GEORGIA PRESIDENTIAL PETITION STRUCK DOWN
1% OF NUMBER OF REGISTERED VOTERS IS TOO HIGH

On March 17, U.S. District Court Judge Richard W. Story, a Clinton appointee, struck down Georgia’s petition requirement for independent presidential candidates, and the presidential nominees of unqualified parties. That law required the petition to be signed by voters equal to 1% of the number of registered voters as of the last year that office had been up. The 2016 requirement, 49,336 signatures, equals 1% of the number of registered voters as of October 2012. Green Party of Georgia v Kemp, 1:12cv-1822. The Constitution Party was a co-plaintiff. The decision is 80 pages.

Why Decision is Unusual

In 1971, the U.S. Supreme Court unanimously upheld Georgia’s old law, requiring independent candidates and the nominees of unqualified parties to submit a petition signed by 5% of the registered voters. Jenness v Fortson, 403 US 431. Ever since, lawsuits in federal court against a too-high number of signatures have failed, unless they were in one of two categories:

1. Petition requirements above 5% have been invalidated, every time they have been tested in court. Those decisions are from Arkansas, Illinois, and North Carolina.

2. Petition requirements that are obviously unneeded for any state purpose have been invalidated. "Obviously unneeded" means that the state had two kinds of petition requirements, and it was obvious that the higher requirement wasn’t needed, because the lower requirement was working well.

For example, twice the U.S. Supreme Court ruled that Illinois could not require petitions above 25,000 signatures for office in just part of the state.

It was obvious that a higher number of signatures wasn’t needed, because the state only required 25,000 for statewide office. Lower courts in Colorado and Iowa applied that principle to strike down laws for certain district offices.

Lower courts have invalidated the number of signatures needed for independent candidates on the grounds that the requirements were obviously too high, because that state required fewer signatures for new parties. And in Arkansas and Tennessee, the number of signatures for a new party was invalidated on the grounds that the party petition was far higher than the independent candidate petition.

A federal court in Idaho invalidated the independent presidential requirement on the grounds that it was far higher than the number of signatures for an independent for other statewide office. A federal court in Pennsylvania invalidated the number of signatures for independent candidates for statewide judicial candidates on the grounds that their requirement was much higher than the requirement for independent candidates for other statewide office.

So, in the past, it was almost impossible to win a lawsuit in federal court against a high number of signatures, unless the state made the mistake of requiring more than 5%, or unless the state made the mistake of having inconsistent requirements (though there was one exception; in 1980 the Eighth Circuit struck down North Dakota’s 3.3% petition for new parties).

The Georgia Green/Constitution Party case could not depend on either of the two methods for winning against too-high petition requirements. So, how did it win?

Using Anderson v Celebrezze Against Too-High Petitions

The recent Georgia case is the first lawsuit to win against a high number of signatures by using Anderson v Celebrezze. Anderson is a U.S. Supreme Court victory from 1983 that struck down early petition deadlines for independent and minor party presidential candidates. But Anderson has important language that extends its reach beyond just early deadlines.

It says, "In the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and Vice President are the only elected officials who represent all the voters of the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State’s requirement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be decided by voters beyond the State’s boundaries…The Ohio filing deadline places a significant state-imposed restriction on a nationwide electoral process."

The Georgia Green/Constitution decision is the first decision to depend on that language to strike down a too-high number of signatures for President. That is why the decision only relates to presidential petitions, not petitions for other office.

To show that the Georgia presidential petition was too high, the decision depends on history, and on research on crowded ballots.

The history showed that no presidential petition had succeeded in Georgia in sixteen years, when Pat Buchanan qualified as an independent in 2000. There is support for using history to invalidate too-high petition requirements in the U.S. Supreme Court decisions Storer v Brown and Mandel v Bradley.

More important to the Georgia decision was the evidence in the case, showing that in all U.S. history, when a state requires more than 5,000 signatures, the ballot will never have more than six successful petitions. This research studied the relationship between the number of signatures and the number of successful petitions in every state’s presidential election back to 1892, the first presidential election in which government-printed ballots were used. This research had never before been presented to any court.

