U.S. DISTRICT COURT ENJOINS ILLINOIS 5% PETITION REQUIREMENT FOR U.S. HOUSE

On August 25, U.S. District Court Judge Sue Myerscough, an Obama appointee, enjoined the Illinois petition requirement for independent candidates, and the nominees of unqualified parties, of 5% of the last vote cast. Gill v Scholz, c.d., 3:16-3221. The plaintiff, Dr. David Gill, had filed the lawsuit on August 1. He is an independent running in the 13^th district in central Illinois.

He needed 10,754 valid signatures. He submitted almost 12,000, but after he was challenged, he was found to have only 8,593 valid. After he was disqualified, he filed the lawsuit, arguing that the requirement is so difficult, it is unconstitutional.

He presented evidence that in the entire history of government-printed ballots, starting in 1889, only three U.S. House candidates had ever overcome a petition hurdle as great as 10,754. They were Wendell Fant, in North Carolina in 2010; Frazier Reams, in Ohio in 1954; and Jack Gargan, Reform Party nominee, in Florida in 1998.

Fant was not actually a candidate. Instead, the Service Employees International Union put his name on an independent petition without getting his decision to run. The SEIU had hundreds of canvassers, who went door-to-door, and if someone wasn’t home, they came back again and again. After all that work, Fant declined to run.

Gargan had 189 days in which to circulate his petition, and the backing of the Reform Party, which was well-organized in Florida.

Reams had been an independent member of Congress, representing Toledo, Ohio, starting in 1950. He was permitted to start his petition as early as he wished.

By contrast, Gill only had 90 days in which to circulate his petition, and that was a key fact in the decision. He is an emergency room physician and yet he found time to personally collect 5,000 signatures. He testified that he could have met the requirement with more time. Before 1984 Illinois let independent candidates begin to petition as early as they wished, but the legislature confined the period to only 90 days in a bill passed in 1983. Part of the evidence in the case was the transcript of the legislative debate on the bill. The author said the purpose of the bill was to prevent incumbent legislators from facing competition from independent candidates.

The state is appealing to the 7^th circuit. Gill’s brief in the 7^th circuit is due September 1.

The candidate who challenged Gill’s petition is also trying to re-open the challenge process, so that he can argue that Gill had fewer than 8,593 valid signatures. The State Election Board is allowing the re-opening.

The decision is the first in history to enjoin a 5% petition for a U.S. House candidate. However, the short petition period and the 5% are tangled together in the decision, and it is the combination that was enjoined.

Another factor that influenced Judge Myerscough is that Illinois law says independent candidates need exactly 5,000 signatures in years that end in the digit "2". This suggests that there is no state interest in requiring more than 5,000 in any year. Illinois has never had a crowded general election ballot in a regularly-scheduled U.S. House election. The greatest number of candidates in such an election was six, in 1912, when the petition requirement was 2%, not 5%.

On August 26, the Maryland Board of Elections agreed to settle a lawsuit that had been filed against a 2015 law that requires independent candidates to file a declaration of candidacy in February. The petition itself is due in August. The 2015 even applied to independent presidential candidates.

The lawsuit was filed by Dan Sparaco, an independent candidate for Baltimore city council. Sparaco v Lamone, 1:16cv-1579.

Maryland has in the past lost many lawsuits over early petition deadlines. Before 1977, all independent candidate petitions were due in March, but independent U.S. Senate candidate Bruce Bradley defeated that law in federal court. Then the legislature passed a new law, saying one-third of the signatures were due in March, but the other two-thirds were due later in the year. But in 1980, independent presidential candidate John B. Anderson defeated that law. So Maryland gave up and moved all independent petition deadlines to August, until the 2015 law that required a very early declaration of independent candidacy.

On August 9, the Connecticut Secretary of State agreed to settle the lawsuits Libertarian Party of Connecticut v Merrill, 3:15cv-1851, and Wilmoth v Merrill, 3:16cv-223. The first concerned the ban on out-of-state circulators for general election petitions, and the second for primary petitions. Both laws had previously been enjoined, and the state decided not to try to defend them any longer.

On August 5, the lawsuit filed by Gary Johnson and Jill Stein lost in U.S. District Court. Johnson v Commission on Presidential Debates, 1:15cv-1580 (D.C.).

