MINOR PARTIES AND INDEPENDENT CANDIDATES WIN FOUR CONSTITUTIONAL ELECTION LAWSUITS DURING AUGUST

Maine: On August 22, U.S. District Court Judge D. Brock Hornby, a Bush Sr. appointee, enjoined a Maine law that lets individuals give twice as much money to a candidate for state office who runs in a primary, than to a candidate who gets on the November ballot by petition. Woodhouse v Maine Commission on Governmental Ethics & Election Practices, 1:14-266. The Plaintiffs want to give $3,000 to independent gubernatorial candidate Eliot Cutler. The law said they could only give him $1,500, yet the law would have let anyone give $3,000 to a party nominee for Governor. The opinion characterizes this as "unconstitutional discrimination."

This is the first constitutional election law case victory in federal court in Maine for any independent or minor party plaintiff since 1984, when a U.S. District Court struck down Maine’s April petition deadline for non-presidential independents. In the years since 1984, minor parties and independent candidates have lost several lawsuits concerning petition-checking procedures. Also, the Maine Green Party lost several cases over the definition of a qualified party, and the Maine Libertarian Party lost a lawsuit over the number of signatures for the member of a small qualified party to get on his or her party’s primary ballot.

Pennsylvania: On July 31, U.S. District Court Judge Stewart Dalzell, a Bush, Sr. appointee, enjoined Pennsylvania’s ban on out-of-state petition circulators. Green Party of Pennsylvania v Aichele, e.d., 2:14cv-3299.

The only states that still ban out-of-state circulators for all types of petition are Alaska, Connecticut, New Jersey, and New York. States that have such a ban for initiatives, but not other types of petitions, are Maine, Montana, and North Dakota.

Also, South Dakota bans out-of-state circulators for candidates and for initiatives, but not for petitions to qualify new parties.

The judge did not enjoin several other laws, but their constitutionality will be resolved later. The same case challenges the notarization of each petition sheet; the requirement that only registered voters can sign (a literal reading of the law says that individuals who aren’t registered, but who are eligible to register, may also sign); and the prohibition on signers from different counties signing the same sheet.

It is possible that this lawsuit will be consolidated with Constitution Party of Pennsylvania v Aichele, which challenges the practice that groups that submit petitions with fewer than enough valid signatures must pay court costs of up to $110,000.

South Dakota: On August 18, Michael Myers, an independent candidate for Governor of South Dakota, won a federal court order that lets him replace his Lieutenant Governor running mate. South Dakota elects Governor and Lieutenant Governor on a joint ticket, and Myers’ petition included the name of his original running mate. She was forced to resign from the ticket because of a family emergency, and Myers chose a new running mate. But the Secretary of State had refused to allow the switch. Myers v Gant, 4:14cv-4121.

This is only the third court decision which says that if states let parties substitute a new nominee, then those states must allow independent candieates the same freedom. Myers v Gant, 4:14cv-4121. The other two constitutional victories were won in Florida in 1980, and Virginia in 1989. The First Circuit ruled against substitution in a Massachusetts 2010 decision, Barr v Galvin.

Wyoming: On August 4, the state told a federal court that it will not attempt to defend its law that won’t let individuals give campaign contributions to candidates nominated by petition, or in a minor party nominating convention, until August of the election year. Wills v Maxfield, 14-cv-126. The case had been filed by an individual who wanted to donate to the Constitution Party nominee for Secretary of State early in the year. The law lets individuals donate to candidates running in primaries as early as they wish.

On August 22, California Governor Jerry Brown signed AB 2233. It lowers signatures in lieu of filing fee in special elections. Candidates who don’t pay the fee can get on the ballot in regular elections if they submit petitions (10,000 for statewide office, 3,000 for U.S. House and State Senate, and 1,500 for Assembly). In regular elections, the petitioning period is two months, but in special elections, the period is much shorter, The bill makes the number of signatures in special elections proportional to the length of the petitioning period. Another bill, AB 2351, which eases the definition of "party", passed the State Senate on August 25, but it has to return to the Assembly for concurrence in an amendment.