On March 10, the Oklahoma Senate passed SB 896 by 42-1. It lowers the vote test for a group to remain ballot-qualified from 10% for the office at the top of the ticket (president in presidential years; Governor in mid-term years) to 2.5%. On March 23, it passed the House Elections & Ethics Committee unanimously. Assuming it passes the House, it must go back to the Senate for a technical amendment. The Senate version of the bill says it takes effect January 1, 2017; the House version says it takes effect November 1, 2016. If the Libertarian Party, which is the only third party on the ballot, gets at least 2.5% for President but under 10%, the earlier effective date would prevent the need to convert all the registered Libertarians to independents.

If the bill is signed into law, the only states with 10% vote tests will be Virginia and New Jersey. The only states with requirements higher than 10% are Pennsylvania (registration of 15%) and Alabama (vote of 20% for any statewide race). All other states with be at or below 5%.

On March 10, the Arizona proponents of a top-two initiative said they are abandoning efforts to get an initiative for a top-two system on the November 2016 ballot. The stated reason is that the leading financial backers of the initiative, Texans John and Laura Arnold, had withdrawn their financial support.

The Arnolds apparently were willing to continue funding the top-two initiative by itself, but the Arizona proponents had hoped to qualify two initiatives and then campaign for them together. But the Arnolds didn’t wish to fund the petition drive for the other initiative. That other initiative was to require more disclosure of independent expenditures in election campaigns.

The Arizona proponents seem to feel that they can’t win the battle for the top-two initiative without having the other initiative on the ballot as well. A top-two initiative was defeated in Arizona in November 2012, by 1,340,286 to 662,366.

It is not easy to sell a measure that restricts voter choice in November to just two choices. Also Arizona independents are already free to vote in party primaries of their choice, except they can’t vote in presidential primaries. But the initiative did not have any connection to presidential primaries. This presented proponents with a public relations problem. If their goal is give more freedom to independents to vote in primaries, why were they selling a measure that changed the already-open primary for office other than President, and doing nothing about the closed presidential primaries?

On March 18, Utah’s Governor signed SB 25, which deletes the straight-ticket device. Eight states still have them: Alabama, Indiana, Iowa, Kentucky, Oklahoma, Pennsylvania, South Carolina, and Texas.

In 2014, the Montana Republican Party filed a lawsuit to exempt itself from an open primary. Ravalli County Republican Central Committee v McCulloch, 6:14cv-58. The party argued that people who are loyal to the Democratic Party are voting in the Republican primary, to nominate candidates who are closer to Democratic Party positions. The party especially believed that unions representing teachers were organizing such activity.

The U.S. District Court refused to enjoin the open primary for the Republican Party while the lawsuit is going on. The party then asked the Ninth Circuit to relieve the party from the 2016 open primary, but on March 3 the Ninth Circuit refused injunctive relief. On March 11 the party asked the U.S. Supreme Court for relief, but it was denied on March 23. The party might still win the case, but to do that, it will need more evidence from Montana. So far the party has tried to use evidence from other states, but the federal courts in the Montana case feel that the evidence that matters is from Montana.

It seems likely that the U.S. Supreme Court took the request seriously, because it asked for a response from the state, and took an unusually long time to reject the request. Usually requests for injunctive relief from the U.S. Supreme Court are denied within a few days.

The party said if it had obtained relief, it would have either nominated by convention, or pushed for a top-two primary, or set up a procedure at the June 7 primary with separate Republican ballots and a requirement that people who want a Republican ballot sign in as Republicans.

Republicans have a majority in both houses of the legislature, but the party has been unable to pass a bill for a closed primary for itself.

Several constitutional ballot access cases are being expedited and will probably receive decisions soon:

California: the Independent Party lawsuit will be heard on April 18 in U.S. District Court in Sacramento. The party wants a court to order the Secretary of State to recognize it as a "political body". A political body is entitled to know how many registered members it has. If a political body has approximately 60,000 registered members, then it becomes ballot-qualified. The Independent Party can’t learn how many registered voters it has until the Secretary of State recognizes it as a political body. The party hopes to be included in the May 2016 registration tally, although the final tally to determine party status is the July tally.

