THIRD CIRCUIT SAYS MINOR PARTIES HAVE STANDING TO CHALLENGE PETITION-CHECKING SYSTEM

TEN YEAR NIGHTMARE LIKELY TO END

On July 9, the Third Circuit ruled that the Constitution, Green, and Libertarian Parties do have standing to challenge the Pennsylvania method for checking ballot access petitions. Constitution Party of Pennsylvania v Aichele, 13-1952.

This is the first ballot access victory in the Third Circuit since 2003. The Third Circuit includes Pennsylvania, New Jersey, and Delaware. In 2003 the Third Circuit had struck down Pennsylvania’s mandatory candidate filing fees, in Belitskus v Pizzingrilli, a case filed by the Green Party. In the eleven years since then, the Third Circuit has ruled against minor parties four times, either on the merits, or on standing.

The July 9 decision was 2-1. Judge Kent Jordan, a Bush Jr. appointee, wrote the decision. It was co-signed by Judge Jane Roth, a Bush Sr. appointee. The "no" vote was by Judge Thomas Ambro, a Clinton appointee.

The Pennsylvania system for checking ballot access petitions puts petitioning groups at risk of paying up to $110,000 in court costs if their petitions don’t have enough valid signatures. The first victim of this system was Ralph Nader, in 2004. His petition was rejected (even though it had twice as many signatures as the requirement) and he was assessed $86,000. A similar amount was assessed in 2006 against the Green Party’s nominee for U.S. Senate, Carl Romanelli.

In 2010, the minor parties were threatened with paying similar amounts, so they withdrew all their statewide petitions. Pennsylvania, New Mexico, and Alabama are the only states that have had a Democratic-Republican ballot monopoly for both previous midterm years, 2006 and 2010, for all statewide office.

The three parties had filed a case against this system in 2009, a year in which they did not petition (Constitution Party v Cortes). But the U.S. District Court and the Third Circuit both ruled that they didn’t have standing. In the current case, the same U.S. District Court Judge, Lawrence Stengel, had again ruled that the parties don’t have standing, but his decision has now been reversed.

Because the Third Circuit already ruled in 2003 that a filing fee of even $100 is unconstitutional for candidates who can’t afford to pay it, it is very likely that the current challenge system is also unconstitutional. The U.S. Supreme Court has ruled four times that voters and candidates cannot be forced to pay money to exercise voting rights, if they can’t afford it. Two cases dealt with poll taxes, and two with candidate filing fees.

Pennsylvania says it may ask for a rehearing in the Third Circuit, and has obtained an extension until August 6 to decide whether to do that.

Judge Thomas Ambro, who voted against the parties, has an erratic record in ballot access cases. On September 13, 2011, he and one other judge ordered that Carl Lewis be placed on the New Jersey ballot as a Democratic Party nominee for state legislature (Carl Lewis is a well-known Olympic star and he probably would have been elected if he had been on the ballot).

But nine days later, the same judges had to recant their earlier order, after it was pointed out to them that the U.S. Supreme Court had already determined that duration of residency requirements (which Lewis had challenged, because he hadn’t lived in New Jersey long enough) for state candidates are constitutional.

On July 24, attorneys for the Arizona Secretary of State conceded that one ballot access law is unconstitutional, and asked that a U.S. District Court Judge invalidate it. That law is the distribution requirement for statewide primary petitions.

Candidates seeking a place on a statewide primary ballot need the signatures of one-half of 1% of the party’s members. That law was not challenged. But, they also need to obtain one-half of 1% in each of at least three counties. The county distribution requirement will now be struck down. Arizona Public Integrity Alliance v Bennett, 2:14cv-1044.

The county distribution requirement has existed since Arizona became a state in 1912.

The U.S. Supreme Court ruled in 1969 that county distribution requirements for statewide petitions are unconstitutional, because counties have widely differing populations. It has taken decades for all of these laws to be overturned, however. The only remaining distribution requirement for statewide candidate petitions is in Pennsylvania, where primary candidates for some office need signatures from ten counties.

Two initiatives circulated in Oregon this year for a top-two system. The measure that imitates the system used in Washington and California qualified for the ballot. The alternate one, which was the same except that Approval Voting would have been used in the primary, did not qualify.