The lawsuit had charged that the Commission violates the anti-trust laws. The decision says, "Antitrust laws govern commercial markets and not political activity."

The decision is surprisingly careless with the facts. It purports to list the presidential candidates who were on the ballot in states containing a majority of the electoral vote, yet who polled under 1%. It claims that Ron Paul was one of these candidates "in 1998 and 2008". Anyone knows that 1998 was not a presidential election year. And Ron Paul was only on the ballot in Louisiana and Montana in the general election of 2008; those two states obviously don’t have electoral votes equal to a majority of the electoral college.

The decision omits Ralph Nader’s 2004 showing, yet he was on the ballot in states containing 278 electoral votes (270 is a majority). Yet the decision lists Virgil Goode in 2012, the Constitution Party nominee, as having been on the ballot in states with a majority of the electoral vote, but actually he was on in states with 257 votes. The opinion also misspells the surnames of Howard Phillips ("Philips") and Harry Browne ("Brown").

The decision also said that the Obama and Romney campaigns in 2012 created the 15% poll rule. This is such a large error, the judge corrected herself and re-issued a new opinion on August 25. But she didn’t correct the other errors. The decision also said that Ralph Forbes, who lost a debates lawsuit in the U.S. Supreme Court in 1996, had run as an independent for U.S. Senator in Arkansas, but actually he had run for the House. So far, no notice of appeal has been filed by Gary Johnson or Jill Stein.

Arizona: on August 26, the State Supreme Court upheld the 2015 law that increased the number of signatures for Libertarians to get on their own party’s primary ballot by 23 times. For statewide office this year, the old petition requirement was 133; the new one is 3,034. Only registered Libertarians and registered independents can sign. The opinion said nothing about the fact that parties that have been on the ballot less than four years (such as the Green Party) only need 806 signatures. Graham v Tamburri, cv-16-143. The 2015 law also increased the number of write-in votes in the primary for a Libertarian to be nominated, also to 3,034. But someone running in the Green Party only needs one write-in to be nominated. The same signature issue is pending in federal court, along with the write-in issue. The State Supreme Court decision did not mention the write-in issue.

California: on August 12, U.S. District Court Judge Michael Fitzgerald refused to enjoin the law that requires independent presidential candidates to get 178,039 signatures in 105 days. De La Fuente v Padilla, c.d., 2:16cv-3242. The judge said the Ninth Circuit had already upheld a similar law in Hawaii. But the Hawaii law was 1% of the last presidential vote, whereas the California law is 1% of the number of registered voters. Also, the Hawaii petition was due 60 days before the general election, and could be started as early as the candidate wished, and only required 3,711 signatures. The California petition is due 88 days before the election. Rocky De La Fuente will seek declaratory judgment so that all these facts can be presented.

Hawaii: on August 15, the Ninth Circuit said the Democratic Party’s lawsuit against the open primary must fail, because the party didn’t provide any evidence that the open primary injures the party. Democratic Party of Hawaii v Nago, 13-17545.

Kentucky: on August 26, the Sixth Circuit upheld the definition of qualified party, a group that polled 2% for President. Libertarian Party v Grimes, 16-6107. The other plaintiff is the Constitution Party. The parties pointed out that many one-state parties exist and never run anyone for President, and such parties could therefore never be qualified. But the opinion says the plaintiff parties do run presidential candidates, so they don’t have standing to complain. This leaves the door open for some other Kentucky party, which has no interest in the presidential election, to bring a similar lawsuit. Kentucky and Washington are the only states in which it is impossible to be a qualified party without entering the presidential race.

Nevada: on August 16, the Green Party sued over the June 3 deadline to submit a petition. Nevada Green Party v Cegavske, 2:16cv-1951.

Ohio: on August 29, the U.S. Supreme Court refused a request by the Libertarian Party to put it on the ballot. Libertarian Party of Ohio v Husted, 16A181. As a result, Gary Johnson will be on the ballot with no label. The case remains alive in the Sixth Circuit, and a parallel case is pending in state court.

Pennsylvania: on August 10, U.S. District Court Judge Mark Hornak enjoined a law that bans out-of-state circulators for initiative petitions. OpenPittsburgh.Org v Wolosik, w.d., 2:16cv-1075.

