CALIFORNIA EASES BALLOT ACCESS FOR MINOR PARTIES

On September 30, California Governor Jerry Brown signed AB 2351. It makes it easier for a group to qualify as a "party". It changes the registration test from 1% of the last gubernatorial vote, to .33% of total registration. Brown signed the bill on the last possible day; it had been sent to him on September 8.

For 2014, a group needed 103,004 registered members to either obtain, or keep, qualified status. Although no one can know how many voters there will be in 2016, the last tally (Sep. 2014) showed California had 17,634,876 registered voters, and .33% of that number is 58,195.

The Peace & Freedom Party will now remain ballot-qualified. At the last tally it had 77,987 registrants.

The bill also says that a party remains qualified if it polls 2% for a statewide race in the primary in midterm years. This is an alternate to the registration test. The Peace & Freedom, Libertarian, and Green Parties met this vote test in June 2014. Americans Elect did not, and has fewer than 6,000 registrants, so it will be disqualified in November 2014 unless it has an unexpected registration surge.

One impact of the change is that now North Carolina and Oklahoma, not California, require support from the largest number of voters for a group to qualify. North Carolina requires 89,366 signatures, and Oklahoma requires 66,744.

Activists in both states will be lobbying for easier access in the 2015 legislative sessions, and the fact that those two states require more signatures than any other state will be a helpful tool. If the 2015 session of the Oklahoma legislature fails to pass ballot access reform, a new lawsuit will be filed against the Oklahoma requirement, which is already vulnerable to legal challenge because the petition deadline is in March.

Before this development in California, the last time a state eased the requirements for a party to get on the ballot was in 2013, when Maine changed the law for a group to become a party from a petition of 5% of the last gubernatorial vote, to having 5,000 registrants. Before that, the last time was in 2009, when West Virginia lowered the petition from 2% of the last vote cast to 1%.

On September 26, an Alaska state trial court ruled that because the state lets political parties substitute a new Lieutenant Governor running mate, therefore the state must let an independent ticket enjoy the same flexibility. Strait v Fenumiai, 3AN-14-9199. As a result, Bill Walker, independent gubernatorial candidate, may choose Byron Mallott as his running mate. Mallott had been the Democratic nominee for Governor this year, but he had withdrawn so that he could join the independent ticket. The case will not be appealed.

The 17-page ruling, issued from the bench, says equal protection applies. The state had already agreed to let the independent ticket make a substitution, but then a Republican Party official, Steve Strait, had sued election officials to force them to revoke their permission.

This is the second such victory on substitution for independent candidates this year; a similar victory was won in August in federal court in South Dakota. Also, in 1980, independent presidential candidate John B. Anderson had won three similar cases. And in 1989 an independent candidate in Virginia had won such a ruling. The ruling is another rebuke to the First Circuit, which ruled in Barr v Galvin in 2010 that states may refuse to let petitioning tickets enjoy this flexibility.

On September 29 and 30, a trial was held in Libertarian Party of Ohio v Husted, 2:13cv-953, over whether the party’s gubernatorial ticket should be on the November ballot. A final summation from each side will be held on October 3.

The trial has revealed a corrupt process earlier this year, when a hearing officer appointed by the Secretary of State to decide whether the Libertarians should be removed from the primary ballot actually had concluded that the candidates should remain on the ballot. He issued that recommendation. Afterwards, the Secretary of State, a Republican, personally implored him to change his mind.

Also, no one ever revealed that the Hearings Officer was simultaneously representing the Secretary of State in another lawsuit.

Furthermore, the individual who paid the attorney for the man who challenged the Libertarians’ petitions is a state employee. The magistrate in this case ruled that the identity of the payer must be revealed.

Also, the challenge process to the Libertarian candidates was instituted immediately after the deadline for filing as a write-in candidate in party primaries had passed, so that Libertarians were unable to nominate anyone in their primary by write-in.

On September 25, California AB 2766 was signed into law. It repeals a requirement that candidates for County Central Committee (if they are Democrats, Republicans, or American Independent members) must sign a loyalty oath in order to get on their party’s primary ballot.

On August 28, a U.S. District Court in South Dakota refused to order the Secretary of State to place Ryan Gaddy on the ballot as the Libertarian nominee for Public Utilities Commissioner. The Secretary of State refused him because records showed he was not a registered Libertarian on the day he was nominated. He had filled out a registration card joining the party shortly before he was nominated, but that was on a Saturday and elections officials did not receive the form until three days later.

