MINOR PARTY AND INDEPENDENT VOTE FOR TOP OFFICE LIKELY TO BE HIGHEST MID-TERM RESULT SINCE 1930

Polls show that the national vote for minor party and independent candidates for the top office on the ballot is likely to exceed 6%. If the polls are correct, 2014 will be the best year for minor party and independent candidates in a mid-term year, for the top office, since 1930, and perhaps 1918.

Polls have shown that one particular minor party or independent candidate, or several of them together, for the top office, will be as high as 7% or more in Alaska, Arizona, Colorado, Connecticut, the District of Columbia, Florida, Hawaii, Idaho, Illinois, Maine, New York, North Carolina, Rhode Island, South Carolina, South Dakota, and Vermont. There have been no polls for the top offices in some states, such as Secretary of State in Indiana, Auditor in Missouri, and Attorney General in Utah, but minor party and independent candidates are likely to receive high percentages in those races.

"Top office" is deemed to be Governor, in the states that elect Governors in 2014. In other states, U.S. Senate is deemed to be "top office." For the handful of states with neither office up, top office is the office that is actually at the top of the ballot, such as Secretary of State or Attorney General.

The national percentage will be artificially lowered by six states in which there is no minor party or independent candidate on the ballot for the top office: Alabama, California, New Hampshire, New Mexico, Pennsylvania, and Washington.

In 2010, the eight states with no "other" candidate for the top office were Alabama, Kentucky, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, and Washington. States with top-two systems, so far, create a Democratic-Republican monopoly for the top office.

Percentages of the vote for the "other" candidates for the top office in past mid-term years are:

2010	5.4%
2006	5.0%
2002	5.3%
1998	4.9%
1994	4.5%
1990	4.6%
1986	3.6%
1982	1.8%
1978	2.4%
1974	2.4%
1970	3.4%
1966	3.2%
1962	1.1%
1958	.9%
1954	.6%
1950	1.1%
1946	1.4%
1942	4.8%
1938	3.8%
1934	5.6%
1930	6.1%
1926	4.5%
1922	4.2%
1918	6.8%
1914	16.3%

National news media do not generally inform readers about the share of the vote that goes to "other" candidates for the top offices in mid-term years, so B.A.N. readers who have media contacts may wish to disseminate this data. Of course the data will be more meaningful after the November 4 election returns are known.

Kansas: on October 1, a state trial court ruled that if the Democratic Party doesn’t wish to run anyone for U.S. Senate (or any office), the state has no right to interfere. Orel v Kansas Democratic Party, Shawnee Co., 2014-cv-958.

The plaintiff, a Democratic voter, sued the party because its nominee for U.S. Senate withdrew and the party didn’t replace him with another candidate. He argues that he has a right to vote for a Democrat in the general election, and he interprets the law to mean that the party must replace a withdrawn nominee. The court interpreted the law differently, and said in any event, states may not require parties to nominate candidates if they don’t wish to. Democrats don’t want a nominee because the party is backing independent candidate Greg Orman.

Nebraska: on September 17, a state trial court upheld the Secretary of State’s decision to let the Republican Party nominee for Lieutenant Governor withdraw, and to replace him with a new nominee. Elworth v Gale, Lancaster Co., C114-3204. State law says withdrawals must be made by September 1, but the party made the change on September 15.

On October 10, the Massachusetts Supreme Court ruled that stand-alone stores must allow petitioning in front of those stores, even if it is private property. Glovsky v Roche Brothers Supermarkets, SJC-11434. The same court had ruled in 1983 that shopping centers must also allow petitioning.

This year, 46 states are holding elections for at least one of these offices: Governor, U.S. Senator, or U.S. House-at-large. The states without such offices up this year are Indiana, Missouri, Utah, and Washington.

Of those 46, there is at least one independent or minor party candidate for at least one of those offices on the ballot in 41 states. The five without such "other" candidates are Alabama, California, New Hampshire, New Mexico, and Pennsylvania.