Georgia: on July 29, Jeff Amason, the only Libertarian who petitioned this year for the legislature, filed a lawsuit in state court to get on the November ballot. Even though he collected the signatures of 5% of the voters in House district 21, his petition was ruled invalid because his wife notarized most of the sheets, and she unfortunately circulated a few sheets herself. Amason argues that the law permits corporate officers to notarize documents for the corporation, and his campaign is incorporated, and his wife is a corporate officer, so her notarization work is valid. Amason v Kemp.

Illinois: on July 15, the Green Party filed a lawsuit against three laws: (1) the "binder check" process, which expects petitioning groups to furnish twelve individuals who will work for eight hours, at least five days, to help the state decide if the petition is valid; (2) the law that forces an unqualified party to run a full slate of candidates; (3) the law that won’t let petitioning start until March of the election year; (4) the rule that each sheet be notarized. Summers v Smart, n.d., 1:14cv-5398. The case has oral argument on August 13, and is assigned to U.S. District Court Judge John Tharp. Judge Tharp ruled favorably in 2013 in another Green Party ballot access lawsuit, Jones v McGuffage. That decision struck down the 5% petition requirement for district office, in special elections.

New Hampshire: on July 22, the Libertarian Party filed a federal lawsuit against the law passed earlier this year that makes it illegal to circulate the party petition in odd years. Libertarian Party v Gardner, 1:14cv-322. The party petition requires signatures equal to 3% of the last gubernatorial vote. It is so difficult, it has only been used twice, in 2000 and 2012. The Libertarian Party, which did both petitions, started the 2000 petition in April 1999 and took over a year to finish; the 2012 petition was started in August 2011 and also took a year to finish.

New Mexico: on July 3, independent candidate James T. Parker filed a federal lawsuit against the law that requires independent candidates to submit a petition of 3% of the last gubernatorial vote. Parker is running for Public Education Commission, a partisan office elected by districts. He points out that if he had been the nominee of a minor party, he would only have needed a petition of 1% of the last gubernatorial vote. Courts in Alabama, Florida, and North Carolina have ruled that it is unconstitutional to require independent candidates to get more signatures than minor party candidates. Parker v Duran, 1:14cv-617. Unless Parker gets on the ballot, there will only be one candidate, a Democrat, on the ballot. Parker is an incumbent by virtue of having been appointed last year, so this is his first election.

South Dakota: on July 23, the Constitution Party nominee for U.S. House, Charles W. Haan, filed a lawsuit against the law that required him to obtain 250 signatures of party members to get himself on the party’s June primary ballot. The party only has about 600 registrants, and they are the only voters who can sign. Haan v Gant. The case was assigned to U.S. District Court Judge Roberto Lange, who had upheld the same law in 2010 in a similar Constitution Party lawsuit. However, the 2010 lawsuit was marred by the fact that the plaintiff-candidate withdrew before the lawsuit was adjudicated. Judge Lange said none of the remaining plaintiffs had standing, but he then proceeded to uphold the 250-signature requirement anyway. The party appealed and the Eighth Circuit said the U.S. District Court, having found a lack of standing, should not have ruled on the merits, so the issue has a clean slate.

Tennessee: on July 30, the Libertarian Party filed a federal lawsuit to require the state to list its nominees on the ballot as "Libertarian", rather than "independent." The basis is that the law on how a new party gets on the ballot has been declared unconstitutional and the state has not enacted a new one. Lewis v Goins, middle district.

Minor party and independent candidates filed these lawsuits recently against laws (other than ballot access laws) that discriminate against them:

Maine: on July 7, four donors who wish to contribute more than $1,500 to an independent candidate for Governor filed a federal lawsuit, challenging the law that lets donors give $3,000 to a candidate who runs for Governor in a primary, but only half as much for donors who want to give to an independent candidate. Woodhouse v Maine Commission on Governmental Ethics & Election Practices, 1:14-266.

Virginia: on July 2, some Libertarian Party candidates and an independent candidate filed a federal lawsuit against the law that puts the nominees of qualified parties first on the November ballot. Sarvis v Judd, e.d., 3:14cv-479. Similar lawsuits have won during the last decade in New Hampshire and Tennessee, and in earlier years in California and North Dakota.