The U.S. Supreme Court said in 1986 in Tashjian v Republican Party of Connecticut that the First Amendment protects a party’s ability to nominate a non-member. The judge ruled from the bench that other U.S. Supreme Court rulings, in 1974 and 1997, do not agree with the 1986 Supreme Court ruling, so he chose not to follow the 1986 ruling. He has not yet put his decision in writing.

He said from the bench that preventing a party from nominating a non-member is a "slight" burden. This statement is contradicted by history: major parties sometimes nominate non-members in important elections. It is likely that when the Republican Party nominated Dwight Eisenhower for President in July 1952, he was a registered independent in New York. A researcher is trying to find proof.

Also, in 2008, John McCain briefly determined that he would ask the Republican Party to nominate Joseph Lieberman for Vice-President, even though Lieberman was a registered Democrat. In 1864, Republicans nominated Andrew Johnson, a Democrat, for Vice-President. In 1840 the Whig Party nominated John Tyler, a Democrat, for Vice-President.

The last time a minor party nominee for Congress (who was not a major party nominee) was elected was in 1970, when the New York Conservative Party chose James Buckley for U.S. Senate. He was a registered Republican when nominated.

On September 5, a Michigan state appeals court reversed a decision of the trial court, and said if anyone signs a petition twice, neither signature counts. As a result, a particular recall election petition failed to have enough valid signatures. Sometimes people forget which petition they have signed, and if asked twice, sign both times. The Appeals Court did not explain why it reversed the trial court, but said it would do so later. In re City of Benton Harbor Mayoral Recall Election. On September 18, the State Supreme Court refused to intervene.

On September 18, an Illinois state trial court ruled that the statewide Illinois Libertarian slate should remain on the ballot. The Elections Board had already ruled that the party’s petition had 25,000 valid signatures, but then the individuals who had challenged the petition sued elections officials, claiming that the petition is not valid. Atsaves v State Officers Electoral Board, 14-mr-1025, Sangamon County.

The challengers presented witnesses who said the individual who solicited their signature looks different than the individual who signed the petition as the circulator. The Court found that the Electoral Board had already heard this evidence, and ruled that the Board had not erred.

This is the third midterm year in a row in which major party figures have challenged minor party statewide petitions in Illinois. The Greens were challenged in 2006. Libertarians were challenged in 2010. As in 2014, these challenges were rejected and the party appeared on the ballot. The only year in the last thirty years in which a party was told it had at least 25,000 valid signatures, and still was removed, was in 1998, when the Libertarians were removed, because the Board felt that all the work of certain petitioners should be invalidated.

On August 21, the New York Supreme Court, Appellate Div., in Albany ruled that a petition is valid if the candidate pre-printed a particular town on the petition form. Obviously the candidate intended to circulate the petition only in that town. Having that information pre-printed saves time for circulators. Collins v New York State Bd. of Elections, 519457. The decision says nothing in the law prohibits the practice.

On September 20, independent U.S. House candidate Scott Smith was put on the ballot by the State Supreme Court, Orange County. Smith v Blanchette, 6925-2014. The Board had invalidated the sheets the candidate had circulated, because the address he showed for himself on the petitions was different than that at which he was registered. The petition address was correct.

The Arizona Republican Party has appointed a committee to study whether it should seek to obtain a closed primary for itself. Current Arizona law requires all parties to let independents vote in their primaries.

Alabama: the Eleventh Circuit will hear Stein v Bennett on November 21. This is the case filed by the Constitution, Green and Libertarian Parties in 2012 against the March petition deadline, as applied to presidential candidates. The lower court had upheld the deadline, even though the 11^th circuit in 1991 had struck down Alabama’s April deadline.

Michigan: on September 24, U.S. District Court Judge Bernard Friedman refused to order the state to print "independent" on the ballot instead of "no party affiliation". An independent candidate for U.S. House had sued, saying his campaign is injured because the state won’t let him refer to himself as an independent on the ballot. Swartout v Johnson, e.d., 2:14cv-12768.

Georgia: on August 25, a state court kept Libertarian State House nominee Jeff Amason off the ballot. He had enough valid signatures, but his wife, who circulated a few sheets, had done most of the notarization work. Georgia rules don’t let notaries circulate any petitions. Amason pointed out that his campaign is incorporated, and his wife is a corporate officer, and the law lets corporate officers act as notaries for corporate business. But the judge ruled that his lawsuit is flawed because Amason sued the Elections Director and he should have sued the Secretary of State. As a result, Georgia has no minor party candidates for the legislature.