On August 12, a Michigan state court invalidated a 2012 state regulation that says when an individual signs a ballot access petition twice, neither signature counts. As a result, a Mayoral recall petition has enough valid signatures. In re City of Benton Harbor Mayoral Recall Election, Berrien County 2014-0117.

On August 22, the Sixth Circuit issued an opinion in Green Party of Tennessee v Hargett, 13-5975. The issues are whether the state can require newly-qualifying parties to submit approximately 40,000 valid signatures to appear on the general election ballot, and whether the state can automatically put the two major parties first on the ballot.

The opinion does not decide either issue. Instead, it sends the case back to the U.S. District Court for more fact-finding. The U.S. District Court had invalidated both laws. The plaintiffs are the Green Party and the Constitution Party.

The opinion says that evidence from states other than Tennessee will be permitted. The decision does hint that the state’s rationale for requiring so many signatures (2.5% of the last gubernatorial vote) doesn’t seem very convincing. The state says if the petition weren’t so difficult, voter confusion would result. However, as the opinion notes, Tennessee lets independent candidates on the ballot for any office with only 25 signatures (any registered voter may sign). No filing fee is required. Obviously, unqualified parties always qualify their nominees as independent candidates, because that is so easy. No group has ever complied with the 2.5% petition (although back in 1968, when the petition was 5%, the George Wallace campaign complied with the law to get his American Party on the ballot).

The problem with minor party candidates using the independent candidate procedure is that the party labels don’t appear on the ballot. The decision says, "It is a puzzling proposition that voters should be less confused by a ballot listing numerous candidates without a party designation than by a similar ballot including party designations; the latter, at least, contains information helpful to distinguishing among lesser-known candidates." (italics are in the original).

On August 21, U.S. District Court Judge John J. Tharp, Jr., issued an opinion in Summers v Smart, n.d., 1:14cv-5398, the ballot access case filed July 14 by the Green Party.

The opinion declines to put the Green Party statewide candidates on the Illinois ballot, but suggests that two laws that the party complained about, but which it complied with, are void. The state requires 25,000 valid signatures for statewide office, requires each petition sheet to be notarized, and requires the group to nominate a full slate of candidates. The opinion suggests that the latter two laws are likely unconstitutional, but because the number of signatures is constitutional, the opinion says there is no basis for putting the candidates on the ballot, because they did not obtain 25,000 valid signatures.

The opinion is scathing about the state’s rationale for requiring newly-qualifying parties to submit a full slate of candidates. The state says the law is needed to demonstrate that the slate has voter support. The Opinion says, "The State’s justifications for the rule are flimsy and bereft of logic. The requirement of showing a ‘modicum of support’ is already served by the signature requirement; adding more candidates to the mix does not show that more support exists among the electorate (surely there is no material distinction between a party with 25,000 supporters and one with 25,007 including the candidates)."

Concerning the law that requires each sheet to be notarized, the decision says, "The notarization requirement clearly places at least some logistical burden on new parties – particularly with the baffling requirement that each sheet of ten signatures be separately certified and notarized even when collected by the same circulator – which are disproportionately affected by it, and the State’s argument that the per-page notarization requirement prevents fraud on the petitions lacks evidence and, more importantly, logic."

On November 4, Oregon voters will vote on Measure 90, to implement a top-two election system in which all candidates run in the May primary on a single ballot, and then only the two candidates who place first or second can run in November.

On August 20, the Oregon Citizens Initiative Review voted 14-5 that Measure 90 should not pass. The Citizens Initiative Review was implemented in 2011 by the legislature. It sets up a procedure by which 5,000 voters chosen at random are invited to attend a three day meeting on a particular initiative, and to listen to proponents and opponents. From the ranks of these 5,000 voters who desire to do this, 20 are chosen in another random procedure, which is set up to guarantee that the final 20 will mirror the state in relation to age, sex, ethnic background, region, and income level.

The panel for Measure 90 met August 17-20 in Salem. Their identities are not revealed. The panel found some benefit in a top-two system, but felt the harm done outweighs the good. The harm is that voters have sharply reduced choice in November. The panel also cited the fact that if the measure passes, two particular ballot-qualified parties, the Constitution Party and the Progressive Party, will likely cease to be qualified, because the state’s lenient vote test for party retention, a vote of 1% for any statewide race, will no longer exist, because under top-two, parties don’t have nominees. The alternate registration test, one-half of 1%, would still exist, but those two parties don’t meet that test.