Kentucky: all the briefs in the Libertarian Party’s lawsuit against the state’s definition of "political party" will be filed by April 7, and then the case will be ready for oral argument. Libertarian Party of Kentucky v Grimes, e.d., 3:15cv-86. Kentucky won’t permit a group to be a qualified party unless it polls 2% for President, something no party (other than the Democratic and Republican Parties) has done in Kentucky during the last 100 years, except in 1924, 1968, 1980, and 1996.

Maine: the Libertarian Party lawsuit over its qualified status will be argued on March 31 in U.S. District Court. The party needed 5,000 registered members by December 1, 2015, to be a qualified party in 2016. The state rejected approximately one-third of the cards and then said it was too late to correct the miniscule errors on those cards. The Secretary of State also refused to produce the rejected cards, requiring the party to subpoena many towns to obtain copies. The lawsuit is based on due process, and also argues that a December 1 deadline of the year before an election is far too early to be constitutional.

Utah: the State Supreme Court will hear the Republican Party’s lawsuit over how Republicans can get on its primary ballot on April 4. The case is Utah Republican Party v Herbert, 2016-77. The issue is whether the party has a right to block candidates from getting on its June 28 primary by petition. The party desires that only candidates who show support at its April 23 caucuses should be allowed on its primary ballot.

On March 1, U.S. District Court Judge Janet C. Hall, a Clinton appointee, granted an injunction letting Shawn Wilmoth circulate a presidential primary petition, even though Wilmoth doesn’t live in Connecticut. He lives in Michigan and had been hired to petition to get Rocky De La Fuente get on the Connecticut Democratic presidential primary ballot. Wilmoth v Merrill, 16-cv-223.

Judge Hall had already given the Libertarian Party injunctive relief against the state’s ban on out-of-state circulators on January 27. But it was more difficult for Wilmoth to win his case, because he isn’t a member of the Connecticut Democratic Party, and the state argued that a party has a right to block non-members from circulating petitions to get candidates on its own primary ballot. Wilmoth responded by saying that he is a Democrat in Michigan.

Connecticut is in the Second Circuit, and the Second Circuit had ruled in 2011 in Maslow v Board of Elections that a New York law, barring non-members of a party from circulating primary petitions, is constitutional.

Presumably, what made the difference in the new Connecticut case is that the petition involved a presidential primary, and voters from across the entire nation have an interest in the presidential election no matter which state they live in. The order granting injunctive relief did not go into detail. The case will receive more action in April 2016.

On February 4, the Florida Supreme Court unanimously ruled that write-in candidates in the general election are "real" candidates, and no one should assume they aren’t serious and that they can’t possibly win. Brinkmann v Francois, SC14-1899.

The case arose because Florida has closed primaries, except in instances when all the candidates who file are members of the same party and the winner of that one primary will be the only candidate in November. When that happens, the primary for that office only is open, and any registered voter can vote in the primary for that one office.

But when all the candidates who file to be in the primary are members of the same party, but a write-in candidate files for the general election, then the primary for that office is closed. Florida requires declared write-in candidates to file a declaration of write-in candidacy before the primary, so it is always possible to know if there will be a write-in candidate in the general election for that race, even before the primary.

This system provides an incentive for individuals to file as write-in candidates for the general election, even though they really don’t want to run for office. They do it so as to close a primary for a particular office.

The plaintiffs in the lawsuit wanted the courts to eliminate the write-in "loophole" from the Florida Constitution, but the Court said there is no basis to do that. A side issue in the case was whether the state can force a write-in candidate to live in the County Commission district when he or she files. The State Constitution says that candidates for County Commission only must live in the district on election day, and the State Supreme Court said the Constitution’s loose rule on residency applies to write-in candidates just as much as it applies to on-ballot candidates.

Debates: during March, the Independent Voter Project and Fairvote received permission to file amicus briefs in Level the Playing Field v Federal Election Commission, the lawsuit in U.S. District Court in Washington, D.C. that argues the Commission on Presidential Debates is breaking federal campaign finance laws when it only invites candidates who are at 15% in polls into the general election presidential debates.