From those 41 states, debates with both the Republican and Democrat, for at least one of those three offices, were held in 38 states. The states in which no debates with both major party nominees were held are Mississippi, Nevada, and Ohio. In each of those states, it was the Republican who refused to debate.

Among those 38 states, at least one minor party or independent candidate debated both the major party opponents in 22 states. Below is a list of those 22 states, and a list of which non-major party candidates participated:

Alaska: on October 1, the gubernatorial nominees of the Republican and Libertarian Parties, and independent candidate Bill Walker, debated. No Democrat is running.

Arizona: on September 29, the gubernatorial nominees of the Republican, Democratic, Libertarian, and Americans Elect Parties debated.

Arkansas: on October 13, the nominees for U.S. Senate of the Democratic, Republican, Green and Libertarian Parties debated.

Colorado: on October 14, all six gubernatorial candidates who are on the ballot participated in a joint forum. They are the nominees of the Democratic, Republican, Libertarian and Green Parties, and the two independent candidates.

Connecticut: on October 16, the three gubernatorial candidates on the ballot debated. They are the nominees of the Democratic and Republican Party and the independent.

Georgia: on October 7, the nominees of the Republican, Democratic, and Libertarian Parties debated. One debate was for the U.S. Senate candidates and another was for the gubernatorial candidates. Also, on October 19, another three-party gubernatorial debate was held.

Hawaii: on October 8, the Democrat, Republican, Libertarian and Independent Party gubernatorial nominees debated. On October 19, the two major party and Independent Party nominees debated again.

Idaho: the October 3, four gubernatorial candidates debated. They are the Republican, Democratic, and Libertarian nominees, and independent candidate Pro-Life.

Kansas: the September 19, the gubernatorial nominees of the Republican, Democratic, and Libertarian Parties debated. On October 15, the Republican nominee for U.S. Senate debated his independent opponent.

Maine: on October 8 and again on October 15, the major party nominees debated each other and the independent candidate, Eliot Cutler.

Massachusetts: the October 7 gubernatorial debate included all five candidates, the Democrat, Republican, United Independent Party nominees, and the two independent candidates, Scott Lively and Jeff McCormick.

Minnesota: the October 1 and October 8 gubernatorial debates included the nominees of the Democratic, Republican, and Independence Parties.

Montana: on October 19, the Republican, Democrat and Libertarian for U.S. House-at-large debated.

Nebraska: on September 15, all four U.S. Senate candidates debated. They are the Republican and Democratic nominees, and independents Jim Jenkins and Todd Watson.

New York: the October 22 gubernatorial debate included the Democratic, Republican, Green and Libertarian nominees.

North Carolina: the October 9 Senate debate included the nominees of the Democratic, Republican and Libertarian Parties.

North Dakota: on October 15, the U.S. House-at-large nominees of the Republican, Democratic and Libertarian Parties debated.

Rhode Island: the October 21 gubernatorial debate included nominees of the Democratic, Republican and Moderate Parties.

South Carolina: the October 14 gubernatorial debate included the nominees of the Republican, Democratic, Libertarian, and United Citizens Parties, and independent Tom Ervin.

South Dakota: the October 22 gubernatorial candidate included the two major party nominees and the independent candidate, Mike Myers. The October 13 U.S. Senate debate included both major party nominees and the two independent candidates, Larry Pressler and Gordon Howie.

Vermont: the September 23 gubernatorial debate included the nominees of the Democratic, Republican, Libertarian, and Liberty Union Parties. The October 8 gubernatorial debate included the Democratic, Republican, and Liberty Union nominees.

Wyoming: the October 9 and October 16 gubernatorial debates had the Republican, Democrat, Libertarian, and independent Don Wills. The October 13 debate for U.S. Senate included the Republican, Democratic, Libertarian nominees and independent Curt Gottshall.