Proponents of Measure 90 have already raised over $1,000,000, mostly from wealthy business interests.

Noonmeasure90.org is the web page for opponents. Proponents’ of the measure don’t seem to have a web page yet, although there is a web page, unifiedprimary, for another top-two measure that failed to qualify.

A Superior Court in Mercer County, New Jersey, will hear oral arguments in D-R Organization of New Jersey v Guadagno, 2-1829-14, on September 10, at 11 a.m. The issue is whether the Democratic and Republican Parties should lose their column headings on the November 4, 2014 ballot.

New Jersey has the nation’s most discriminatory ballot format. The Democratic Party nominees are in one column, with the words "Democratic" at the top. Republican nominees are in a column labeled "Republican." Every other candidate is in a column (or several columns) headed "Nomination by Petition." Each county designs its own ballot, but the description above applies to the ballot of all but two or three counties.

A peculiar law, section 19:5-1, says that parties that don’t have a primary turnout of at least 10% of the last general election vote cast for member of the lower house of the Assembly cannot have a party column. At the June 2014 primary, only 240,749 voters voted in the Democratic primary and only 175,316 voted in the Republican primary. The last time the state voted for Assembly was in November 2013, when 3,721,973 votes were cast for Assembly. The turnout was approximately 2,200,000 voters; each voter may vote for two candidates for Assembly, and each party may run two nominees.

The only other state that has a primary vote test to determine a party’s rights in the November election is North Dakota, where candidates in a primary must receive at least 300 votes (if running for statewide office) or 1% of the population (including children and aliens) if running for the legislature. States that formerly had primary vote tests for parties, or their candidates, are Oklahoma, Wisconsin, Washington, and Minnesota, but they have been repealed. Minnesota repealed its restriction in 2005, after the State Supreme Court invalidated it in 2004 in a lawsuit filed by the Independence Party.

At the court hearing on September 10, election officials are ordered to explain why the court shouldn’t declare "that with the correct application of the 10% conditional caveat threshold in N.J.S.A. 19:5-1, that neither defendant Republican Party nor defendant Democratic Party is entitled to preferential ballot placement or a ‘separate party column.’".

They must also explain why the Court should not find that "in calculating the 10% threshold the election official defendants may only count each voter who appeared and participated in the June 3, 2014 Regular Primary Election ‘once’ or as ‘1’ toward the numeric threshold.

The election officials are expected to argue that the law should be interpreted not to count voters in a primary, but the number of votes cast for all offices within the primary. The exact language of the law is "No political party which fails to poll at any primary election for a general election at least 10% of the votes cast in the State for members of the General Assembly at the last preceding general election, held for members of the General Assembly, shall be entitled to have a party column on the official ballot."

On August 7, U.S. District Court Judge Martha Vazquez refused to put independent candidate James Parker on the ballot as a candidate for Public Education Commission, district four. As a result, the only candidate on the ballot for that office will be a Democrat. The plaintiff is the incumbent, but now he can’t run for re-election. Parker v Duran, 14-cv-617.

The basis for Parker’s lawsuit is that New Mexico requires independent candidates to submit a petition of 3% of the last gubernatorial vote, but only requires nominees of minor parties to submit a petition of 1%. The decision ignores precedents from Florida, Alabama, and North Carolina, which struck down laws requiring independent candidates to collect more signatures than minor party candidates.

Alabama: the Eleventh Circuit will hear oral argument in Stein v Bennett, 13-15556, the week of November 17. This is the case in which the Constitution, Green, and Libertarian Parties challenge the March petition deadline for newly-qualifying parties in presidential election years.

Arkansas: on August 4, U.S. District Court Judge James M. Moody, Jr., denied the state’s motion to dismiss the lawsuit Moore v Martin, which challenges the March petition deadline for non-presidential independent candidate petitions.

California: on August 8, the State Court of Appeals allowed the state Green Party to file an amicus brief in Rubin v Bowen, the case that challenges the top-two system. The intervenors who support top-two, Californians for an Open Primary, had tried to persuade the court not to allow the brief to be filed, on the grounds that the Alameda Green Party is already a plaintiff and there is no difference between the state party and the county party.