Arizona: the Ninth Circuit will hear Arizona Green Party v Reagan, 14-15976, on May 11. The issue is the February petition deadline for new parties. The U.S. District Court had upheld the deadline, even though the primary isn’t until six months after the deadline, on the grounds that the Green Party hadn’t produced any evidence that the February deadline is burdensome. The judge ruled that way, even though the Green Party brought all its completed petitions to the court hearing on May 7, to show that they really had tried, but they couldn’t get it done by February.

California: on March 14, U.S. District Court Andre Birotte heard oral arguments in Soltysik v Padilla, c.d., 2:15cv-7916. The issue is the law that won’t let members of unqualified parties show their party on the ballot (for Congress and partisan state office), even though members of qualified parties may do so. A decision is expected very soon.

Hawaii: the Ninth Circuit will hear Democratic Party of Hawaii v Nago, 13-17545, on May 4. The same panel, on the same day, will also hear the Montana Republican Party case (see page two). Both cases attack open primaries.

Illinois: as noted in last month’s issue, on February 12 a U.S. District Court struck down the law requiring newly-qualifying parties to run a full slate of candidates, even though old parties need not do that. On March 25, the state asked for a stay of that decision, and also filed a notice of appeal to the Seventh Circuit.

North Carolina: any day now, a 3-judge U.S. District Court will decide whether the state’s new U.S. House districts are constitutional. All of the briefs had been submitted by March 15. Harris v McCrory, m.d., 1:13cv-949.

Ohio (1): on February 24, the Sixth Circuit agreed with a lower court that the Ohio law, making it a crime to knowlngly make a false statement about a candidate, violates the First Amendment. Susan B. Anthony List v Driehaus, 14-4008.

Ohio (2): on February 11, the Sixth Circuit upheld a state law keeping all party labels off the November ballot for judicial races, even though judicial candidates are nominated in partisan primaries. The Democratic Party had brought this lawsuit. All members of the Ohio Supreme Court are Republicans. Ohio Council 8 AFGE v Husted, 10-4006.

Ohio (3): on March 11, a state trial court ruled that the state must allow 17-year-olds who will be age 18 by the November election to vote in the March 15 presidential primaries. State law already lets 17-yar-olds do this for primaries in general, but the Secretary of State had interpreted the law not to include presidential primaries, on the grounds that it isn’t really a primary, but an election for Delegates. But the Court said the presidential primary does not elect delegates; it merely settles which presidential candidate can choose delegates. State ex rel Schwerdtfeger v Husted, 16cv-2346, Franklin.

Ohio (4): a state trial court will hear Libertarian Party of Ohio v Husted on April 5. The party argues that the 2013 ballot access law, saying new parties should nominate by convention, violates the State Constitution, which appears clearly to require that all parties, even new ones, must nominate by primary.

Virginia: the Fourth Circuit will hear Sarvis v Alcorn, 15-1162, on May 10. The issue is the law that says the qualified party nominees always have the top spot on the ballot.

The usual chart that shows petitioning progress will return in the May issue. During March, the Libertarian Party qualified for party status in Oklahoma. The Constitution Party finished its presidential petition in New Jersey, and is almost finished in South Dakota.

Maryland: Delegate Alonzo Washington has introduced HB 1559, to lower the number of signatures for a statewide independent candidate from 1% of the number of registered voters (approximately 38,000) to exactly 10,000.

Minnesota: SF 2381, an election law bill with many different issues, has some helpful and some hurtful provisions for minor parties and independents. The bill moves the non-presidential primary from August to June, which automatically moves the non-presidential independent candidate deadline from May to March. That provisional would almost certainly be unconstitutional.

But the bill removes language from the independent candidate petition that seems to tell signers that they must not vote in the primary. Also it lowers the number of signatures for independent candidates in special elections.

Oregon: on March 2, the legislature passed SB 1501 and SB 1599. They make it somewhat easier for parties to remain ballot-qualified. Earlier this year the legislature passed a bill to automatically register every adult citizen known to exist, unless that individual declines. The effect of the bill is to vastly increase the number of registered voters in Oregon. SB 1501 and 1599 provide that when the Secretary of State determines if parties have enough registered voters to remain on the ballot, the calculation will exclude the newly-registered automatic voters, since virtually none of them will have enrolled in a party. However, the relief only lasts through 2018.