Pennsylvania(2): on August 15, Rocky De La Fuente filed a lawsuit to get on the ballot. His petition was not challenged, but the state rejected it because he ran in the Democratic presidential primary and because he is a registered Democrat. De La Fuente v Cortes, m.d., 1:16cv-1696.

Texas: on May 10, independent presidential candidate Souraya Faas filed a lawsuit against the May 9 petition deadline for independent presidential candidates. Faas v Cascos, s.d., 4:16cv-1299.

~	Demo.	Rep.	Lib’t.	Constitn	Green	Wk Fam	Indp. Party	other
Alabama	6,091	7,810	– –	– –	– –	– –	– –	– –
Arizona	10,370	5,070	359	– –	561	– –	– –	561
Iowa	41,782	27,183	– –	– –	– –	– –	– –	– –
Kentucky	65,648	78,658	– –	– –	– –	– –	– –	– –
Minn.	32,426	14,701	777	– –	1,260	– –	1,967	1,304
N. Mex.	4,904	1,998	268	38	244	– –	– –	212
Ohio	36,968	36,968	– –	– –	– –	– –	– –	– –
Oregon	23,556	5,019	882	246	1,452	1,317	1,449	471
Rhode I.	8,848	2,828	– –	– –	– –	– –	– –	504
Utah	38,066	48,026	4,350	2,144	– –	– –	– –	3,738
Virginia	7,249	2,841	– –	– –	– –	– –	– –	– –
TOTAL	275,908	231,102	6,636	2,428	3,517	1,317	3,416	6,790

States above let income-tax payers send money to the party of their choice. The chart above lists amounts for each party. Ohio does not let taxpayers decide which party to help, and only lets taxpayers help parties that polled 20%. Other states let the taxpayer decide which party to help. Entries in "Other" column are: Ariz., Americans Elect; Minn., Grassroots $540 & Legalize Marijuana Now $764; New Mexico, Independent American; Oregon, Progressive; Rhode Island, Moderate; Utah, Independent American. "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
2015	280,223	246,396	1,777	7,263	174	2,455	12,078
2016	275,908	231,102	3,517	6,636	561	2,428	6,229

STATE	Jill Stein	William Kreml	S. K.C. M.Curry	Darryl Cherney	Kent Mesplay	Elijah Manley
Alabama	4	0	0	0	0	0
Arizona	5	0	0	0	1	0
California	34	2	3	5	2	0
Colorado	5	0	0	0	0	0
Connecticut	2	0	0	0	0	0
Delaware	4	0	0	0	0	0
Dist. Columbia	1.5	one-fourth	0	0	0	one-fourth
Florida	4	0	0	0	0	3
Georgia	4	0	0	0	0	0
Hawaii	3	1	0	0	0	0
Illinois	22	1	0	0	0	0
Iowa	3	0	0	0	1	0
Kentucky	0	0	0	0	0	0
Louisiana	3	1	0	0	0	0
Maine	5	0	1	0	0	0
Maryland	6	0	0	0	0	0
Massachusetts	8	0	2	0	0	0
Michigan	11.5	one-half	one-half	one-half	one-half	0
Minnesota	4	0	3	0	0	0
Mississippi	4	0	0	0	0	0
Missuori	0	0	0	0	0	0
Nebraska	2	0	0	0	0	0
Nevada	4	0	0	0	0	0
New Jersey	5	0	0	0	0	0
New Mexico	3	1	0	0	0	0
New York	16	1	0	1	0	0
North Carolina	4	0	0	0	0	0
Ohio	6	2	1	0	0	0
Oklahoma	2	0	0	0	0	0
Oregon	6	0	1	1	0	0
Pennsylvania	8	1	0	0	0	0
Rhode Island	4	0	0	0	0	0
South Carolina	3	5	0	0	0	0
Tennessee	3.5	one-half	0	0	0	0
Texas	15	1	3	2	2	0
Virginia	3	0	0	0	1	0
Washington	5	0	0	0	0	0
Wisconsin	7	1	0	0	0	0
Wyoming	2	0	0	0	0	0
Latinx Caucus	2	0	0	0	0	0
Gay Caucus	2	0	0	0	0	0
Women’s Cau.	2	0	0	0	0	0
Youth Caucus	2	0	0	0	0	0
TOTAL	239.5	18.25	14.5	9.5	7.5	3.25

Candidates seeking the 2016 Green presidential nomination were Dr. Jill Stein of Massachusetts, William Kreml of South Carolina, Sedinam K.C. Moyowasifza-Curry of California, Kent Mesplay of California, and Elijah Manley of Florida. For Vice-President, Ajamu Baraka, of Georgia was nominated by acclamation. The convention was August 4-6 in Houston.