Kentucky: on September 28, the Libertarian Party and its nominee for U.S. Senate, David Patterson, filed a lawsuit against Kentucky Educational TV, which is hosting a debate to which only the Democratic and Republican nominees are invited. The original rule for invitation required 5% in a poll. After Patterson met that standard, the station upped it. Libertarian National Committee v Holliday, e.d., 3:14cv-63.

Montana: on September 8, the Ravalli County Republican Party filed a federal lawsuit, seeking a closed primary for itself. Montana has open primaries and the state does not register voters by party. The county party charges that Democrats voted in the Republican primary this year and tipped the balance in a very close primary for state legislature in that county. Ravalli County Republican Central Committee v McCulloch, 6:14-cv-58. The case was assigned to Judge Brian Morris, an Obama appointee.

New Jersey: on September 10, the Superior Court, Law Division, in Mercer County, ruled that it does not have jurisdiction to hear D-R Organization of New Jersey v Guadagno, and sent the case to the Appellate Division. This is the case over whether the Democratic and Republican Parties should lose their party column on the November 2014 ballot, because their primary vote turnout was below 10% of what the last general election turnout had been.

Ohio: on September 29, the U.S. Supreme Court ruled 5-4 that the Sixth Circuit decision of September 24, requiring Ohio to continue to let voters cast early votes during the first week of October, and the Sunday and Monday before election day, and evenings on other days, should be set aside, until the Supreme Court has a chance to think about the case. Husted v Ohio State Conference of the NAACP, 14A336.

On September 11, Republican candiate Pete Peterson, one of two candidates for Secretary of State, said at a forum with his opponent that he favors restoring write-in space to the November ballot for Congress and partisan state office. The other candidate, Democrat Alex Padilla, said the current system (in which only two candidates may run in November and no write-ins are permitted) is satisfactory to him.

California and Louisiana are the only states that ever put write-in space on ballots, and then removed it. Nevada, Hawaii, South Dakota, and Oklahoma, the other states with no write-in space on the November ballot, have never allowed write-ins. The California legislature unanimously repealed write-in space in 2012. Legislators did so because they were told that their 2009 law, leaving write-in space on the ballot but saying write-ins could never be counted, was legally flawed.

Election Law and Democratic Theory, by David Schultz, hard cover, 286 pages, 2014.

David Schultz is a political science professor at Hamline University, and a law professor at the University of Minnesota. He has written 26 books. This book is an appeal to judges (especially U.S. Supreme Court judges) and academics, to do the mental work of tying election law decisions and commentary to a sounder philosophical basis. This book deplores the tendency of judges and thinkers to write about election law without laying forth a philosophical basis for the rulings.

He notes that in the 1960’s and 1970’s, many election law cases from the U.S. Supreme Court did set forth basic principles about the meaning of democracy and elections, but that is no longer the case.

The book finds particular problems with court decisions on campaign finance, political party rights, gerrymandering, race, and voter identification at the polls.

He chides the Supreme Court for its confusing decision in Burdick v Takushi, which upheld Hawaii’s ban on write-ins and also said courts should uphold election law restrictions that are not "severe." As he says, whether a burden on voting rights is "severe" is impossibly vague, and leaves legislators and lower courts with no real guidance at all.

Congressman John Delaney (D-Md.) has introduced HB 5334, to require states to use a top-two system in congressional elections. The bill also says that election day in November be a federal holiday. The bill makes no attempt to set a nationaljj primary day, nor does it make state primary days holidays. The bill has two co-sponsors, Jared Polis (D-Co.) and Derek Kilmer (D-Wa.).

The chart below shows how many candidates for U.S. House each party has on the ballot, and the number of independent candidates.

Parties in the "other" column are: Az., Americans Elect; Ca., Peace & Freedom; Mi., Natural Law; Mn., Independence; N.J., D-R Party; N.Y., Working Families; Or., Independent Party; S.C., Labor; Ut., Independent American Party; Vt., Liberty Union; Va., Independent Green Party.