New Jersey: on August 14, a U.S. District Court ruled that nothing in the Constitution prevents states from spending money on party primaries in which only party members may vote. Balsam v Guadagno, 14-1388.

South Dakota: on August 25, the Libertarian Party filed a federal lawsuit to get its Public Service Commissioner nominee, Ryan Gaddy, on the ballot. The Secretary of State removed him because the law says party nominees must be party members. Gaddy registered into the Libertarian Party on the day he was nominated, but the change hadn’t been processed yet. Libertarian Party of S.D. v Gant,14-cv-4132.

Virgin Islands: on August 1, the Third Circuit put an independent gubernatorial candidate on the ballot. The U.S. District Court had removed the candidate, because her Lieutenant Governor running mate is a registered Republican, but the law does not say explicitly that independent candidates must not be party members. Coffelt v Fawkes, 14-3280.

	Demo.	Rep.	Lib’t.	Constitn	Green	Am Elect	Indp. Party	other
Alabama	5,885	7,097	– –	– –	– –	– –	– –	– –
Arizona	9,542	3,892	852	– –	165	759	– –	– –
Iowa	47,114	35,347	– –	– –	– –	– –	– –	– –
Kentucky	84,950	86,470	– –	– –	– –	– –	– –	– –
Minn.	34,822	16,882	– –	– –	– –	– –	4,131	735
N. Mex.	4,444	2,398	346	30	274	– –	– –	198
Ohio	99,292	99,292	– –	– –	– –	– –	– –	– –
Oregon	7,650	4,401	882	229	1,389	– –	765	1,872
Rhode I.	17,538	10,725	– –	– –	– –	– –	– –	500
Utah	33,134	47,724	5,338	2,782	8	58	– –	– –
Virginia	24,782	9,814	– –	– –	– –	– –	– –	– –
TOTAL	369,153	324,042	7,418	3,041	1,836	817	4,896	3,175

The states above let income-tax payers send a contribution to the party of the taxpayer’s choice. The chart above lists the amounts received by each party. Ohio does not let taxpayers decide which party to help, and only lets taxpayers help parties that polled 20% in the last election. The other states let the taxpayer decide which party to help. Entries in the "Other" column are: Minnesota, Grassroots; New Mexico, Independent American; Oregon $1,268 Working Families and $504 Progressive; Rhode Island, Moderate. "Indp. Party" means Independent Party in Oregon and Independence Party in Minnesota.

YEAR	Democrat	Republican	Green	Lib’t.	Ref/AE	Constit.	Other
2000	941,463	822,671	31,864	13,024	5,054	19,209	71,824
2001	680,608	611,065	12,184	8,173	755	2,295	46,232
2002	928,716	892,438	84,120	7,289	749	2,886	97,559
2003	1,181,312	1,126,585	20,665	7,859	46	51	9,975
2004	828,136	786,190	16,309	8,446	324	1,409	8,822
2005	750,461	714,238	18,100	5,546	34	2,442	25,887
2006	915,945	806,193	50,434	7,282	– –	5,847	45,355
2007	1,050,593	850,580	15,716	5,839	– –	3,503	15,627
2008	1,520,746	1,127,478	8,324	5,034	– –	5,938	5,219
2009	978,325	718,165	7,642	45,889	– –	4,520	4,970
2010	830,562	616,027	5,257	11,115	– –	3,617	5,630
2011	850,490	603,022	6,560	53,133	– –	4,367	11,766
2012	1,883,507	1,245,403	7,862	101,253	– –	2,458	8,733
2013	740,897	545,527	4,041	22,438	11,516	2,816	21,430
2014	369,153	324,042	1,836	7,418	817	3,041	3,175

North Carolina abolished the check-off effective 2014, which explains why the national totals for the Democratic, Republican and Libertarian Parties declined. "Ref/AE" means the Reform Party for 2000-2005 and Americans Elect for 2013-2014.