The 11 states not listed did not send delegates: Alaska, Arkansas, Idaho, Indiana, Kansas, Montana, New Hampshire, North Dakota, South Dakota, Utah, and Vermont. Kentucky and Missouri sent delegations but they didn’t vote. By contrast, in 2012, 17 states sent no delegation; in 2008, 13 states had none; in 2004, 7 states had none.

STATE	REQUIREMENTS		SIGNATURES COLLECTED					DEADLINE
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	ROCKY	McMULL
Ala.	35,413	5,000	*already on	*already on	*too late	*disputed	too late	Aug. 18
Alaska	(reg) 8,399	#3,005	already on	*already on	already on	*already on	too late	Aug. 10
Ariz.	20,119	#35,514	already on	already on	*0	0	2,000	Sep. 9
Ark.	10,000	#1,000	already on	already on	already on	*disputed	already on	Aug. 1
Calif.	* (reg) 59,681	178,039	already on	already on	*too late	*too late	too late	Aug. 12
Colo.	(reg) 1,000	#pay $1,000	already on	already on	already on	already on	already on	Aug. 10
Conn.	no procedure	#7,500	*already on	*already on	*too late	*disputed	too late	Aug. 10
Del.	(reg) 654	6,526	already on	*already on	*too late	*too late	too late	Aug 20
D.C.	no procedure	* #4,421	*finished	already on	*too late	*too late	too late	Aug. 10
Florida	be organized	119,316	already on	already on	already on	*already on	finished	Sep. 1
Georgia	51,912	#7,500	already on	*disputed	too late	*in court	too late	July 12
Hawaii	707	#4,347	already on	already on	already on	*too late	too late	Aug. 10
Idaho	13,047	1,000	already on	*already on	already on	already on	already on	Aug. 30
Illinois	no procedure	#25,000	already on	already on	too late	too late	too late	June 27
Indiana	no procedure	#26,700	already on	too late	too late	too late	too late	June 30
Iowa	no procedure	#1,500	*already on	*already on	*already on	*already on	already on	Aug. 19
Kansas	16,960	5,000	already on	*already on	*too late	*too late	too late	Aug. 1
Ky.	no procedure	#5,000	*9,000	*8,000	0	*5,000	2,000	Sep. 9
La.	(reg) 1,000	#pay $500	already on	already on	*already on	*too late	already on	Aug. 19
Maine	(reg) 5,000	#4,000	*already on	already on	too late	*too late	too late	Aug. 1
Md.	10,000	*10,000	already on	already on	too late	*too late	too late	Aug. 1
Mass.	(est) (reg) 45,000	#10,000	*already on	already on	too late	*too late	too late	Aug. 2
Mich.	31,519	30,000	already on	already on	already on	too late	too late	July 21
Minn.	98,770	#2,000	*already on	*already on	*already on	*already on	already on	Aug. 23
Miss.	be organized	1,000	already on	already on	already on	*500	300	Sep. 9
Mo.	10,000	10,000	already on	*already on	already on	*too late	too late	Aug. 1
Mont.	5,000	#5,000	already on	*already on	*too late	*already on	too late	Aug. 17
Nebr.	5,395	2,500	already on	*already on	*too late	*too late	too late	Aug. 1
Nev.	5,431	5,431	already on	*in court	already on	*already on	too late	July 8
N. Hamp.	*14,866	#3,000	*finished	*finished	*too late	*finished	too late	Aug. 10
N.J.	no procedure	#800	*already on	*already on	already on	*already on	too late	Aug. 1
N. M.	2,565	15,388	already on	already on	already on	already on	too late	June 30
N.Y.	no procedure	#15,000	*already on	already on	*too late	*disputed	too late	Aug. 2
No. Car.	89,366	89,366	already on	too late	too late	in court	too late	June 9
No. Dak.	7,000	#4,000	already on	*finished	*finished	2,500	3,000	Sep. 5
Ohio	30,560	5,000	*already on	already on	*too late	*too late	too late	Aug. 10
Okla.	24,745	40,047	already on	*in court	*too late	in court	too late	July 15
Oregon	22,046	17,893	already on	already on	*too late	*too late	too late	Aug. 30
Penn.	no procedure	*5,000	*already on	*already on	*already on	*in court	too late	Aug. 1
R.I.	16,203	#1,000	*500	*400	*250	*600	0	Sep. 9
So. Car.	10,000	10,000	already on	already on	already on	*too late	too late	July 15
So. Dak.	6,936	2,775	already on	*too late	already on	*in court	too late	Aug. 4
Tenn.	33,816	275	already on	*already on	*disputed	*already on	too late	Aug. 18
Texas	47,086	79,939	already on	already on	too late	too late	too late	May 22
Utah	2,000	#1,000	already on	*already on	already on	already on	already on	Aug. 15
Vermont	be organized	#1,000	already on	*already on	*too late	*already on	too late	Aug. 1
Virginia	no procedure	#5,000	*already on	*already on	*too late	*finished	finished	Aug. 26
Wash.	no procedure	#1,000	*already on	already on	*already on	*too late	too late	July 23
West Va.	no procedure	#6,705	already on	already on	*already on	*too late	too late	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	*already on	too late	Aug. 2
Wyo.	3,302	3,302	already on	*finished	already on	*finished	finished	*Aug. 29
TOTAL STATES ON			47*	40*	23*	14*	7*	“