Major party debates for Governor, Senator, or House-at-large in Delaware, Florida, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan, New Jersey, Oklahoma, Oregon, Tennessee, Texas, Virginia, West Virginia, and Wisconsin were all exclusionary. However, Delaware and Florida had inclusive debates for Attorney General.

In Ohio, the Democratic gubernatorial nominee debated the Green nominee on October 22.

In West Virginia, the Democratic Senate nominee debated her Green, Libertarian, and Constitution Party opponents on October 17. There was an earlier Senate debate between the Democrat and Republican.

Alabama: U.S. District Court Judge Myron Thompson will hear Hall v Bennett in Montgomery on November 13 at 10 a.m. This is the case over whether Alabama must either reduce the number of signatures, or give more time, to independent candidates in special elections, on the grounds that the petitioning period in special elections is so much shorter than in regular elections.

Arizona: on October 2, the U.S. Supreme Court agreed to hear Arizona State Legislature v Arizona Independent Redistricting Commission, 13-1314. This issue is whether Article One of the U.S. Constitution requires that only state legislatures may draw U.S. House district boundaries. In Arizona, an independent commission draws the boundaries.

Arkansas: on October 15, the State Supreme Court unanimously ruled that the requirement that voters show certain types of government photo-ID at the polls violates the state Constitution. Martin v Kohls, cv14-462. The lower court had come to the same conclusion.

Florida: on October 14, U.S. District Court Judge James I. Cohn refused to issue an order letting the Libertarian nominee for Governor, Adrian Wyllie, participate in the October 15 debate. Wyllie for Governor Campaign v Leadership Florida Statewide Community Foundation, s.d., 0:14cv-62322. Some polls have shown Wyllie at 14%, and the debate organizers had barred him because they had set a 15% standard. Wyllie charged that the standard had been raised, and that earlier it had been 12%, but the judge found the earlier 12% had not been intended to apply to the October debate, but to an earlier forum.

Florida (2): on October 2, the U.S. Supreme Court agreed to hear Williams-Yulee v Fla. Bar, 13-1499. The issue is a rule that forbids candidates for judge from asking for donations. The plaintiff had sent a mass e-mail, asking for donations, for which she was punished. The Florida Supreme Court had upheld the rule.

Kentucky: on October 14, U.S. District Court Judge William Bertelsman struck down a law forbidding any electioneering within 300 feet of the entrance to a polling place, on election day. Russell v Grimes, e.d., 14cv-112. A few days later, the Sixth Circuit stayed the decision, as applied to non-private property. The U.S. Supreme Court had already upheld 100 foot "no-politics" zones in 1992.

Kentucky (2): on October 12, U.S. District Court Judge Gregory Van Tatenhove ruled that public TV may sponsor debates and invite only those who have a "realistic chance" to win. Libertarian National Committee v Holiday, e.d., 3:14cv-63. Therefore, Libertarian U.S. Senate nominee David Patterson may not participate in a debate sponsored by Kentucky’s public television network. The decision appears to conflict with the U.S. Supreme Court 1998 decision Arkansas Educational TV v Forbes, 523 U.S. 666, which said that when government sponsors a candidate debate, all candidates with a genuine campaign must be invited. Patterson has a strong campaign and has been consistently at 5% in polls.

Ohio: on October 17, U.S. District Court Judge Michael Watson again declined to put the Libertarian nominee for Governor on the ballot. Libt. Party of Ohio v Husted, s.d. 2:13cv-953. This was after a trial had demonstrated that Republican officials had orchestrated a challenge to the primary petitions of those particular Libertarian candidates. However, the decision hints that the ongoing part of the case that challenges the constitutionality of Ohio’s definition of "political party" might result in striking down that definition. Ohio keeps a party on the ballot depending on its vote for Governor, and no other office, in midterm years. The Libertarians have candidates on the ballot for Secretary of State and Auditor who are likely to poll sizeable votes. The question in this lawsuit in the future will be whether a party that shows a modicum of voter support for some statewide offices, but is unable to show it for Governor due to the exclusion of the gubernatorial candidate, may remain qualified.