Wyoming: on June 23, the Constitution Party nominee for Secretary of State and a donor who wants to contribute to him filed a lawsuit against the state law that allows donors to give to candidates running in a primary during the first half of the year, but won’t let donors give to candidates nominated in a convention (i.e., minor party candidates) until August of the election year. Wills v Mead, 2:14cv-126.

The lawsuit Libertarian Party of Ohio v Husted has so far failed to result in a restoration of the Libertarian Party’s ballot access for Governor this year. However, the case is very active, and that outcome is still possible. On July 24, the U.S. District Court ruled that the party’s attorneys are permitted to depose the individuals who challenged the party’s primary petitions, and also to depose the Secretary of State’s hearing officer who ruled against the party.

Alabama: on July 23, the Eleventh Circuit said Stein v Chapman needs oral argument, even though neither side requested it. This shows the three judges feel this is a close case. The issue is the March petition deadline in presidential years for newly-qualifying parties. Such parties nominate by convention, not primary, so there is no election-administration reason for an early deadline. Alabama requires 44,829 signatures.

Alaska: on June 24, the Ninth Circuit ruled 2-1 that the petitioner who challenged the ban on out-of-state circulators lacks standing. Raymond v Fenumiai. The plaintiff, Robert Raymond, had said he wants to work on Alaska initiatives. The court said he should have mentioned a particular initiative that he wants to work on.

Arizona: the Legislature has asked the U.S. Supreme Court to hear its appeal on whether independent redistricting commissions for Congress violate the U.S. Constitution. Az. Legislature v Az. Independent Redistricting Commission, 13-1314. The Court will consider whether to take this case on September 29.

California: all the briefs have now been filed in the State Appeals Court in Rubin v Bowen, District One, A140387. This is the minor party lawsuit against the top-two system. The minor parties’ reply brief, filed July 23, emphasizes that the case is about voting rights, not party rights.

Florida: on July 10, a lower state court invalidated the state’s U.S. House district boundaries. The State Constitution says the legislature can’t draw the lines to help or injure any party, but the trial court determined that the lines had been drawn to help Republicans. Pomo v Detzner.

Tennessee: the Sixth Circuit will hear the minor party ballot access case on August 7. The issue is whether the 2.5% petition (approximately 40,000 signatures) is constitutional, given that the state only requires 25 signatures for independent candidates. Green Party of Tennessee v Hargett, 13-5975.

The July 22, 2014 New York Times carried an op-ed by U.S. Senator Charles Schumer (D-N.Y.), in support of top-two systems. The title is "End Partisan Primaries, Save America." The subtitle is "To reduce polarization, adopt California’s ‘top two’ voting model."

The piece perfectly epitomizes the flaw in most top-two advocacy. The advocates rarely do any research. They write about top-two systems as they imagine them to work, instead of taking the trouble to investigate how they actually work.

Senator Schumer’s presumption that a top-two system puts more moderate candidates in office has been rebutted by political scientists who have studied the system as it has worked since 1975 in Louisiana, since 2008 in Washington, and since 2011 in California. See some of the research at fivethirtyeight.com/datalab/chuck-schumer-is-wrong-about-the-top-two-primary. Or, see the front page article in the print edition of Ballot Access News, September 1, 2013 issue, which describes five scholarly studies that were published in 2013, authored by 14 political scientists.. Also see Professor Todd Donovan’s study of the Washington state top-two system, "The Top Two Primary: What Can California Learn from Washington?" pubished in Vol. 4, Issue 1 (2012) of The California Journal of Politics & Policy.

Senator Schumer writes, "in most states, laws prohibit independents from voting in primaries at all." Actually, only sixteen states don’t let independents vote in either Democratic or Republican congressional primaries (Colorado, Connecticut, Delaware, Florida, Iowa, Kentucky, Maryland, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Wyoming). This can be verified by looking at America Votes 2012, a reference book by Rhodes Cook. Furthermore, even among those 16 states, five states let independents vote in primaries if they join such party at the polls on primary day.

Those five states are Colorado, Iowa, New Jersey, Rhode Island, and Wyoming.

Schumer deplores the results of the June 2012 Virginia Republican primary in which Eric Cantor was defeated. But Virginia has open primaries, in which any voter is free to vote in any primary. One wonders if Schumer knows that, because his example contradicts his thesis that letting independents vote in primaries thwarts victory by extremists.