State	# seats	Dem.	Rep.	Lib’t.	Green	Consti.	Conser	Reform	other	indp.
Ala	7	5	6	0	0	0	0	0	0	1
Alas	1	1	1	1	0	0	0	0	0	0
Ariz	9	8	8	3	0	0	0	0	2	1
Ark	4	3	4	4	0	0	0	0	0	0
Cal	53	51	44	0	0	0	0	0	1	3
Colo	7	7	7	4	1	0	0	0	0	3
Ct	5	5	5	1	2	0	0	0	0	1
Del	1	1	1	1	1	0	0	0	0	0
D.C.	1	1	1	0	1	0	0	0	0	1
Fla	27	22	25	2	0	0	0	0	0	8
Ga	14	10	11	0	0	0	0	0	0	0
Hi	2	2	2	1	0	0	0	0	0	0
Id	2	2	2	0	0	0	0	0	0	0
Ill	18	18	18	0	2	0	0	0	0	0
Ind	9	9	9	8	0	0	0	0	0	0
Iowa	4	4	4	1	0	0	0	0	0	1
Kan	4	4	4	1	0	0	0	0	0	0
Ky	6	6	6	0	0	0	0	0	0	1
La	6	4	5	5	1	0	0	0	0	2
Maine	2	2	2	0	0	0	0	0	0	2
Md	8	8	8	2	2	0	0	0	0	0
Mass	9	9	3	0	0	0	0	0	0	1
Mich	14	14	14	12	8	3	0	0	1	3
Minn	8	8	8	0	1	0	0	0	4	0
Miss	4	4	3	2	0	0	0	4	0	4
Mo	8	8	8	8	0	1	0	0	0	0
Mont	1	1	1	1	0	0	0	0	0	0
Neb	3	3	3	1	0	0	0	0	0	0
Nev	4	4	4	3	0	3	0	0	0	2
N H	2	2	2	0	0	0	0	0	0	0
N Jer	12	12	12	2	1	0	0	0	5	17
N Mex	3	3	3	0	0	0	0	0	0	0
N York	27	26	18	0	6	0	6	0	1	3
No C	13	12	13	1	0	0	0	0	0	0
No D	1	1	1	1	0	0	0	0	0	0
Ohio	16	15	16	3	2	1	0	0	0	0
Okla	5	4	5	1	0	0	0	0	0	4
Ore	5	5	5	5	3	1	0	0	2	1
Penn	18	16	17	0	0	0	0	0	0	1
R I	2	2	2	0	0	0	0	0	0	0
So C	7	5	7	2	0	0	0	0	1	0
So D	1	1	1	0	0	0	0	0	0	0
Tenn	9	8	9	2	2	1	0	0	0	9
Tex	36	29	30	32	8	0	0	0	0	2
Utah	4	4	4	2	0	2	0	0	4	3
Vt	1	1	1	0	0	0	0	0	1	3
Va	11	9	10	7	1	0	0	0	5	3
Wash	10	9	10	0	0	0	0	0	0	0
W Va	3	3	3	1	0	0	0	0	0	1
Wis	8	8	8	1	1	0	0	0	0	1
Wyo	1	1	1	1	0	1	0	0	0	0
TOTAL	436	400	395	122	43	13	6	4	27	82

In this year’s election, the Republican Party has not nominated anyone for 20.4% of the state legislative races, and the Democratic Party has not nominated anyone for 22.9% of those races. This means that in 43.3% of the races, there is no contest between a Democrat and a Republican. See the chart below.