Tennessee: on October 3, U.S. District Court Judge William J. Haynes declined to order the state to print "Libertarian" on the ballot next to the names of the party’s nominees. Instead, they will be on as "independent". Lewis v Goins, m.d., 3:14cv-1565. The order is only one page. Although Judge Haynes had earlier held the state’s ballot access law for parties unconstitutional, the Sixth Circuit had ruled on August 22 that the earlier case needs more evidence, a process that will take time. So, in the meantime, although the Green and Constitution Parties are safely on the 2014 ballot, no new party, such as the Libertarians, may benefit.

Texas: on October 18, a Saturday, the U.S. Supreme Court refused to disturb a ruling of the Fifth Circuit that said Texas may require voters at the polls to show certain types of government photo-ID at the November 4 election. Veasey v Perry, 14A393. The vote was 6-3. The Court did not explain why it took this action. It is very likely that the Court will accept this case eventually and issue a full opinion. The October 18 action should not be taken as a clue to how the Court will eventually rule; it seems most likely the Court felt changing the rules so soon before the 2014 election is bad policy.

Virginia: on October 8, a 3-judge U.S. District Court struck down the state’s U.S. House boundaries. Page v Va. State Bd. of Elections, e.d., 3:13cv-678. The decision has no effect on the 2014 election. The basis is that the existing plan packed so many black voters into the Third District that black influence in the adjoining districts is artificially limited. The vote was 2-1. Currently Virginia has eleven districts, eight held by Republicans and 3 by Democrats.

Wisconsin: on October 9, the U.S. Supreme Court reversed the Seventh Circuit and said the state may not require voters at the polls to show certain kinds of photo-ID. Frank v Walker, 14A352. The difference between this outcome, and the Texas outcome, is probably because of timing. The vote was 6-3. Justices Alito, Scalia and Thomas dissented.

After the 1840 election, newspapers and almanacs developed the habit of adding up the vote for president for each party in the entire nation, and publicizing the national vote totals. Ever since, journalists and others use a party’s presidential vote as a stand-in for its success, or lack of it.

But in 174 years since then, there is no commonly accepted pattern to measure the voting strength of parties in midterm years. B.A.N. hopes to suggest a new tradition, in which the votes for the office at the top of the ballot in midterm years is used.

Because three-fourths of the states elect Governors in midterm years, and since Governor, as the chief executive of a state, seems most comparable to President, it seems most rational to use the gubernatorial vote. For the fourteen states that don’t elect Governors in midterm years, Senate seems the most obvious substitute. Because only two-thirds of the states have a U.S. Senate in any particular year, there are generally a few states that have neither Governor nor U.S. Senator up, so for those states, the office actually at the top of the ballot seems most logical.

Some results of the calculation are shown in the chart below. This chart shows all seven of the instances in which any party other than the Democratic and Republican Parties polled at least 900,000 votes for the top offices. It seems probable that the Libertarian Party will poll 2,000,000 votes for the top offices on November 4, because the party has candidates for the top office in 36 states (the most ever for the party), and because polls are showing that the party’s candidates will poll unusually high votes in many states.