Schumer asserts that California’s polarization was cured by top-two. What cured California’s troubled legislative process was Proposition 25, passed in November 2010. It repealed the law that required the budget to be approved by a two-thirds vote of the legislature. With only a majority now required for the budget, California Democrats were now free to pass any budget they wished, and gridlock was instantly cured. The California legislature is still heavily polarized, but that is no longer a major problem. Similarly, if one party controlled both houses of Congress and the presidency, and there were no filibuster process, polarization would not be a big problem in Congress.

Despite all the dissatisfaction with U.S. election, there is little discussion in the U.S. about moving to proportional representation. Great Britain does use that system for its elections for the European Parliament. The British ballot below is for those elections, held May 22, 2014.

Britain is divided into 12 districts for those elections. Britain elects 73 members. The UK Independence Party won 24 seats, Labour 20, Conservative 19, Greens 3, Scottish National 2, and one each for the Liberal Democrats, Sinn Fein, Democratic Unionist Party, Plaid Cymru, and Ulster Unionist.

Proportional representation completely solves the "wasted vote" and "spoiler" problems, and allows every group of substance to enjoy representation.

STATE	REQUIREMENTS		SIGNATURES OR REGIS. OBTAINED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	Wk Fam	Party	Indp.
Ala.	44,829	44,829	too late	too late	too late	too late	June 3	June 3
Alaska	(reg) 8,925	#2,975	already on	(reg)*1,774	*3,000	0	June 1	Aug. 19
Ariz.	23,041	#34,028	already on	in court	too late	too late	Feb. 28	May 28
Ark.	10,000	10,000	already on	already on	too late	too late	Jan 2	in court
Calif.	(reg) 103,004	65 + fee	already on	already on	too late	too late	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. 6
Del.	(reg) 637	6,364	already on	already on	(reg) 380	(reg) 535	Aug. 19	July 15
D.C.	no procedure	(est.) #3,900	already on	already on	0	0	– – –	Aug. 6
Florida	0	pay fee	already on	already on	already on	too late	May 2	May 2
Georgia	50,334	#50,334	already on	0	0	0	July 8	July 8
Hawaii	706	25	already on	already on	too late	too late	Feb. 20	June 3
Idaho	13,102	1,000	already on	0	already on	0	Aug. 30	March 14
Illinois	no procedure	#25,000	*finished	*in court	*too late	too late	– – –	June 23
Indiana	no procedure	#34,195	already on	too late	too late	too late	– – –	June 30
Iowa	no procedure	#1,500	*900	0	0	0	– – –	Aug. 15
Kansas	16,776	5,000	already on	0	0	0	June 2	Aug. 4
Ky.	no procedure	#5,000	*6,000	0	0	0	– – –	Aug. 12
La.	(reg) 1,000	pay fee	already on	already on	(reg) 120	0	May 15	Aug. 22
Maine	(reg) 5,000	#4,000	*too late	already on	*too late	*too late	Dec 12, 13	May 25
Md.	10,000	37,293	already on	already on	0	0	Aug. 4	Aug. 4
Mass.	(reg) 42,391	#10,000	*too late	*finished	*too late	*too late	Nov. 5, 13	July 29
Mich.	32,261	30,000	already on	already on	already on	0	July 17	July 17
Minn.	146,297	#2,000	already on	already on	too late	too late	May 1	June 3
Miss.	be organized	1,000	already on	already on	already on	too late	March 3	March 3
Mo.	10,000	10,000	already on	0	already on	0	July 28	July 28
Mont.	5,000	#11,823	already on	too late	too late	too late	March 13	May 27
Nebr.	4,880	4,000	already on	0	0	0	Aug. 1	Sep 2
Nev.	(reg. or pet) 9,738	250	already on	in court	already on	too late	April 11	Feb. 6
N. Hamp.	20,779	#3,000	*250	0	0	0	Aug. 6	Aug. 6
N.J.	no procedure	#800	already on	0	0	0	– – –	June 3
N. M.	3,009	18,053	already on	*already on	already on	0	June 24	June 24
N.Y.	no procedure	#15,000	*9,000	already on	0	already on	– – –	Aug. 19
No. Car.	89,366	89,366	already on	too late	too late	too late	May 17	June 12
No. Dak.	7,000	1,000	already on	0	0	0	Apr. 11	Sep. 2
Ohio	27,905	5,000	already on	already on	already on	*too late	July 2	May 5
Okla.	66,744	pay fee	(already)	too late	too late	too late	March 3	April 11
Oregon	17,700	18,279	already on	already on	already on	already on	Aug. 26	Aug. 26
Penn.	no procedure	#16,639	*too late	*finished	*too late	*too late	– – –	Aug. 1
R.I.	17,115	#1,000	*already on	*too late	*too late	*too late	June 2	July 11
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	too late	already on	too late	Mar. 25	April 29
Tenn.	40,042	25	(already)	already on	already on	0	Aug. 6	April 3
Texas	49,729	49,729	already on	already on	too late	too late	May 26	June 26
Utah	2,000	#1,000	already on	too late	already on	too late	March 1	March 20
Vermont	be organized	#500	already on	too late	too late	already on	Jan. 1	June 12
Virginia	no procedure	#10,000	*already on	*too late	*too late	*too late	– – –	June 10
Wash.	no procedure	#pay fee	*too late	*too late	*too late	*too late	– – –	May 16
West Va.	no procedure	#6,516	already on	already on	*finished	*too late	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	*too late	May 1	June 2
Wyo.	4,833	4,833	already on	0	already on	0	June 1	Aug. 25
TOTAL STATES ON			40*	23*	16	5	“	`