#partisan label is permitted on the ballot (other than "independent").
"CONSTI" = Constitution Party. "ROCKY" = Rocky De La Fuente. "McMULL" = Evan McMullin.
* = change since Aug issue.
"DEADLINE" means the method with the latest deadline.

The August 1 BAN said there are three state legislators who are Libertarians, in Nebraska, Nevada, and Utah. But there is a fourth, in New Hampshire. Max Abramson of Seabrook left the Republican Party and became a registered Libertarian in May 2016. The Libertarian Party is the first party, other than the Democrats and Republicans, to have legislators in four states since the 1910’s decade.

On August 2, Texas held a special election to fill the vacant 120^th House seat, in San Antonio. An independent, Laura Thompson, defeated her only opponent, a Democrat, but 635 to 585. Thompson is the first independent elected to the Texas legislature since 1936.

On July 29, Missouri representative Keith English said he had switched from being a Democrat to an independent. He lives in Florissant and will run for re-election as an independent in the 68^th district.

Joe Baca, a former Congressman from California, said on August 8 that he changed his registration from Democratic to independent.

Better for America nominated Evan McMullin on August 24. There was no actual meeting. McMullin had declared as an anti-Trump independent candidate on August 8. He has ties to the Republican Party.

Reform Party nominated Rocky De La Fuente on August 9. The party had held a national convention in Bohemia, New York, on July 29, but had recessed until the delegates could confer with each other and the candidates by electronic means.

Natural Law: nominated Socialist Party nominee Emidio Soltysik on July 28.

American Independent Party nominated Donald Trump on August 13 in Sacramento. California permits two parties to jointly nominate the same presidential candidate, so in California Trump will be on the ballot as "Republican, American Independent." Some counties may abbreviate that as "Rep, AI". This is the first time two parties have nominated the same presidential candidate in California since 1940.

Peace & Freedom Party: nominated Gloria LaRiva on August 13 in Sacramento. This is the first time that PFP has nominated a presidential candidate who is also the presidential nominee of a party with "Socialist" or "Socialism" in its name. LaRiva is also Socialism & Liberation nominee.

Besides the tickets on page five, there are eleven presidential candidates who will be on in at least two states:

1. Socialism & Liberation: Cal, Colo, Fla, Iowa, La, NJ, NM, Vt, Wash (8 states).

2. Socialist Workers: Colo, La, Minn, NJ, Tenn, Ut, Wash (7 states).

3. Workers World: NJ, Ut, Wis (3 states)

4. Prohibition: Ark, Colo, Miss (3 states)

5. America’s Party: Ark, Colo, La (3 states)

6. Socialist: Colo, Fla, Mich (3 states)

7. indp Lynn Kahn: Ark, Iowa, RI (3 states)

8. Legal Marijuana Now: Iowa, Minn (2 states)

9. indp. Laurence Kotlikoff: Co, La (2 states)

10. Veterans: Colo, La (2 states)

11. indp. Mike Smith: Colo, Tn (2 states)