Year	Case Name	State	Court	Citation	Requirement
1966	Whitley v Johnson	Miss.	U.S. Dist.	260 F Supp 630	10,000 (approx. 2.5%)
1968	Williams v Rhodes	Ohio	U.S. Supreme	393 US 23	15% of last gub. vote
1970	Socialist Labor Party v Rhodes	Ohio	U.S. Dist.	318 F Supp 1262	7% of last gub. vote
1970	Sweetenham v Rhodes	Ohio	U.S. Dist.	318 F Supp 1262	4% of last gub. vote
1970	Beller v Adams	Fla.	State Supreme	235 So 2d 502	(regis) 5% of no. of reg. voters
1974	Danciu v Glisson	Fla.	State Supreme	302 So 2d 131	5% of no. of reg. voters
1975	Lendall v Bryant	Ark.	U.S. Dist.	387 F Supp 397	15% of last gub. vote
1977	American Party v Jernigan	Ark.	U.S. Dist.	424 F.Supp. 943	7% of last gub. vote
1977	Lendall v Jernigan	Ark.	U.S. Dist.	424 F.Supp. 951	10% of last gub. vote
1979	Ill. Bd. Elec v Socialist Workers	Ill.	U.S. Supreme	440 US 173	5% of last vote cast
1980	McLain v Meier	N.D.	8th circuit	637 F 2d 1159	15,000 (approx 3.3%)
1980	Greaves v North Car. Bd Elec.	N.C.	U.S. Dist.	508 F Supp 78	10% of last gub. vote
1981	Soares v North Car. Bd. Elec.	N.C.	U.S. Dist.	C-81-590, m.d.	15% of last gub. vote
1982	Socialist Workers Pty v Sec State	Mich.	State Supreme	317 NW 2d 1	(pri vote) three-tenths of 1%
1982	Vogler v Miller	Alas.	State Supreme	651 P 2d 1	3% of last gub. vote
1983	Libertarian Party v Kundert	S.D.	U.S. Dist.	cv-83-3071	10% of last gub. vote
1990	Patton v Camp	Ala.	U.S. Dist.	cv-92V-885	1% of no. of reg. voters
1990	Obie v North Car. Bd. Elec.	N.C.	U.S. Dist.	762 F Supp 119	10% of no. of reg. voters
1992	Norman v Reed	Ill.	U.S. Supreme	502 U.S. 279	50,000 (approx. 1.9%)
1992	Oviatt v Baxter	Iowa	U.S. Dist.	4:92cv-10513	2% of last gub. vote
1993	Patriot Party v Mitchell	Penn.	U.S. Dist.	826 F Supp 926	2% of winner’s vote
1994	Ptak v Meyer	Colo.	U.S. Dist.	94-N-2250	1,000 for legislature
1996	Cit. to Est. Reform Pty v Priest	Ark.	U.S. Dist.	970 F Supp 690	3% of last gub. vote
2003	Maryland Green Party v Bd Elec.	Md.	State Supreme	832 A 2d 214	1% of no. of reg. voters
2004	DeLaney v Bartlett	N.C.	U.S. Dist.	370 F 2d 2d 373	2% of no. of reg. voters
2006	Green Party of Ark v Daniels	Ark.	U.S. Dist.	445 F. 2d 1056	3% of last gub. vote
2006	Lee v Keith	Ill.	7th circuit	463 F 3d 763	10% of last vote cast
2010	Daien v Ysursa	Idaho	U.S. Dist.	711 FS 2d 1215	1% of last pres. vote
2010	Libertarian Party of Tn. v Goins	Tenn.	U.S. Dist.	793 FS 2d 1064	2.5% of last gub. vote
2012	Green Party of Tn. v Hargett	Tenn.	U.S. Dist.	882 FS 2d 959	2.5% of last gub. vote
2016	Green Party of Ga. v Kemp	Ga.	U.S. Dist.	1:12cv-1822, n.d	1% of no. of reg. voters

This table lists the 31 judicial decisions that struck down the number of signatures for a candidate or a political party to get on the general election ballot, during the period 1930 to the present day. The table also includes two cases in which courts struck down some other numerical requirement other than a petition. They are the old Florida requirement for a party to have a certain number of registered voters, and the old Michigan law passed in 1976 that required a party to be listed on the primary ballot, where at least three-tenths of 1% of the voters had to check the box next to a party’s name, saying they wanted that party to be on the November ballot.

