michigan’s ballot access laws for newly-qualifying parties, in a challenge filed by a Socialist Party candidate. Erard v Secretary of State, e.d., 2:12cv-13627.

Michigan requires newly-qualifying parties to submit 32,261 valid signatures this year, yet a party that polled at least 16,083 votes in November 201 automatically remains on the ballot. The lawsuit argues that Michigan is discriminating against new parties relative to old ones. In support of the contention that this is unconstitutional, Erard mentioned the U.S. Supreme Court decision Williams v Rhodes, which struck down Ohio’s laws in 1968 partly because new parties needed a 15% petition, but old parties could stay on with a 10% vote. Erard also cited Baird v Davorem, a 1972 Massachusetts case that said it was unconstitutional for Massachusetts to require a 3% petition to get on, when the vote test to remain on was only one-tenth of 1%.

The judge said because every party in Michigan had to petition to get on originally, there is no Equal Protection violation. The statement that every party in Michigan had to petition to get on the ballot is factually wrong. No party in Michigan was required to petition until the law was changed in 1939, so the Democratic and Republican Parties never needed a petition. Erard had included this information in his brief, but the Judge apparently overlooked it. Erard will ask for reconsideration.

On May 8, Kansas Governor Sam Brownback signed HB 2130, which repeals the ban on out-of-state circulators. The only states that still have bans on out-of-state circulators (for any type of petition) are Alaska, Connecticut, Maine, New Jersey, New York, North Dakota, Pennsylvania, and South Dakota.

On May 1, the Rhode Island House unanimously passed HB 8072, which repeals the straight-ticket device. A straight-ticket device enables voters to cast a ballot on all partisan offices without even looking at the list of candidates running. Straight-ticket devices are always at the top of the ballot, and with a single movement, a voter can vote for all the nominees of one party. These devices injure independent candidates.

It is not clear if the Senate will also pass the bill before the legislature adjourns in early June.

On May 13, the Louisiana legislature passed HB 193, which repeals the ban on any party using the word "Independent" in its name.

Assuming the bill is signed into law, it is not clear whether a new ballot-qualified party called the "Independent Party" will spring into existence. Louisiana requires a newly-qualifying party to have at least 1,000 registered members, and also to pay a one-time-only fee of $1,000. There are tens of thousands of voters registered "independent" in Louisiana, but the state may say that if someone wishes to qualify an "Independent Party", the voter will need to write in "Independent Party" on the form, not just "independent."

During May, two competing groups began circulating initiative petitions to establish a top-two system in Oregon. One would be similar to the California/Washington top-two system. The other differs because it provides that in the primary, a voter could vote for as many candidates as desired. Each initiative needs 87,213 valid signatures by July 3.

During April and May, there was a notable increase in opinion pieces critical of the California top-two primary system in important media. On May 6, the Sacramento Bee carried an op-ed by Michael Feinstein titled, "Top-Two Primary System is Eliminating Diverse Political Expression."

Then, on May 23, the Bee carried another op-ed, by Steve Maviglio, "Mischief in Top-Two Primary System." It illustrates examples of candidates for Congress and partisan state office attempting to recruit candidates of the other major party, so as to alter who places first or second. It also discusses strategic voting, in which voters vote for someone they don’t agree with at all, just because that may help the candidate they do want to elect. For example, Maviglio said he recently cast his absentee ballot for Tim Donnelly for Governor, because he thinks Jerry Brown will be helped if Donnelly, rather than another Republican, qualifies for the second spot in the primary. Maviglio is a Democrat who supports Brown.

Capital and Main, a nonpartisan California politics blog, carried a series by Pulitzer Prize winner Gary Cohn. The first installment, on April 15, is titled, "In plain sight: The Rise of Corporate Democrats in California"; the second installment, run on May 14, is "Backroom Fix: How Eight Democrats Denied Health Plans to Hundreds of Thousands of Californians." Although the titles do not suggest it, the two articles are about how the top-two system has disadvantaged labor and helped business.

The East Bay Express carried an editorial on May 20, making the same point expressed by Cohn. On April 15, the Los Angeles Times carried a news story, "Top-two Primary Might be Bad for Small-Party Candidates." When the top-two system was on the ballot in June 2010, the Times, the Bee, and the Express had all endorsed the measure.

On April 25, the Institute for Govermental Studies at the University of California at Berkeley held a forum on California’s top-two system.

One panel consisted of political consultants, who were unanimous that the top-two system results in the need for many candidates to spend as much as twice as much money as they would have needed under the old system. Another panel, consisting of political scientists, presented some papers that the top-two system has not boosted moderate politicians, although not all papers were unanimous on that point. The Institute will publish a Report on the symposium in July.

On May 5, the Public Policy Institute of California published a paper, "Voter Turnout in Primary Elections", which highlights the poor turnout in California primaries since the top-two system was implemented, and which recommends that the system be altered so as to permit a candidate to petition directly on to the general election ballot, or at least to allow write-in space on the November ballot.

Arkansas: on May 23, a state trial court ruled that the law requiring voters at the polls to show government photo-ID violates the State Constitution. Kohls v Martin. The judge stayed his own ruling, because the State is appealing.