# label permitted (other than "independent").
"WK FAM = "Working Families".
*entry changed since May issue.
"Reg" = registrations.
"(already)" = party has placed a statewide nominee on the ballot, but party label is not allowed on ballot.

On June 24, Florida held a special election for U.S. House, 19^th district. The vote: Republican Curt Clawson 66.9%; Democrat April Freeman 29.3%; Libertarian Ray Netherwood 3.7%. When this same district had voted in November 2012, the vote had been: Republican 62.0%; Democratic 35.8%; independent 2.2%. The district is in southwest Florida and includes Fort Myers and Naples.

This was the first time a minor party candidate in this district had appeared on the ballot since 2000, when a Natural Law Party candidate ran.

Marianne Williamson, independent candidate for Congress in California’s 33^rd district, spent $1,934,466 on her 2014 campaign, according to her July 1 campaign spending report filed with the FEC. Nevertheless, the top-two system kept her off the general election ballot. She placed fourth, so she can’t continue to run.

She easily outspent her major party opponents. The two who will be on the November ballot are Democrat Ted Lieu, who spent $1,054,416; and Republican Elan Carr, who spent $631,335.

This year, the independent candidate for Congress who has spent the second highest amount of money on his campaign so far is Greg Orman, independent for U.S. Senate in Kansas. He has already spent $600,000 and, because he is on the November ballot, he will be raising and spending more in the coming months.

On July 22, Georgia held a runoff Republican primary for U.S. House, 11^th district. Former Congressman Bob Barr was defeated by a 2:1 margin by Barry Loudermilk, who is considered a "Tea Party" Republican. Barr was the Libertarian nominee for President in 2008.

Oregon permits two parties to jointly nominate the same candidate. On July 21, the ballot-qualified Independent Party announced that Dennis Richardson had won its privately-financed primary for Governor. Richardson is also the Republican nominee, so he will be on the November ballot as "Republican, Independent."

Massachusetts has nine U.S. House districts. This year, Republicans are running in only three of them. The culprit is the state’s severe ballot access law for U.S. House in primaries. Massachusetts requires more signatures for that office to get on the primary ballot than any other state. The requirement is 2,000 signatures, and only party members and independents can sign. A recent Boston Globe article discussed why there are so few candidates, but did not mention the ballot access law.

"United States Congressional Elections 1788-1997" is a 1,005 page reference book by Michael Dubin that sells for $409 from the publisher. However, while supplies last, Fairvote is selling copies for $20, and including shipping. To buy this book, which is the only book that lists all candidates for Congress in general elections, their vote, their party, and their percentage, send a check for $20 to Fairvote, to 6930 Carroll Ave., #610, Takoma Park Md 20912.

The July 1 BAN listed states in which the straight-ticket device has been repealed in the last fifty years, but forgot to list Wisconsin, which repealed it in 2011.

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