It has been difficult for lawsuits against the number of signatures to win, because in 1971 the U.S. Supreme Court upheld Georgia’s petition requirement for independent candidates, and the nominees of unqualified parties, to get on the ballot. That petition was 5% of the number of registered voters. The case was Jenness v Fortson. Since then the U.S. Supreme Court has emphasized repeatedly that there is no litmus test to evaluate petition requirements, and that courts are supposed to look at the evidence, and decide if the state really needs to require a large number of signatures.

Some of the cases above won because it was obvious that the petition requirement was not needed. For example, the two victories in the U.S. Supreme Court against Illinois were both based on the fact that the state required only 25,000 signatures for statewide candidates, yet required more signatures to get on the ballot in subdivisions of the state.

Some of the other cases were won because the requirements struck down were in excess of 5% of the number of registered voters. This was true in several cases in Arkansas, and North Carolina, and one in Illinois.

In a few cases above, the court did not need to make a decision, because the state conceded its requirement was unconstitutional. This is true for the South Dakota 1983 case, the 1981 North Carolina case, and the 1992 Iowa case.

On March 7, Michael Bloomberg said he would not run for President in 2016. He said he prefers Hillary Clinton to Donald Trump, and is afraid if he ran, he would be helping Trump. Bloomberg probably would have run if Bernie Sanders appeared likely to be the Democratic nominee. Bloomberg had already rented eight offices to coordinate petition gathering in North Carolina and Texas (the two states with the earliest deadlines for an independent), and had already vetted Michael G. Mullen for vice-president. Mullen is a retired admiral and former chair of the Joint Chiefs of Staff.

Pennsylvania requires presidential primary candidates to submit 2,000 signatures of party members. If the petition appears to have that many signatures, it will be accepted unless someone challenges it. John Kasich only submitted 2,184 signatures, and a supporter of Marco Rubio then challenged Kasich’s petition. In state court, Kasich’s attorney admitted that the petition didn’t have enough valid signatures, but said the challenge was void because it had been filed at 5:13 p.m. of the last day for challenges, and that he believed the challenge had to be filed by 5 p.m., although the law doesn’t say that. The state court delayed ruling on the matter, and considered referring it to a higher state court, but then on March 16 the challenger withdrew his challenge. By then Rubio had dropped out. The primary is April 26.

The Legal Marijuana Now Party is almost finished with its petition for party status in Nebraska, and is also petitioning in Iowa. Its presidential nominee is Dan Vacek of Minnesota.

When filing closed for the Republican primary in the District of Columbia, no Republican had filed to run for Delegate to the U.S. House. Therefore, any unqualified party that runs for that seat is very likely to poll the needed 7,500 votes to attain qualified party status. The Libertarian Party won D.C. qualified status in 2012 by polling 16,524 votes for that office, a high vote partly caused by the lack of any Republican in that race in 2012. The Libertarians lost party status in 2014 when the Republicans did run for that office.

Arizona: Jill Stein 609; Kent Mesplay 139; write-ins or blank 17. These are not completely final results.

Massachusetts: Jill Stein 768; Sedinam Moyowasifa-Curry 78; Darryl Cherney 54; Kent Mesplay 37; William Kreml 24; write-ins 436; uncommitted slate 199.

Missouri: Austin Petersen 851; Steve Kerbel 401; Marc Allan Feldman 241; Cecil Ince 134; Rhett Smith 99; uncommitted 1,172.

North Carolina: Gary Johnson 2,415; John David Hale 327; Barbara Joy Waymire 268; Austin Petersen 189; Darryl W. Perry 118; Steve Kerbel 109; Derrick Reid 74; Cecil Ince 72; Jack Robinson 70; Marc Allan Feldman 66; Rhett Smith 43; no preference 2,067.

Idaho: Scott Copeland 250; J. R. Myers 139; Patrick Ockander 96.

Missouri: uncommitted 682.