State	1894 PEO	1914 PRG	1998 REF	2002 LBT	2006 GR	2010 LBT	2010 CON
Alabama	83,283	3,611	– –	23,272	– –	– –	– –
Alaska	unorganized	– –	– –	1,109	593	2,682	– –
Arizona	3,006	5,206	8,371	20,356	– –	38,722	– –
Ark.	24,541	– –	11,099	– –	12,257	– –	– –
Calif.	51,304	460,495	.- –	161,203	205,995	150,895	166,312
Colo.	74,894	33,320	– –	20,547	– –	13,314	651,232
Conn.	1,546	8,030	– –	– –	9,584	– –	– –
Del.	– –	Sept. 14	– –	922	– –	2,101	– –
D.C.	unorganized	unorganized	– –	– –	4,914	– –	– –
Florida	4,469	– –	– –	– –	– –	– –	– –
Georgia	96,888	– –	– –	47,968	– –	103,194	– –
Hawaii	not in U.S.	610	– –	1,364	5,435	– –	– –
Idaho	7,121	10,583	– –	8,187	– –	5,867	– –
Illinois	60,067	203,027	50,372	73,794	361,163	34,681	– –
Indiana	29,388	108,581	– –	60,937	– –	94,330	– –
Iowa	34,907	16,796	5,606	13,048	7,728	14,398	– –
Kansas	118,329	84,060	7,830	8,097	– –	22,460	– –
Ky.	18,287	14,108	12,546	– –	– –	– –	– –
La.	8,803	8,876	– –	2,423	– –	13,957	– –
Maine	5,328	18,226	– –	– –	52,690	– –	– –
Md.	1,056	3,697	– –	11,546	15,551	14,137	8,612
Mass.	9,037	32,145	– –	23,044	43,193	– –	– –
Mich.	30,012	36,747	– –	– –	20,009	22,390	20,818
Minn.	87,890	3,553	773,713	– –	10,800	– –	– –
Miss.	12,061	– –	1,762	– –	– –	2,188	1,235
Mo.	42,467	27,609	8,780	18,345	18,383	58,663	41,309
Mont.	15,240	6,694	3,078	10,420	– –	20,691	– –
Nebr.	– –	8,655	– –	– –	– –	– –	– –
Nevada	711	– –	– –	8,104	6,753	4,672	5,049
N.H.	832	2,572	– –	13,028	– –	10,089	0
N.J.	4,155	14,197	1,906	12,558	– –	8,536	4,120
N.M.	1,835	1,695	– –	– –	– –	– –	– –
N.Y.	11,049	45,586	364,056	5,013	42,166	48,386	– –
No. C.	81,454	– –	– –	33,807	– –	55,687	– –
No. D.	9,354	4,263	3,598	– –	– –	3,890	– –
Ohio	49,495	60,904	111,468	– –	40,965	92,116	– –
Okla.	15,988	4,189	10,535	– –	– –	– –	– –
Oregon	26,723	6,129	10,144	57,760	20,030	19,048	20,475
Penn.	19,464	140,327	– –	40,923	– –	– –	– –
R.I.	223	1,256	1,848	– –	– –	– –	– –
So. C.	– –	– –	– –	– –	– –	– –	– –
So. D.	26,568	9,725	– –	1,983	– –	– –	– –
Tenn.	23,092	– –	– –	1,589	2,681	– –	– –
Texas	152,731	1,794	– –	66,717	– –	109,211	– –
Utah	– –	1,078	– –	7,133	2,512	12,871	35,937
Vt.	740	6,929	– –	938	1,936	– –	– –
Va.	10,330	210	20,293	106,055	– –	23,681	– –
Wash.	26,128	83,282	– –	48,677	21,254	– –	– –
W.Va.	3,441	8,733	– –	– –	8,565	– –	6,425
Wisc.	25,604	– –	– –	185,455	40,709	6,790	– –
Wyo.	2,176	– –	– –	3,924	– –	5,362	– –
TOTAL	1,312,017	1,489,151	1,407,005	1,100,246	955,866	1,015,009	961,524

"PEO" = Peoples; "PRG" = Progressive; "REF" = Reform; "LBT" = Libertarian; "CON" = Constitution; "GR" = Green

The chart on page five shows the number of minor party and independent candidates in each state, 2001-2002.