The same judge had previously ruled the law unconstitutional in another lawsuit, Arkansas State Board of Election Commissioners vPulaski County Election Commission. However, on May 14, the State Supreme Court had reversed that decision on the grounds that the plaintiff had not requested that relief.

Pennsylvania: on April 28, the same Commonwealth Court that had found the photo ID law to violate the state Constitution refused to reconsider. A few days later, the state said it will not appeal the decision, and will seek to re-write the law. Applewhite v Commonwealth, 330 m.d. 2012.

Wisconsin: on April 29, a U.S. District Court invalidated that state’s law requiring voters at the polls to show government photo ID. Frank v Walker, e.d.,11-cv-1128. The state is appealing.

Arizona: on May 15, four Republican voters filed a federal lawsuit against the county distribution requirement for statewide petitions to get a candidate on a primary ballot. The law requires signatures of one-half of 1% of a party’s members (unless the party is a new party). That requirement is not challenged. But the lawsuit attacks the additional requirement that the one-half of 1% standard must be met in at least three counties. Arizona Public Integrity Alliance v Bennett, 2:14cv-1044.

Arizona (2): on May 9, the Ninth Circuit struck down a law that prohibits candidates for state judge from engaging in certain forms of political activity. Wolfson v Concannon, 11-17634. These laws forbade candidates from soliciting campaign contributions, making speeches on behalf of a political party or another candidate, or endorsing another candidate.

Kansas: on May 19, the Tenth Circuit issued a stay in Kobach v U.S. Election Assistance Commission, 14-3062. This is the case in which Kansas and Arizona are trying to force the U.S. government to alter the federal voter registration form used in those two states. The U.S. District Court had ordered the federal agency to alter the forms, but that order is now on hold. The Tenth Circuit also expedited the case.

New Jersey: on March 5, some voters who want to vote in Democratic and Republican primaries, but who don’t want to be listed as party members, even for one day, filed a federal lawsuit to either let them vote in those primaries, or to order the state to stop paying for administration of the primaries. Balsam v Guadagno, 2:14cv-1388. On May 9, the state filed a brief, arguing that the case should be dismissed. The plaintiffs will file their first brief by July 3.

On May 10, former Wisconsin Governor Patrick J. Lucey died. In 1980, when Congressman John B. Anderson of Illinois ran for President as an independent, Lucey was Anderson’s vice-presidential candidate. Lucey was 96.

Lucey had not joined the Anderson ticket until August 27, 1980. Most of Anderson’s ballot access petitions had already been turned in, bearing the name of Milton Eisenhower for Vice-President. Eisenhower, the older brother of President Eisenhower, had consented to be the stand-in vice-presidential candidate, but was 90 at the time. Almost every state let Anderson substitute Lucey for Eisenhower. Anderson sued three states that wouldn’t permit substitution, and won all three cases, against Florida, Pennsylvania, and Indiana.

In 2012, Fred Smith was elected to the Arkansas House as the Green Party nominee. In 2014, he switched to the Democratic Party and ran in its May 20 primary. However, he lost the primary. This is the second time an Arkansas legislator, elected as a Green, tried to be re-elected by running as a Democrat. Richard Carroll had been elected as a Green in 2008, but he then lost the 2010 Democratic primary.

On May 23, leaders of the New York state Independence Party announced they had endorsed all the statewide Democratic Party candidates for 2014. This puts the Democrats in the Independence Party primary with no need for a petition, and makes it virtually certain that in November, all the Democratic nominees will also be listed as Independence Party nominees. The only statewide Republican nominee the Independence Party has ever nominated was John McCain for President in 2008.

Libertarian Party nominees for Governor and U.S. Senator in several southern states have surprisingly high support, according to recent polls. On May 13, Public Policy Polling released a poll for the North Carolina U.S. Senate race, showing Libertarian Sean Haugh at 11%. On April 29, SurveyUSA released a Georgia gubernatorial poll, showing Libertarian Andrew Hunt at 9%. On April 25, Mason-Dixon Polls released a Florida gubernatorial poll showing likely Libertarian nominee Adrian Wyllie at 4%. In each case, if the Libertarian did receive that share of the vote, that would be the highest percentage received by a non-major party nominee for those offices in at least 98 years.

On May 20, Bob Barr, running in the Georgia Republican primary for U.S. House, 11^th district, placed second, with 26% of the vote. He will be in the run-off on July 22. Barr was the Libertarian nominee for President in 2008.

The 2014 petitioning chart will return in July. During May, the only minor party petition that was found valid is the New Mexico Constitution Party petition. Also during May, the minor party petition that made the most headway was the Illinois Libertarian petition, which obtained 16,000 signatures in the last thirty days and now has 26,000. The Illinois deadline is June 23, and 25,000 valid are needed.

The only states with statewide office up in November 2014, for which there will probably be no non-major candidates on the ballot, are Alabama, California, and New Mexico. Other states in which a Democratic-Republican monopoly for all statewide offices is possible (depending on whether certain petition drives succeed) are Kentucky, New Hampshire, Pennsylvania, and Rhode Island. Washington is the only state that has no statewide office up in 2014.

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