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	*too late	*already on	*too late	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	*too late	Jan. 8	July 10
Conn.	no procedure	#7,500	*too late	already on	*too late	already on	– – –	Aug. 6
Del.	(reg) 637	6,364	already on	already on	*too late	*too late	Aug. 19	July 15
D.C.	no procedure	(est.) #3,900	already on	already on	*too late	*too late	– – –	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	*too late	*too late	*too late	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	*too late	already on	*too late	Aug. 30	March 14
Illinois	no procedure	#25,000	*already on	*too late	*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	*already on	*too late	*too late	*too late	– – –	Aug. 15
Kansas	16,776	5,000	already on	*too late	*too late	*too late	June 2	Aug. 4
Ky.	no procedure	#5,000	*already on	*too late	*too late	*too late	– – –	Aug. 12
La.	(reg) 1,000	pay fee	already on	already on	*too late	*too late	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	*too late	*too late	Aug. 4	Aug. 4
Mass.	(reg) 42,391	#10,000	too late	*already on	*too late	*too late	Nov. 5, 13	July 29
Mich.	32,261	30,000	already on	already on	already on	too late	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	*too late	already on	*too late	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	*too late	*too late	*too late	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	*too late	*too late	*too late	*too late	Aug. 6	Aug. 6
N.J.	no procedure	#800	already on	*too late	*too late	*too late	– – –	June 3
N. M.	3,009	18,053	already on	already on	already on	*too late	June 24	June 24
N.Y.	no procedure	#15,000	*finished	already on	*too late	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	*too late	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	*too late	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	*already on	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	*too late	already on	*too late	June 1	Aug. 25
TOTAL STATES ON			43*	24*	18*	5	“	`

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

In two Alabama counties, both major parties were late to certify the names of their nominees for partisan county office. The deadline was July 30. The Secretary of State says it is up to the Probate Judges in Jackson County and Marshall County to decide what to do about this. Those Probate Judges still have not decided whether to omit the nominees from the ballot, but must decide by mid-September.

On August 9, Hawaii held open primaries for the Democratic, Republican, Independent, Libertarian, and Green Parties. Governor Neil Abercrombie, the incumbent Democrat running for re-election, was defeated in his party’s open primary.

The Hawaii Democratic Party has a lawsuit pending in the Ninth Circuit, seeking to close its primary so that only party members can vote in its primary. Governor Abercrombie had spoken out against his own party’s lawsuit.

The only two qualified minor parties in Connecticut for the office of Governor are the Working Families Party and the Independent Party. The Working Families Party has nominated the Democratic nominee, and the Independent Party has nominated the Republican nominee, so each of the two major party nominees will be on the ballot twice, and voters can choose which party label to support. The only other gubernatorial candidate on the ballot will be an independent candidate, Joe Visconti. His ballot label will be "petitioning candidate". Another candidate, Jonathan Pelto, whose label would have been "Education and Democracy" appears not to have enough valid signatures.

A new party, the Tax Wall Street Party, was launched recently, and hoped to get on the ballot in Nebraska. It submitted a petition, but the petition failed because it did not have enough signers in U.S. House District 3, which consists of the western and central end of the state. Nebraska requires that the petition for party status must include approximately 1,600 signatures from each of the state’s three districts. If the party had got on, it would have run Dan Buhrdorf for U.S. Senate.

On August 11, Tennessee State Senator Jim Summerville said he has left the Republican Party and become an independent. He had been defeated for re-election in the Republican primary held on August 7.

On August 19, Alaska held primaries for the Republican, Democratic, Libertarian, and Alaskan Independence Parties. The latter two parties had contested primaries for U.S. Senate. For the Libertarians, the results were: Thom M. Walker 2,588; Mark S. Fish 1,038; Scott Kohlhaas 560. Afterwards, newspapers speculated that Walker won the primary, even though he had no visible campaign, because voters confused him with Bill Walker, a prominent independent candidate for Governor whose name was not on any party’s primary ballot.

The Alaskan Independence primary results for Senate were: Vic Kohring 2,090; Zachary Kile 1,483. Alaska’s two qualified minor parties nominate with a blanket primary, in conjunction with the Democratic Party. The candidates from all three parties are on a single primary ballot, and any voter may choose that ballot. Republicans have their own primary ballot, and only registered Republicans and independents can choose that ballot.