A set of presidential electors counts as one. When Governor and Lieutenant Governor run as a team, that counts as one. The chart covers all partisan statewide office, and Congress, and legislature. It does not include partisan judicial races, except for statewide races. It does not include state district offices other than for legislature (such as Board of Education, elected from districts in Texas). The reason for the latter two exclusions is that most states don’t have such partisan district elections, and a goal of the chart is to compare the states.

No candidate is counted twice. Fusion candidates are credited to the party in which the candidate is a member.

The chart shows the fewest minor party and independent candidates were in New Mexico, North Dakota, and Nebraska. The reason there are so few in New Mexico is that the state has very severe petition requirements for independent candidates (3%), and also New Mexico requires qualified minor parties to submit a petition of 1% for each of their nominees, except president.

North Dakota is low because minor parties can’t run candidates for the legislature unless approximately 10% to 15% of the primary voters choose to vote in a minor party primary. As a result, there have been no minor party legislative candidates with the party label since 1976. Nebraska has few minor party and independent candidates because it has a non-partisan legislature.

State	2001-2002	2003-2004	2005-2006	2007-2008	2009-2010	2011-2012	2013-2014	TOTAL
Ala	47	3	4	3	10	3	11	81
Alas	24	25	15	11	12	8	14	109
Ariz	23	26	23	23	41	27	17	180
Ark	3	8	9	21	19	25	21	106
Cal	137	104	116	65	109	12	7	550
Colo	75	47	23	30	33	99	49	356
Ct	51	111	59	36	56	25	44	382
Del	19	14	9	8	14	23	16	103
Fla	85	25	20	40	71	44	34	319
Ga	14	9	9	6	11	4	8	61
Hi	12	7	6	8	8	5	19	65
Id	49	17	17	14	16	18	18	149
Ill	26	15	12	32	35	10	8	138
Ind	53	38	17	27	49	22	25	231
Iowa	35	20	18	21	22	22	25	163
Kan	26	38	38	35	27	20	11	195
Ky	4	8	6	12	11	15	4	60
La	10	31	5	47	15	39	9	156
Me	29	35	27	20	27	29	32	199
Md	12	13	25	14	23	14	9	110
Mass	42	24	28	27	55	22	31	229
Mich	96	93	113	114	140	83	81	720
Minn	90	43	39	21	48	30	26	297
Miss	10	33	3	26	8	34	11	125
Mo	49	63	33	47	53	30	28	303
Mont	21	29	28	20	15	17	11	141
Neb	10	10	6	7	2	2	6	43
Nev	44	39	32	44	46	17	31	253
N H	18	7	6	17	11	22	10	91
N J	65	93	57	72	53	71	56	467
N M	5	8	2	6	1	10	2	34
N Y	194	76	47	38	64	73	72	564
No C	100	40	1	29	14	14	7	205
No D	4	5	4	4	7	7	3	34
Ohio	12	12	7	21	75	23	27	177
Okla	15	9	8	7	9	9	14	71
Ore	33	59	24	27	24	43	48	258
Penn	40	62	44	32	36	20	12	246
R I	20	29	8	22	50	45	32	206
So C	20	24	13	13	36	47	20	173
So D	10	10	18	14	15	7	13	87
Tenn	60	25	37	40	66	48	44	320
Tex	125	51	145	136	108	129	130	824
Utah	28	81	62	63	39	40	36	349
Vt	72	42	59	51	54	64	69	411
Va	29	23	28	32	42	31	37	222
Wash	26	52	5	11	9	14	15	132
W Va	11	8	2	9	10	17	23	80
Wis	41	35	18	24	35	24	17	194
Wyo	6	5	7	9	10	17	11	65
TOTAL	2,030	1,684	1,342	1,456	1,744	1,474	1,304	11,034

On October 7, independent candidate Megan Green was elected to the St. Louis Board of Alderman, defeating her major party opponents.

Eric Ostermeier’s blog Smart Politics has a list of all independent U.S. Senators in history. See this address. If Greg Orman wins, there will be more independent Senators at once than ever before.