State	# seats	Rep.	Dem.	Lib’t.	Green	Consti	WkFam	other(1)	other(2)	indp.
Ala	140	115	83	0	0	0	0	1	0	9
Alas	54	42	48	1	0	1	0	0	0	7
Ariz	90	75	68	4	0	0	0	2	0	3
Ark	118	85	70	6	0	0	0	0	0	1
Cal	100	82	93	1	0	0	0	1	0	1
Colo	83	80	67	24	1	1	0	0	0	3
Ct	187	161	167	1	13	0	4	4	2	12
Del	51	36	44	5	1	0	0	3	0	0
Fla	140	110	87	5	1	0	0	1	0	13
Ga	236	168	115	0	0	0	0	0	0	2
Hi	64	44	64	12	2	0	0	1	0	0
Id	105	101	61	4	0	5	0	0	0	4
Ill	137	88	103	0	0	0	0	0	0	1
Ind	125	105	84	12	0	0	0	0	0	2
Iowa	125	91	97	6	1	0	0	0	0	6
Kan	125	114	87	6	0	0	0	0	0	1
Ky	119	93	87	0	0	0	0	0	0	2
Maine	186	176	171	0	13	0	0	0	0	16
Md	188	130	179	1	1	0	0	0	0	1
Mass	200	96	183	5	0	0	0	2	0	17
Mich	148	148	148	9	0	7	0	0	0	4
Minn.	134	133	126	0	2	1	0	4	0	0
Mo	180	154	115	10	0	7	0	0	0	0
Mont	126	108	123	7	0	0	0	0	0	2
Nev	53	44	44	7	0	11	0	0	0	0
NH	424	393	379	1	0	0	0	2	0	7
NM	70	47	55	0	0	0	0	0	0	2
NY	213	157	181	3	7	0	8	22	5	4
NoC	170	134	124	4	0	0	0	0	0	1
NoD	72	66	54	0	0	0	0	0	0	0
Ohio	116	109	101	8	3	0	0	0	0	7
Okla	125	106	66	0	0	0	0	0	0	5
Ore	76	58	68	22	2	3	0	2	0	0
Pa	228	165	166	3	2	0	0	0	0	6
R I	113	36	111	0	0	0	0	1	0	25
So C	124	92	62	4	2	0	0	1	1	0
So D	105	89	72	0	0	0	0	0	0	5
Tenn	116	99	61	1	2	2	0	0	0	10
Tex	165	119	101	52	8	0	0	0	0	1
Utah	89	84	75	8	0	6	0	8	0	0
Vt	180	96	137	12	0	0	0	16	3	22
Wash	123	102	101	8	0	0	0	1	0	6
W Va	117	112	101	3	6	3	0	1	0	5
Wis	116	89	89	5	0	0	0	0	0	3
Wyo	75	71	29	0	0	1	0	0	0	2
TOTAL	6031	4803	4647	260	67	48	12	73	11	218

Parties in the "other(1)" column are: Ala., Independence; Az., Americans Elect; Ca., Amer. Indp.; Ct., Independence; Del., Independent; Fl, America’s Independent Pty; Hi, Independent Pty; Ma., Pirate; Mn, Independence; NY, Conservative; Or, Independent Pty; RI, Moderate; S.C., American; Ut, Indp. Amer.; Vt, Progressive; Wa, Socialist Alternative; WV, American Freedom; Wis., Pirate.

Parties in the "other(2)" column are: Ct., Peace & Progress; N.Y. & S.C., Independence; Vt, Liberty Union.

The chart below shows totals for recent past elections:

Year	Seats	Dem.	Rep.	Minor	Indp.
2014	6,031	4,647	4,803	471	218
2012	5,984	4,720	4,859	523	246
2010	6,103	4,976	5,120	611	304
2008	5,773	4,887	4,378	501	183
2006	6,159	5,178	4,824	576	148
2004	5,795	4,645	4,703	765	160
2002	6,230	5,139	5,022	1,084	188

The chart does not count any candidate more than once. When candidates are nominated by two parties, that candidate is only credited with the party of which the candidate is a member. The chart only includes regularly-scheduled elections, not special elections. In the states with top-two election systems, if a race has two members of the same party in the election, that party is credited with having a candidate in the race; the fact that there are two candidates does not influence the calculation.

Recent polls suggest that independents Greg Orman (running for U.S. Senate in Kansas) and Bill Walker (running for Alaska Governor) are leading, although the races are close.

On September 15, Gary Sinawski died at the age of 67. He had been among a handful of dedicated ballot access attorneys who represent minor parties and independent candidates for very little payment. He had won many constitutional cases, including: (1) striking down the May Massachusetts petition deadline for minor party and independent candidates; (2) a ruling that due process does not permit Michigan to pass new ballot access barriers as late as April of the election year; (3) a ruling that a minor party presidential candidate has standing to challenge placement of major party candidates who miss the deadline; (4) that Kentucky could not require the Social Security number of each signer on the petition, and could not enforce a February petition deadline; (5) that Nevada could not require new parties and independent candidates to submit petitions by June; (6) that New York must let the newly-created Independence Party substitute a new gubernatorial nominee; (7) that South Carolina could not require new parties to have held meetings in the spring, before the party even existed; (8) that Ohio could not require new parties to submit a petition by November of the year before the election.

Sinawski had been ill, but his friends and family were relieved when he finally was released from the hospital. But he suffered a fatal heart attack two days later. He was currently representing minor parties in the Alabama challenge to the March petition deadline, and the Illinois Libertarian Party in its case against the June deadline and the full-slate law. He will be missed.

Approximately once per year, Gallup releases a poll on what share of U.S. residents believe a new major party would be beneficial. This year the percentage saying "yes" is 58%. The all-time high was in 2013, when it was 60%. The low in the last ten years was 2004, at 40%.